HomeMy WebLinkAbout2002-11-13 03-06 ORDERItem No. i 03 06
Date: November 13, 2002
Item/Subject: ORDER, Authorizing Execution cf Agreement Between the City of Bangor and
Banmak Associates -- Bangor Mall Boulevard Traffic Signal
Responsible Department: Legal
The City of Bangor public Works Department maintains traffic signals for the City and, upon request, for
others. Banmak Associates, owner of the Bangor Mall, has requestetl that the City maintain the Bangor
Mall Boulevard traffic signal. This Order aumorizes the execamn of an agreement to do so. For this year
the City will receive $1,693.89 and there will to annual increases based on the CPI -W. Either party may
terminate the agreement with one year's notice.
- The Infrastructure and Development Support Committee recommended approval at its meeting on
October 29, 2002.
Manal Comments:
�44"�OfHftkr
City Manager
Associated Information: Traffic Signal Maintenance Agreement
Finance Director
Legal Approval:
�Clly Sdicitor
Passage
_ First Reading Page 1 of 10
Referral
03-06
� Assigned M Councilor Parnham November 13, 20D2
CITY OF BANGOR
(MLE.) ORDER, Authorizing Execution of Agreement Between the City of Bangor
and Banmak Associates -- Bangor Mall Boulevard Traffic Signal
6y are Gly cmffxd of the pry ofawgorr
ORDERED,
THAT Edward A. Barrett, City Manager, is hereby authorized and directed, on Behalf
of the City of Bangor, to exe to a Traffic Signal Maintenance Agreement between the
City of Bangor and Banmak Assodates, a copy of which is attached hereto.
M. CITY COwP •
Dnvesber 13. 2002 _.
Passed # 03-06
Dl ¢ ORDER
`RiTLE. •, puMoria3uo Execution of Agreement
betmeea the C1ty of Bangor and Bask
Assaefatee - Bea¢or Mall Boulevard Traffie
Ban= Mau
EXHIBIT "A"
TRAFFIC SIGNAL AGREEMENT
03-06
TRAFFIC SIGNAL MAINTENANCE AGREEMENT
This Agreement is entered into this _7_ day of 2002, by and between
Ore City of Bangor (hereinafter the "City") and Banmak Associates (hereinafter "Bammak').
RECITALS
1. The City is a municipal corporation duly organic and existing under the laws of the
State of Maine, situated in Bangor, Penobscot County, Maine.
2. Banmak is a general partnership duly organized and existing underthe laws ofthe
StatemfMaine.
3. Bammk is the owner of the Bangor Mal, so-called, Bangor Mall Boulevard, Bangor,
Maine.
4. Banmak has expanded the Bangor Mall to add additional stares, and has expanded the
Bangor Mall parking lot.
5. Asaaelementoftheexpansionofthe Bangor Mall,Bannakhasbeenrequire to
install an on-site traffic signal (hereinafter, the "hnprovanent") to control ingress and egress
Goat Bangor Mall Boulevard. The location of said Improvement is more particularly described
in Exhibit A attached here.
6. The City has agreed, subject to ratification of this Agreement by both parties, to
accept and maintain the Improvement in return for Banmak's payment of an annual maintenance
fee and replacement and repair costs to the City.
NOW THEREFORE, in consideration of the foregoing recitals and in consideration of
the rights and obligations set forth herein, the parties hereby agree as follows:
1. Aceentance and Maintenance ofImprovement. The City hereby agrees to accept and
maintain the Improvement provided by Bamnek a a required element of its Bangor Mall
expansion The level of maintenance shall be the same as that provided by the City for similar
traffic signal devices located within the corporate limits of the City of Bangor, owned and
maintained by the City as public traffic signals; and shall W consistent with applicable
maintenance standards for similar traffic signal devices as promulgated or adopted by the United
States Department of Transportation and the State of Maine DepaMrent of Transportation.
