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HomeMy WebLinkAbout2005-02-14 05-83 ORDERBtem NO. 06-93 Date: February 14, 2005 Item/Subject: Order, Authorizing the City Manager to Execute a Lease between the City of Bangor and Bangor West Side Lade League regarding Shawn Mansfield Memorial Field. Responsible Department: Parks and Recreation, Legal Commentary: The attached Council Order will authorize execimon of a lease between the City and Bangor West Side Little League (BWSLL). This would formalize an exisOng relationship between the parties concerning operation and maintenance of Mansfield Stadium. When Mansfield Stadium was donated to the City in the early 1990's, It was antldpated that a formal lease would be drafted and executed! authorizing BWSLL to operate and maintain the fal for ... a thirty-year permit through 2022. Although a lease was drafted, it was never executed by Me parties. Cry Staff and representatives of BWSLL recently reconvened to review the lease, update It as necessary, and prepare It for formal consideration. Essentially, the City and BWSLI. have been operating under the terms of the lease, even though it has not been formally in place. Both the Parks and Recreation Department and BWSLL support approval of the lease. Department Head Manager's Comments: The Government Operations Committee has reviewetl =Lease, an the Committee recommends approval to the Council. City Manager AssOCHted Information: Order, tins budget Approval q Fr finance Director Legal Approval: Cry Solicitor X Passage _First Reading Page 1 of 1 Referral 05-83 � rc� Assigned to Councilor o'arrico February 14. 2005 CITY OF BANGOR (TITLE.) ORDER Authorizing the City Manager to EzecuR a Lease between the CRy of Bangor and Bangor West Side Little League regarding Shawn Mansfield Memorial Fiefs. BE LT ORDERED BY THE CRY COUNCIL OF THE CRY OF BANGOR THAT the Ory Manager is hereby authorized, on behalf of the Oty of Bangor, to execute a lease, a copy of which is attached to this Order, leasing the Shawn Mansfield Memorial Field located in the Oty of Bangor's Hayford Paris to the Bangor Wert Side Little League for a term ending August 31, 2022 and subject to further terms and conditions as set forth in the lease. q 05- 0anew (YPPLF'yj eutlotiziug the City Manager to Beesute a Lease between She City of angor and tender peat Side Little League Regarding Shaw Mansfield tkmrial Field 05-83 LEASE y/ THIS LEAS / E, eaceuted in duplicate, this ,iday of FEJ3 , , 2005 by and Forecast: CITY OF BANGOR a body politic and coryorate, duly organized and existing under and by vOrae of the laws of the State of Maine, and being located in the County of Penobswl, State of Maine (hereinafter referred to as "Lessor) and BANGOR WEST SIDE LITTLE LEAGUE, a cbmitable ton -profit corporation, duly organized and existing under and by virtue of the laws of the State of Maine, and having an offiw or place of business in said City of Bangor (hereinafter referred to as "Lessee") t I"S'TYaTKx1 Y WHEREAS, the Lessor is the owner of Shawn Mansfield Memorial Field, abaseball facility located within the Lessor's Hayford Park, so-called, formerly known as Fairmount Terrace Park, aM located in the City of Bangor, Cowry of Penobscot, Stam of Maine (hereinafter sometimes refers to as the "Facility"); and WHEREAS, Lessee delves to use certain premises at the Park for purposes of operation and maintenance of a baseball field and smdimn, and construction of necessary appm[enan[ improvements. NOW, THEREFORE, the parties do mutually agree as follows: ARTICLE I Premises The Lessor, for and in consideration of the covenants and agreements as hereinafter provided, does hereby grant unto Lessee, and Lesson does hereby take, in its Presem condition, the following premises: A. A contain parcel of land located in the City of Bangor, Penobswt County, Stam of Maine, located in Lessor's Hayford Park, so-called, together with all improvements now existing thereon, together constituting the Lessor's Shaven Mansfield Memorial Field, as shown on Exhibit"A"attached hereto; 05-83 (I) the non-exclusive right to use, in common with others the"Puking Lot" edjres, to Thirteenth Sheet as shown on Exhibit "A" for the parting ofmomr vehicles by persons attending or participating in authorized activities ai the field; and (4) the right to construct or install additional access routes, utility systems, and parking areas at such locations as may be approved by the Lessor. ARTICLE II phaution This Lease shall become effective on the date of execution by Us parties. This Lease shall remain full force and effect=61 the last day of August, 2022 A.D.; provided, however, this Lease may be terminated by Lessor on default of the Lessce as provided in Article X111 of this agreement. ARTICLE DI Option to Extend If the Lessor shall elect to maintain the Facility in existence beyond August 31, 2022, Lessce shall have the option to extend this Lease for a further term, subject to terms and conditions to be negotiated by the parties. Written entice of Lessee's election 10 Macias said option shall he delivered to Lessor no later than June 30, 2022. Thererifter the parties shall attempt 0 