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HomeMy WebLinkAbout2003-10-15 03-315 ORDERItem No. 03-315 Date: 30-15-03 Item/Subject ORDER Authorizing the City Manager to Execute a Lease with M H, LLC for Property Adjacent to 1087 Hammond Street. Responsible Department Planning Commentary: This Order authorizes the Cry Manger to execute a lease with PUH, LLC (d/b/a Hammond Lumber) for the unused railway spur located adjacent to 1087 Hammond Street The purpose of the lease is ro allow Hammond Lumber to use the parcel to construct an access dme (with a fence) to allow trucks making deliveries to Hammond Lumber to drive around the buildings rather than attempt to turn around, and for parking and temporary storage. The B&ED Committee recommended approval of this lease at its October 7, 2003 meeting. Managers Comments: Recommend approval. Associated Infomnation: Department Head � Finance Director 94 Solicitor X Passage _ First Reading Page _ M_ Referral 03-315 —�z Assignedro Councilor Reborn October 15, 2003 CITY OF BANGOR (MILE.) ORDER Authorizing the City Manager to Execute a Lease with M]H, LLC for property Adjacent to 1087 Hammond Street. ORDERED, THAT The Oty Manager is hereby authorized to execute a lease of a certain trail of land located adjacent to 1087 Hammond Street and referred to as the railway spur M MJH, LLC (d/b/a Hammond Lumber). A draft of said lease is attached hereto; the final form to be approved by the CIN Solicitor or Assistant City Solicitor. IA CIS[ COOKK:IL Octaber 15, 2003 Passed 403-315 (TITLE,) ,emit•. Ln- d . - ]Execute a Lease m1th MR, LLC for Property Adjacent to 1087 9amoud street Asslgnedlo Councilor _.(.(j yVf 44 V V V 03-315 LEASE AGREEMENT This LEASE AGREEMENT, executed in duplicate [his LWdday of 1 30,2.3;, by and between: CITY OF BANGOR, a body politic and corpomte, duly organized and existing mean am by virtue of Ne laws of she State of Maine, and being los mod to Perobscot County, State of Maine, as Lessor (hereinafter sometimes refned to"' City" or "LessoY'), and MM -BCR, LLC, a limited liability corporation duly Dominsd aM exisdng under am by vhtue of she laws of she Suite of Maine, and having property located in Penobscot County, State of Wine, as Lessee (hereinafter sometimes minted to as "Lessee"), WI7fNESSE7fH WHEREAS, the City of Bangor is the owner of a cmtam parcel of land situated adjacent to 1087 Hammond Sneel, Bangor, owned by MIH-BGR. LLC and occupied by Hammond Lumber Company, wHEREAS, the parcel has upon it unwed railroad truths; WHEREAS, Borrowed Lmrber Company desires to use this parent for puryoses of ingress to and egress from its business; and WHEREAS, the City does not object to such use; NOW THEREFORE, the parties do mutually aAee as follows: ARTICLE I - PREMISES The City, for and in consideration of the renes to be paid and the obligations to be performed by the Lessee as herein provided, does hereby demise and lease unto Ne Leasee, and the Lessee does hereby demise, lease, take arrd hire, upon aM subject to Ne conditions hereinafter expressed, the following described property, in its present condition, viz: See Exhibit A, attached hereto and incoryorated herein by reference. ARTICLE II -TERM N F V AND TO HOLD she demised premises unto the Lessee from she date of execution for a tens of one year, and automatically renewing for nine additional one-year periods unless temduated in accordance wish Article X (Teminarion) or Article Xl (Cancellation). 03-315 ARTICLE IH -RENTAL The annual rental to be paid by the Lessee to the City during the term of the; lease shall be ONE THOUSAND DOLLARS (51,000.00), payable on the date of execution hereof and on each amuversery thereafter for each armual extension. The Lessee shall pay all rentals herein required without prim demand therefore in lawful money of the United States, at the sddrese of rise City as herein set forth cur m such other places as the City shall designate. ARTICLE IV- USE AND OCCUPANCY OF PREMISES A. The Lessee shad use and occupy the premises herein convinced for the purpose of constructing a fence and driveway for access m and f 1087 Hammond Street [but not access to Hammond Street], temporary storage, parking and for no other propose. B. No improvements to the premises may be made until approved by a committee of the Bangor City Council, whose approval $ball not be unreasonably withheld, and until Lessee has Obtained all necessary permits, including but not limited ro, site plan approval by the Bangor Planning Board. C. The Lessee shall not use or occupy said premises in any other mower as to lmowingly, violate any law or regulation of any duly cwstituoul govemmenrel authority. ARTICLE V - WDEbWITY During the term of this Lease and during any extersicis or renewals hereof, including any holdover tenancy, following regular expiration or early termiwtion hervuf Lessee shall def d, indemnify, ve and hold lessor, and its iNalmants, officers, employees aM agents completely harmless fiver and against any not all liabilities, losses, suits, claims, cons, expenses, judgments, fines or demands rising by reason of injury to or death of, or asserted by, my person or persom, including Lessee's agents, clients, invitees or cuployces, or damage on any property, including all reasonable costs for investigation and defense thereof (including but not Em ed to attorneys' fees, court costs, and expert withess f), of any wove whatsoever arising out of or incident to this Leese and/or the use, acrimony, conduct, or management of the demisd premises or the acts or omissions of Lessee's officers, clisms, agents, employees, contractors, subcov[mctors, ficensees, or invitees, uni such injury, death, or damage is caused by the negligent acts or missions of the Lessor, its agents, employees, clients or invitees. The Lessee abut give m Lessor reasonable notice of any such claim r action. The Lessee shall also use counsel reasonably acceptable to Leaser in carrying out its obligations under this Article. During the term oftbis Lease and during my extensions or renewals hereof, including any holdover tummy, following regilm expiration or early termination hereon, Lessee mother expressly agrees that it will defend, indemnify, save and hold Lessor hmdess from any and all claims made or asserted by the Lessee'sagents, servants or employees arising out offae Lessee's activities under this Lease. For this Lessee thereby amorousI d all nommity it may have under Ma'ne's 03-315 Workers Cementation Act in reason so such claims made or asserted modest Lessor by Lessee's Bents. servan6 or emolove . For this purpose, Lessce further expressly waives any charitable immunity it may have under applicable law as to any and all claims of any person made or suertd against Leaver arising out of Lassoes use and occupancy of the demised premises or -other activity of Lease, other this Lease. The indemnification provided under this Article shall extend to and include any and all costs incnned by the Lexwr W answer, investigate, defend and settle all such claims, including but not limited to Lessors costs frr attomeye fees, expert and other witness fine, the cost of investigators, and payment in hill of any and all judgments renderd in favor of Ne Lessee's agents, invitees, licensees, clirnk, ser man or employees against Lessor in regard to claims made or asserted by sucM1 persons. In exercising the rights grand under this Lease, Lessee sball at all times be regarded as an independern entity conducting its own business and agitations and shall not at any time act, hold imalf out, or purport to act as an agent, contractor, cn-partner, joint venture or employee of Les, r. A TTCI E VJ NON-DISCRIMINATTON The Lessee, in the use and occupancy of Ne leased promises, shall not unlawfully discriminate or permit unlawfl discrimirution against any person or group ofpersws in any meaner. ARTICLE VII - COVEN NT OF OUMT ENJOYh4'NT The Lessee covemnts, subject to the tamer and conditions of this Agreement, on payment of the rent and observing, keeping and performing all of the terra and conditions of this Agreement w its behalf to W observed, kept and performed, shall lawfully, peacefully, and quietly have, hold, occupy and enjoy the demised premises during the term heteofor any extension thereof without hindrance car rejection by the City. ARTICLE VBI AUTHORITY TO ENTER INTO AGREEIvQ:TIT A. The City hereby represents and warrants that it has taken all necessary, pmedmal and legal steps as reauved under all Same, local, and Inderal laws and regulations, f the purposes of authorizing the execution of this lease and that the execution of this lease by its City Manager renders this lease a