2. Annual Ma'nteaanceFee,CostofLivin¢Ad'umnrnta. Consumedly with execution
of this Agreement, Bavmak has paid to the City the total sum of$6,9'l0.39 for maintenance
services previously provided, and to be provided by the City, for the period October 1, 1998
through December 31, 2002. Said payments am mora particularly set out as follows:
1998 (0 quarter) $ 387.46
1999
1,574.65
2000
1,617.16
2001
1,672.15
2002
1q 693.89
Total: $6,945.31
In return for City acceptance and maintenance, Banumak agrees to pay an annual
maintenance fce to the City far calendar year 2003 and subsequent calendar Wars while this
Agreement shall =am in effect This fee shall cover the annual cost of operation and routine
maintenance only. For calendar 2003 and subsequent years, the annual fee shall be adjusted
finA the maintenance fee paid for calendar 2002 ($1,693.89), based on the percentage change in
the Consumer Price Index -Urban Wage Eamers and Clerical Workers, U.S. City Average, all
items and major group figures (1982-84) ("CPI -W"), as published by the United States
Department of Labor,Bureau of Labor Statistics far the preceding calendar year. Por any year in
which said index shall no longer be published by the Bureau of Labor Statistics or other federal
agency, the annual adjustment shall be calculated by reference to such other generally accepted
governmental or independent index of amund inflation as shall be agreed to by the parties.
Annual payments shall be due on March 1° of each and every subsequent calendar year.
Late payments shall be subject m an interest charge Nord to the interest rate Nen in effect for
late payment of City pr W ety races.
In addition to the annual maintenance fee, Bamnak further agrees to pay all electrical
costs associated with the operation of the Improvement
3. Repair and Retowsonent: lieimbrusement. Baamak further agrees to reuuburse the
City for the City's reasonable costs incurred in repairing or replacing the Improvement when
necessary due to accidents or damages to the improvement, regardless of cause, where such
damage negatively impacts the ability of the improvement to perform its designed functions or
where such damage creates a hazard to the safety of me public; provided Nat, if such accidents
or damage result from willful acts by the City or the City's agents or employees, or result from
negligent acts or omissions by the City or the City's agents or employees under circumstances in
which the Maine Tort Claims Act, 14 MRSA sec. 8101 at M., would wave the City's
governmental immunity from civil judgments and suits, then Bamnak shall not be required to
reimburse the City as otherwise required by this paragraph.
Bamnak also agrees to reimburse the City for the City's reasonable costs mcurrecl for
replacement of the Improvement at the and of its useful life, or whenever replacement of the
Improvement is required due m a change in applicable federal or state laws or regulations. A
schedule of the estimated useful life for this Improvement is attached and shall serve as a general
guideline for replacement This schedule may be extended at the option of the City. The City
Engineer shall notify Banmak in writing prior to undertaking replacement of the Improvement.
Such notice shall state the reason for the proposed replacenenb and the estimated cost thereof.
03-06
Should Samos disagree with the City Bngineer's determination concerning the need for or cost
of replacement, it may, within thirty (30) days, appeal the City's decision to the Council
Committee having jurisdiction over such matters. Thedecisimofthe Commitseestallbefmal
and binding.
The City reserves the right to undeaare mort acy repairs and/or replacements of the
Improvement without prior notice when necessary to preserve public safety and traffic flow.
Bananak shall reimburse the City for the costs of such emergency repairs and/or replacement and
hereby waives any right of appeal for such emergency actions provided that the need for such
repair or replacement is not the result of willful or negligent acts or failures W aa, by the City of
Bangor or its agents or employees.
4. Vendor Selection. The City reserves the sale right to design, select, and concoct
either with its own forces orthrough contracts with vendors it selects, all upgrades and
replmemente of the Improvement provided, however, that in the case of planned upgrades or
replacements, the verWon selection and costs shall be subject to Banner's prior approval, which
approval shall not unreasonably be withheld. The City shall provide Banner with sufficient
prior notice of my planned upgrade or replacement of the Improvement to allow Bananak a
reasonable opportunity to exercise its right of prior approval without delaying or interfering with
the City's contractor bidding or rryuest-far-proposals process.