negotiate terms for an extension of this Lease. ARTICLE IV No Annual RevNl to consideration of the Whom of We use of the demised premises, as provided hereinafter, Lessee shall pay no rental to Lessor. ARTICLE V Construefion Dam, Building Design, Use and Occupavcv A. Any new buildings, asione ros improvements, or appurtenances thereto, including playing fields in be constructed by the Lessee upon the demises premises, shell be constructed in accordance with applicable City of Bangor Ordinances, except that the design and layout of alt buildings, srucnres or improvements shall father be approved by the Lessor. The design and layout shall include aplan designating the exterior appearance, including building walls and landscaping and driveways and parking lots, and shall be designed so as not in deruct from the Viscounts, and use of the su"Wrding areas for public park purposes. All plans required under Us Article shall automatically become a pan hereof and he attached as Exhibits upon approval by the Lessor. 05-83 B. Lessee shall use, occupy all buildings, structures and improvements together with land herein described, for purposes of operating a baseball diamond. In the scheduling of use of the Facility, priority shall be givento the needs of We residents ofthe City of Bangor. Lessor shall be entitled on reserve three (3) days of each yew doring the term of this Lease for special events, the preceeds of which shall go to the Operations Fund as provided in Article IV below. All of the activities of the Lessee shall be conducted totally within the demised Premises, unless otherwise authorized by the Lessor. C. Lessor shall provide necessary maintenance for all buildings, structures or improvements now existing on the demised premises or to he conshurowd thereon. Lessor shall provide all routine maintenance and trash collection for all areas on the subject premises. Lessor shall provide a sufficient number of consumers and cooperate with the Lessee in maintaintng the premisesinacleanandorderlycondifion. Lessorshallberesponsiblefordleremovalofallhash after special events conducted or sponsored by the Lessee. Lessor shall provide all necessary snow plowing for the subject premises. D. All vehicles belongingto invites, officers and employees of the Lessee shall only be parked in designated spaces in parking meas on the premises or in other parking meas as the Lessor's Parks & Recreation Director may designme from time to time. E. In the use and occupancy of the subject premises, Lessee, its officers and invitees, Shall comply with all applicable local regulations, including but not limited to Chapter 231, Public Parks, of the Code of the City of Bangor, relating to conduct in public Parks, as such ordinance may from time to time be amended. F. Lessor shall pay all censurable utility costs resulting from the Lessee's use and occupancy of cine subject promises, including but not limited to lights and activity charges from Bangs Hydro-Elechlc Compang water, sewer and all similar utility expenses. Should an issue arise as to the reasonableness of utility costs, that question shall he resolved by the Parks & Recremion Director of the Lessor and the Facilities Meager appointed by Lessee jointly. Their decision with respect to these expenses shall be final. O. Lessee shall have the exclusive right to all fees and revenues generated from the operation of the subject premises, but all such fess and revenues, net of expenses, shall be dedicated to operation and maintenance of the Facility as provided in Article VI of for Lease, and Lessor shall be satitied to an accounting of all such fees and revenues on an annual basis, said accounting In be not later than December 31of area year. H. Lessm,tlrough its agents, shall have at all reasonable times access to go upon and impact the Subject premises and any other buildings, structures or improvements now existing or to be constructed thereon. 05-83 ARTICLE VI Ouerations Fund Lessee agrees to use its best efforts to generate and obtain funds to be used in the maivtevaune, repair, upkeep and improvement of me Facility and grounds as the Lessee in its sole discretion determines to be necessary for that purpose. This provision shall in an way be construed to alleviate the responsibility of lessor for all of these conditions as provided for in this Lease. Lessorshall have fidI ightsofaudit asmthe sources and usesofall suchfunds. All such funds shell be deposited On an Operations Fund to be controlled and administered by the Advisory Committee established under Article XXB of this Leme. ARTICLE VII TWe to Build'Buildiness, Structures: Improvements nd Personal Prooerly Title to any new improvements constructed on the subject premises by the Lessee and to all perear el property used in the operation of the Facility during the tern of this Lease, or any exteasiun hereof, shall aummetically vest in the City of Bangor at the time of installation, auwctiov or delivery m the subject premises ethos Lessee, prior to the construction of any buildings, structures or improvemeaa and 9' or the delivery mf such personal properly, shall have noted Lessor that Less" wishes m gcaM a