valid and binding document an the pan of the City of Bangor, its successors aM assigns, arW is July enforceable in all of its teems and conditions by the Lesser. B. The Lessee hereby represents and warrants that it has taken WI necessary, procedural and legal steps as required under all State, local, and Federal laws and regulations, ad all necessary achon to wtlmriu the asOmhw of this lease, and that the execution of this lease is a valid and binding document on the part of the Lessee, its successors and assigns, and is Rally enforceable in all of its homer and conditions by me City. 03-315 ARTICLE IX- HAZARDOUS MATERIALS Lessee hereby covenants and houses that it shall not, cluing the term of this Lease, including any extension or renewal hereof, permanently place, cause m be placed, deposit or discharge any hazardous waste upon the demised premises and father expsesslY agrees that it shall indemnify Lessor boost any and all costs, expense Or liability, of whatever kind tar came, incurred by the Lessor in detecting evaluating, removing, heating, disposing of or otherwise responding to mry bwardous waste placed or deposited in violation of this Article. Less« lonely woman s avd agrees that it shall not, during the term of this Uwe, including any "tension or renewal hereof, violate any local, state or Federal regulatiom ordinance or statute pertaining to harardous waste or hazardous material and Seldom expressly agrees that it shall indemnify Lessor from any and all costs, expense or liability, of whatever kind or phone, incurred by the Lessor for any such violation, Such coats stall by deemed to include, without limitation, Lessor's costs of defending any suit filed by any pmson, entity, agency, or govemmenml authority; paying any lines imposed in waling any damage claims; complying with any order by a court of competent jurisdiction directing the Lessor m take remedial action with respect to such waste; cud Of all associated anomey's fees and costs. For the purposes of this Article, the term "hazardous wast2" shall be deemed to include every substance now or hereafter designated as a hazardous waste under any provision of State or Federal law. ARTICLEX-TER IMATION It is covenanted and agreed that: A If the Lessee shall neglect or fail to pay the rent or other charges payable hereunder, and such default shall continue for a period of ten (10) days after wrinea mfice thereof by the City, or B. If the Lessee shall neglect or fail to perform or observe any of the other covenants, terms, provisions, obligations br conditions on its part to be performed or observed under this Lease am such default shall contiwe for a period often (10) days atter written wticz thereof by the City; or C. If the estate hereby created shall be taken on, execution Or by other process of law; D. If the Lessee shall be declared bankrupt or insolvent according to law; or E. If my assignment shall be made of the property of the Lessee for benefit ofcredimrs; of F. If a receiver, wstee in hankrupicY, or other similar officer shall he appointed to take charge of all or any substantial pan of the ]snare's property by a court of compatentjurisdiction; or G. If a petition shall be ftled for reorganization of the Lessee under the provisions of the Bankruptcy Act, now or hereinafter enacted, and such proceeding is not comtnrnded within sixty (60) days after it has begin; or fail H. If the Lessee shall file a petition fr reorgeniza[ion or on arrengemencs under any Provision of the Bankruptcy Act, now or hereinafter dawned, and Providing a plan for the debtor to settle, satisfy or ¢stead the time for payment of debts; then, in any of the above cases, the City lawfully may, immediately On a1 any time thereaRa, and without demand or notice, color into and upon the same demised premises or any part thereof N the name of the whole and repossess the same as the City's forma estate, said expel the I see and those claiming through or under it and remove it or their effens (forcibly, if necessary) without being deemed guilty of any manner of trespass, and without prejudice to any remakes which might otherwise be used for arms of rent or preceding breach of covewut, end upon army do aforesaid, this Lease shall terminate, and the Lessee covenants and agrees to pay and be liable f payment of the reards; and other chooses as