5. Calculation ofRaimbursemmt Amount Bamnar shall reJmburse the City for costs
incurred under paragraphs 3 and 4 of this Agreement based an the actual direct cost of the work
performed, plus the indirect costs associated with the wodc paramount. Such indirect costs shall
be determined by reference to the City's most recon indirect and allocation study. Payments
will be due thirty(30) days after the date of invoice. Late payments shall include an interest
charge equal to the rate of interest than in effect for late payment of City property taxes.
6. Indemnification. The City of Bangor shall indemnify, defend, and hold harmless
Banmak, its principals, agents, and employees, from and against my and all loss, cost damage,
or liability which they, or any of them, may susmain as a result of the City of Bangor's willful or
negligent acts, or failures to act under this Agreement or otherwise.
'/. Term of Agreement Teaminmion. This Agreement shall be for an indefinite teas.
Either party may termimate this Agreement upon one (1) year's written notice. In rase of
termination, Bamnak shall assume full ownership oftbe Improvement, as it may have been
modified or replaced at the time of termination, and shall he fully responsible for the operation,
maintenance, and replacemmt ofthe Impmvement. Upon termination, the parties shell execute a
Marine agreement fire "post -termination agreemed) which shall outline Bamnak's
maintenance and replacement abligations with respect to the Improvement.
The post -termination agreement will include the following language with respect to
indemnification obligations of the parties for claims of their respective agents and employees
arising out ofmaiotenance and replacement of the Improvement
Hamman hereby expressly agrees that it will defend, indemnify and hold the City of
Bangor homeless from any and all claims made or asserted by Barak's agents,
servants in employees arising rated Bam wWs activities under this contract. Bamnak
reserves unto itself the fall range of mo unities and protections; of the Maine Workers
Compensation Ad for any claims bmugbt directly against Barak by any of its
agents, servants, or employees, but often that it will not assert any such immunity in
order to defeat the indemnification agreement set forth herein. The indemnification
provided under this paragraph shall extend to and batiste any and all reasonable cask
burned by the City of Bangor to answer, investigate, defend and settle all such
claims, including but not limited to the City of Bangor's reasonable costs for
attorney's fees, expert and other witness fee, the cost of investigators, and payment
in fall of my and all judgments rendered in favor of Banmak's again, servants or
employees against the City of Bangor in regard to claims made or asserted by such
agents, servants or employees. The parties agree that, with respect to those claims for
which the City ofReagan seeks indemnification and recovery of costs from Berman
in accoNance with the terms of this paragraph, Bamvak shall, at its sole election,
have the right to control all aspects of the investigation, defense, and settlement of
any such claims. The City of Berger agrees to cooperate fully in any such efforts
undertaken by Barran, end to provide any and all inflammation reasonably required
by Barak, its agents, employees, or legal representatives, in the context of the
investigation, defense, or settlement of my such claims.
The City of Bangor bereby expressly agrees that it will defend, indemnify and hold
Barak handless from any and all claims made or asserted by the City ofBarames
agents, servants or employees arising out of the City ofBangots activities under this
contract. The City of Bangor reserves unto itself me full range of immunities and
protections of the Maine Workers Compensation Act for any claims brought directly
against the City of Bangor by any of its agents, servants, or employees, but agrees
that it will not assert any such immunity in enter be defeat the indemnification
agreement set forth herein. The indemnification provided under this paragraph shall
extend to and include any and all rewonable costs incurred by Barak to answer,
investigate, defend and same all such claims including but not imited to the
Barmmak's restimulate costs for attorneys fee, expert and other wimess fm, the cost
of investigators, and payment in full of my and all judgments rendered in favor of the
City of Bangor's agents, servitors or employees against Barak in regard to claims
made or asserted by such agents, servants or employees. The parties agree that, with
respect to those claims for which Hamman seeks indemnification and recovery of
costs from the City of Bangor in accordance with the terns of this paragraph, the City
of Bangor shall, at its sole election, have the right to control all aspects of the
investigation, defierase, and sentiment of my such claims. Barak agrees to
cooperate fully in any such efforts undertaken by the City of Bangor, and to provide
any and all information reasonably required by the City of Bangor, its agents,
employees, or legal represemdative, in the context of the investigation, defense, or
settlement of my such Claims.