security mone"o' a third party m secute the hrcerert ofthe [hind party in such property and an agree to allow the third perry to remove the property inthe even of default by the Lessee, provided the third party repa'ms any dsurge to the subject premises caused by the removal ofsuch property, and stall0 y grant a scram interest to a third party atter ontalulvg the consent of lessor, which consent shall not he umensonebly widd�eld. No security interest other than apmchese money s"mity interest may granted by the Lessee in any such property. No semvity interest shall be granted by the Lessor which many way encumber the demised premises or any improvements existing Hereon as of the date of executlun of this lease. Lessee No fregaesled by Lesaor,from time to time, cause any necessarydocaenre oftitie to be executed on its babufto complete the mor ffoftltle to such new improvements or personal property to the City of Bangor. ARTICLE VIII Sinns The Lessor recognizes Use need of the Lesee to provide reasoruble signs in conjunction with the ase, mempeacy and maintenance of the subject praises by the Lessee and to Rut end agrees that signs may he installed at locations in Lessor's Hayford Park, either on or off the subject premises as may be approved by Lessor's Forks & Recreation Director; provided, Mwever, all signs shall comply with applicable regulations major City of Bangor Ordinances and the Laws of the Sate of Maine. ARTICLE IX Nondiscrimination Lessee in theme and occupancy of the subject premises shall not on the grounds of sex, race, color, creed or national origin or any other rummer prohibited by law, discriminate or permitdiscriminmionagainstenypersonorgwWOfpersoreinanyma or. Lesseeshalluseita best efforts to comply with the scheduling and use oagri emelm of the Memorandum of Donation from Stephen Xing to Lessor dated August 2, 1991, a copy of which is attached to this Lease. ARTICLE X Covenant of Quiet Enimment The Lessor, subject to the teens and provisions of this Leaee, on payment of the were, and observing, keeping and performing all the terms and provisions of this Lease on its part required to be observed, kept and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the subject promises during the tear and any exteraion hereof without hindrance or ejection. ARTICLE XI Damagge by Fire or Other CesuallV Lessor covenants and agrees that in the event of destruction or damage of the Facility or of other improvements on the demised premises, or any Part thereof, and as often as the improvements shall be destroyed Or damaged, by fee or other casualty, the Lessee shall have the right, but not the obligation, to rebuild and repair the improvements for occupancy. If Lessee eleps not to rebuild and repair, Lessor anNor Lessor shall have the option to terminate this Lease and shall m notify the other party within one hundred and twenty (120) days after aid fire or odor casualty. In the event Lessee elects not to so terminate, Lessee shall within one hundred and twenty (120) days of said fire or other casualty give notice to Lessor of such election. In Ota event Lessee elects not to terminate this Lease, all improvements shall be restored to their state and condition prior to said fire other casualty, or shall be reconstructed in accordance with plans approved by lessor. In such evens all such reconstruction shall be at Lessee's sole expense, but Lessee shell in such event be entitled m mceive and apply the fall proceeds of any applicable fire, casualty or property damage hamenee for the purpose of reconstruction of the Facility or other improvements. ARTICLE XR Indemaity, L' b'f I ; Fire and Extended Coverage Insumn" Lessee shall indemnify and save barmless the Lesser and all of its employees and agents from and against any and ail claims, liability, damage, expense, cause of action, suits or judgments, by or on behalf of any person or permns, fan or firms, corporation or corporations in or about the subject promises and resulting in whole or part from the negligence of the Lessee, or a nyrepresenmfive,invite,oRica,employeeo nmtoflssee. For this purpose only, Lessee hereby expressly waives any and all immanlTy it may have under the Maine Workers Compensation Act in regard to such claims made or asserted by Lessee's agents, servants Or employees, including Lessee's volume" agents, servants or employees against the City of Bangor for much the City of Bangor may seek third party contribution from the Losses. Lessee shall provide, at its expense, public liability insurance coverage for the leased Premises to be in effect dudvg the entire teOr of this Lease, with coverage limits for liability of at least $400,000 per occuvence, said amount to be increased to the limits for liability under the Maine Tort Claims Act, 14 M.R.S.A. §81010 seq., o the some amended from time m time. Lessee shall providelessor, at least normally. with proofofsach insurance coverage. The Lessor shall he listed as an additional named inured on all such policies of insurance Lessor shall provide hazard insurance in such coverage amounts as Lessor deems appropriate to protect the Premises from all perils and to provide fuh replacement