if they were, under the tams of this Agreement, to become due if this Leese had not been so terminated or if the City had not entered or to entered as aforesaid, less any sums as may be recovered by the City by virtue of its leasing the demised premises to a third party. ARTICLE M -CANCELLATION Both parties reserve the right to terminate this Agreement at any time without cause by notifying the other in writing and upon not less than sixty (60) days advance notice. ARTICLE XII -IMPROVEMENTS Upon nomination of this Agreement by normal expiration or otherwise, Lassa shall remove any and all improvements camarmted by Lessee within thirty (30) days. Any Improvements, structures or personal properly emoted or located upon the demised premises and[ not removed by the Lessee shall become the property of the City, to be disposed of many way as it may deem it, and the City may charge Users bur the costs of removal of any such property. ARTICLE XM -NOTICES Notices to the City Provided fm in this Agreernmt shall be sufficient if sent by registered or instilled mail, postage fictional to: Edward A. Banco, CityManager Bangor City Hall 73 Harlow Stred Banga,ME 01401 and indices to the Losee shall be moichm, if sent by registered or certi6a mail, portage prepaid to: Michael J. Hammond P.O. Box 500 Belgade,ME 0917 or to such other respective persorvs at addresses as the patties may designate to each other in writing Gori time to time. ARTICLE XIV- SUCCESSION& ASSIGNABILITY A. All provisions of this Agreement shall extend to, bind arm insure to the benefit of not only the City and the Lessee, but also their successors and assigns. S. The Lessee shall not encumber, mortgage, assign, sublet or otherwise tranefx its interest or any part thereof order this Agreement without the prior expressed written commit of the City. ARTICLE XV - WAIVER Failure m the part of either party to complain of any action m non -action on the pan ofthe other, no matter how long the same may continue, shall never be deemed to be a waiver by either parry of any of the other's rights bereuvder. It is covenanted and agreed that no waiver at any time of any of the provisions hereof by either pasty sbah be commued as a waiver of my of the other pmvisims hereunder, and that a waiver at any time of my of the provisions herd shall not be cnshued in any subsequent time as a waiver ofthe same provisions. The aWmval by either p M m or of my action by the other requiring consent or approval shall not be deaned to waive mnecessasy the required consent or approval of my subsequent or similar action by either party. ARTICLE XVI-INVALE = OF PARTICULAR PROVISIONS If my term or provision of this Agmeme d of the application thereof to any person or cimumstances many extent be dmlared invalid or wenf eable by any court of component jurisdiction, the remainder of this Agreement, or the application of such teras and conditions to pessns in chicamormacce other tom those which have have held invelid or unenforceable shall not be affcted thereby, and each term or condition of toffs Agreement shall be valid and be enfomeable m the fullest extent permitted by law. - - -- ARTICLEX R-CONSTRUEf10N no headings appearing in Us Agreement are inteMed fm convenience and ref ence only, and are not m be cosutmed by theparties hereto or by my third party in construing this Agreement. Nothing curtained herein shag be decreed or sustained by the parties hereto or by any third party as creating the relationship of principal and agent or of partnership or ofjoint venture between fie parties herein, it being understood and agreed that all pmvisima contained herein are intended to meam rhe relationship between the parties of landlord and tenant. ARTICLE XVIII - GOVERNING LAW nis Lease Agreement sball be governed exclusively by five provisions bereof and by the law of the Sime of Maine as the same may from time to time exist. IN WITNESS N UOF, the parties harm have set their Rands and seals the day and year fust written above. �I1a 11. • 11f� W' A, i� is7�r� Hs: City mmger MlE3-BGIt, LLC woA- By9ammond Its: Sole Member By: r yM. Bickford IN: Sole Mmmger 4eER 12-20-1 Ina vmbe O3 315 Sn / Pd /� / ne70 /iss i iy m. M1 RAMADA INN / Aaqtl Q Book �o /' G600, Page 1 iax Map R18, Lot OF BF A No,R /� P / Rete, Fig t« SeeTract Judgment nt a Egli SloMsan tc S � LE P5E9 (sen