S. Any and all notices required or pennimid to be given under this Agreement shall be
sent by U.S. certified mail, postage prepaid, retum mceiptrequested, to the following addresses,
or to such other addresses as the parties shall designate by written notice given in accordance
with this section:
Hto the City: City Engineer
CityofBangor
73 Harlow Street
Bangor, MB N,V)I
B to Barunak: Bavmak Associates
C/o Rmva Company
234 Mall Boulevard
KmgofPmuia,PA 19406
Ann: Via President — Management
Notices sent in accordance with this section shall be deemed received on the date
indicated as the date or receipt or date delivery refused on the certified mail retum receipt.
IN WITNESS WHEREOF, the parties have caused this Agreement to W executed on
their behalf on the date and year first written above.
CITY OF BANGOR
ATTEST:
City Ilnk
APPROVED AS TO FORM:
at nor
03-06
[YII��1
BANMAK ASSOCIATES
By: BANGORASSOCIATES,Parther
By: KRAVCO, INC., General Partner
Attest By:
y arae: D26 0. t_ t ym(Tp/i-
LLs Vice President
Because duly authorized
By: EQK REGIONAL MALL PARTNERS, L.P.,
Farmer
By: LENDLEASEPORTFOLIO AGEMENT,
B C, Mavagin Genera][
Attest B .
Assistant Secretary Name
ILS Vice President
Hereunto duty authonzed
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF MONTGOMERY, as.
OntdisdW`dayof iepft , r 2002,before me, a Notary Public in and
for the County and Some aforesaid, personally appeared Deb �n L, Ln v.Cer}
to me known to be a Vice President of KRAVCO, INC., a Pennsylvania corporation, which
corporation is fie general Further of BANGOR ASSOCIATES, a Pennsylvania limited
partnership, which limited partnership is a general partner ofBANMAK ASSOCIATES, a
general partnership, and acknowledged that he/she, as such Vice President, being authorized to
do so, executed the foregoing instrument on behalf of said corporation as ganecal Partner of said
limited partnership, and acknowledged the said instrument to be the free and voluntary act and
deed of said corporation as general partner of said Nadted partnership and by reason thereof, of
said general partnership, for the uses and purposes therein set form.
- Namry Public
- L�BQTyyw y� PUMc
t.•"., ti My GgnMu�M T_rvphs]uM 12,
Mpmbal.PmmVNanaFamadnNNOYAm
03-06
STATE OF GEORGIA )
COUNTY OF FULTON, as. �-1�I ,,�,.)
Onlbisthe�dayof IAiT/llIKY , 200,beforeme,allotaryPubfcinand
for the County and State aforesaid, personally appeared I V W t�Or. .S'1(MYh
to me known to be the Vice President of LEND LEASE PORTF'�OLIO—MAN— AGEMENT, INC.,
a Delaware corporation, which corporation is the managing general partner ofEQK REGIONAL
MALL PARTNERS, L.P., a Delaware limited partnership, which limited partnership is a general
partner ofBANMAK ASSOCIATES, a general partnership, and that he/she, as such Vice
President, being authorized to do aro, executed the foregoing instrument on behalf of said
corporetion as general partner of said limited partnership, and acknowledged the said instrument
to be the free and voluntary act and deed of said corporation as general partner of acid limited
Paigias)dp and by reason thereof, of said general partnership, for the uses and purposes therein
se
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