coverage for the Facility and all im movemems and appurtenances m may be extended Lessor shall he the named insured on all such policies of hoard insurance, but Lessee shell ae entitled to the proceeds of any such policy Order the circumstances and as described in Article XI above. (1) If Lessee shall neglect or fail in perform or observe any of the covenam , terms, provismas, or covdidons on its parlto be performed, or observed, and such neglect or failure shell continue for a period of thirty (30) days after written notice thereof by Lessor, or if such covenmta, terve, provisions or conditions cannot be performed or observed within said thirty (30) day period, if Lessee fails m diligently prosecute the curing Of such neglect or failure; or (5) If a receiver, guardian,conservator,of trustee in bankruptcy or other similar officer shall be appointed to take charge of all or any substantial part of the Lessee's property by a cannot of comp rbadjurisdiction; or (b) If a petition shall be filed for a revrgenization of the Lessee under any provisions of the Bm*mptcy Act now or hereafter matted; or (7) If the Lessee shall fail ro maintain its corporate status as a charitable non-pro5t corporation under Maine law; Won, in my of the said cases 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 promises or any Part thereof, in the name of the whole and repossess the same as of the Lessor's former 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 of any mount of 05-83 trespass, and without prejudice many remedies which might otherwise be used for aneam of rent or preceding breach of reverend, and upon entry as aforesaid, this Lease shall terminate. ARTICLE XIV Assigormart. Sale and Subletline The Lessee may not at any time assign, sell, convey a tmnsfu this Lease or my irderand therein, or sublease or sublet or rent the premises, or any pert thereof, without the prior written consent of the Lessor and provided that such assigvee shall be anon -profit organisation organized for porposu substantially similar In that of the Lasser. In the event of such assigwnent or number of this Lease, Lessee shall not be relieved ffom any obligations under this Lease, unless specifically released by the Lesser at the time of such assignment or unnsfer. Lessee may charge outside groups reasonable face for use of the Facility as and to the cannot Permitted under Article 2.7 of the Stephen King Memorandum of Donation, and Lessee's charging of such fees shall not be deemed a violation of this Article. Theamomtofsuchims shall be raviewei in accordance with the Lessoo,s pinks & Recreation Director, and all such feu, net ofeapenses, shall be deposited to the Operations Food created under Article VI ofthis Lease. ARTICLE XV Waiver Faihae on the part of the Lessor to complain of any action or ern -action on the pan of Lessee no matter how long the same may continue, shall never be deemed to be a waiver by the Lessorofanyof Lessonsrightshereunder. Funkier,itiscovenantedandag dNatnowaiverat my time of any of the provisions hereof by Lessor, shall be construed as a waiver of any of the other provisions hereof, and that a waiver at my time of any of the provisions hereof shall not be constmedatmysubsequentt emawaivaoffiesameprovisiom. Theapprovalof Lessorm or of my action by the Lessee requiring the Lessor's consent or approval shall art be deemed to waive or render unnecessary, the Lessor's consent or approval to or of any subsequent similar art by the Lessee. ARTICLEXVI Notices Notices to the Lessor provided for thNis Lease shall be sufficient if sent by registered or certified mail, reran receipt requested, postage prepaid, to: CityofBargor Attention: City Manager 7311arlow Street Bmgoq Maim 04401 05-03 and notices to the Lesson are to he sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: Joseph Ferns, Esq. IN N. Main Street Brower, Maine 041112 or such other address as the parties may designate to each other in writing from time to time. Lessee shall mahnain at all times in the offices oftbe Dirator of the City Parks & Recreation an up-to-date listing of the name, address, and telephone number for its current president, and all other persons responsible for the day -today operation of the Facility. ARTICLE XVH Invaliddy of Particular Provisions If any terms or provisions of this Lease or the application thereof to any parson or circumstances to any extent, shall be determined by a court of law to be invalid or unenforceable, the remainder of this Lease or the application of such terms and provisions to persons or c'ucumsrances other than m those an which it is held invalid or unenforceable shall not be affected thereby and each term and provision of this Lease shall be valid and be enforceable to dre fullest extent permitted by law. ARTICLE XVHI Federal Gt buderest' Demised Premises The parties to this Lease acknowledge that the Lessor's Hayford Park, including the premises demised herein, were Originally acquired by the Lessor from the United Stams of America under Ne Federal Surplus Property Act; and that the terms coder which Lesam acquired ride includes certain restrictions on the use or =star of the land concerned. The pardes therefore agree that in the event it shell be determined by competent Federal authority that Us Lease, or any provision hereof, is contrary to any Federal reservation or restriction regrading transfer or use of the demised premises, then this Uses shall be donmed modified to accord with such reservations or restrictions, and the parties shall execute any amendment necessary In an nudity this Lease. If in such event this Lease cannot be modified to conform to applicable Federal reservations or restrictions without defeating the essential purpose hereof, Nen this Lease shall be deemed void. ARTICLE XIX Construction The beadings appearing in this Lease are intended for convenience and reference only, and not to he considered in construing Nis Lease. OS -0 Nothing cautioned herein shall be dermad or construed by the parties hnem, nor by my dead party, as creating the relationship of principal and agent or of partnership or ofjoint venture between the parties hereto, it being understood and agreed that neither the provisions of this lease concerning rent nor any other provision contained herein or any acts of the parties hereto shall be deemed to create any relationship between the parties hereto other that the relationship of landlord and tenant. This Lease shall be appeared in all respects in a maven consistent with the Memorandum of Donation firm Stephen Mng to the City of Bangor dared August 2, 1991, setting fmlh the terms of Stephen Kings original gift to the Facility an the City of Bangor; and to the extent that any provision of this Lease may be inconsistent with that document, the provisions of this Lease concerned shall be deemed to be modified to conform with the provision of said Memorandum, and otherwise to be void and of an force or effect. ARTICLE XX Governing Law This Lease shall be govemN exclusively by the provisions hereof and by the laws of the Stene of Maim, as the same may from time to time exist. ARTICLE XXI Execution of Agreement A The Lessor hereby represents and emotions that it has taken all necessary procedural and legal steps m required under all Stam and local laws and regulations for the purpose of authorizing the execution of this Lease, and that the execution of this Lease by the City Manager renders this Uses a valid and binding document on the part of the City of Bangor, fully enforceable in all of its terns and conditions by the Lessee. B. Lessee hereby remissions and warants that it has taken all necessary procedural and legal steps as required under all Sure, local and Federal laws and regulations, and all necessary corporate action, to authorize the execution of this Lease by its undersigned renders this Lease a binding and legal document on the part of the Lessee, fully enforceable in 01 of its temrs and conditions by the City of Bangor. ARTICLE XVII Advisory Committee Lessor and Lessee agree to establish an Advisory Consortium who will be empowered by Lessee to manage the day to day operation of the Facility including but rap[ limited to maimtenvrce, scheduling, concession operations, fwd raising, improvements, and repairs. The Advisory Committee will be a standing committee during the term of this Lease and my extension Hereof who will consist initially of the following persons: David Mansfield, Bangor, Maine Dennis Libby, Bangor, Maine Ronald SL Pierre, Bangor, Maine John Stubbs, Bangor, Meme Joseph Ferris, Brewer, Maine Parks and Recreation Director fin the City of Bangor Them members may be removed from office only neon good cause shovm Lessee shall have the right to replace erry vacancies which occur on this Advisory Committee upon the advice and consent of the Lessor. ARTICLE XVIII Memorandum of Lease Lessor and Lessee agree that this Lease "I not be recorded. Lessor agrees that upon request by Lessee, it shag execute and deliver w Lessee a Memorandum of Lease in recordable form and in compliance with the provisions of Title 33, Section 201 of the Maine Revised Statutes Armotated. M WITNESS WIdEREOF, the parties hereto have set their bands and seals the day and year first written above. � 110 _ STATE OF MAINE PENOBSCOT, ss. By: MdiAjfW- Edward A. Permit Its City Manager ,• t -ane 0 &" � /,5- 2005 Then personally appeared the above-named EDWARD A. BARRETT and acknowledged the foregoing instrument to be his fiee act and deed in his said capacity, and the free ad and decd ofsaidbodycorporme. Before me, Notary PubadAttomey-at-La Printed Name: TERRILEECOREY NOTARY PUBOC!MMRE MYOOMMINONE%PIPESOECEMBER24INO- 10 os— STATE OF MAINE a--� PENOBSCOT, ss. /"M✓5 %J� 2005 'Then personally appeared the above-named DAYItl yYV{A1f&`' M acknowledged the foregoing msinanem to be his free act and deed in Itis said capacity, and We free net and deed of said corporation. n Before me Notary Publid - - ]rimedName: TERRI LEE COREY NOTARY PUBLIC -MAINE MYCOMMISSION EXPIRES OECEMSERYi,YOIB Zt 11 xhibit "A" HAYFORO PARK. LEGEND 'SG446 . NOTE: Facilities and areas leased to Bangor west Side Little League by the City of Bangor e underlined on this ketch. The leased area does t include use of the parking area adjacent to thebasketball court as shown on this sketch.