HomeMy WebLinkAbout2002-05-13 02-202 ORDERItem NO. 02-202
Date: May 13. 2002
Item/Subject ORDER, Authorizing the Execution of a Lease with Option to Purchase with
the Maine Discovery Museum
Responsible Department: Legal
Commentary:
In 1999 the City and JMC Partners, ULC, owner of the Main Street portion of the former Feeses
Building entered Into an agreement to lease with an option to purchase that potion of the building used
by the Maine Discovery Museum. The City then sub -let that portion to the Maine Discovery Museum.
Now that the dry has acquired the property pursuant m the purchase option we have prepared a lease
with option to purchase to the Maine Discovery Museum, pursuant to the City's original develop-
ment agreement with the Museum.
under the terms of the proposed lease, the Museum may not exercise the option to purchase until
all of its financial obligations W the City have been met. The Museum will be responsible for all costs
associated with Its space, which is now one of four condominium units in the buildings.
This Order will approve the lease and option to purchase between the City of Bangor and the
Maine Discovery Museum.
/ Dpparlment Head
Managers Comments: +&Gtrw ad(, o..Bfau k
City Manager
Associated Information: Lease with Option to purchase
Budget Approval:
France Director
City Sdicitar
Inr for
Passage
_ Fins Reading Page _ of_
Referral
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l AuignedoCouncilor p hraa any 13. 2002
CITY OF BANGOR
(TITLE.) ORDER, Authorizing the Execution of a Laase win Option to Purchase
with the Maine Discovery Museum
WHEREAS, in 1999 the City of Bangor and JMC Partners, LLC agreed that the City would
lease that portion of the former Freeses Building that the Maine Discovery Museum
occuples with an option to purchase; and
WHEREAS, the City of Bangor agreed to sub -let the space to the Maine Discovery
Museum pending the City's acquisition of the space and enter into a permanent lease
with an option to purchase upon acquisition of the space; and
WHEREAS, the City of Bangor has recently closed on the acquisition of the space from
)MC Partners, LLC,
NOW, THEREFORE, By the City Council of the City of Bangor, be it
ORDERED THAT the City Manager is hereby authorized to execute a Lease and an
Option to Purchase with the Maine Discovery Museum in a form substantially as
attached hereto. The final form shall be as approved by the City Solicitor or Assistant
City Solicitor.
IN CIW COUNCIL
May 13, 2002
Passed
C Y
A 02-202
(TITLE,)e.
Lease w1th`Option, to Purchsse'etch ^the
Mafae Discovery Mueem
Assigned to Councilor ?122��
I6yVT4
THIS LEASE is made and entered into as of the�dey of/ ¢ 2002, by and
between THE CITY OF BANGOR, a Maine municipal corporation having a place of
business in Bangor, County of Penobscot, State of Maine, (hereinafter referred to as
"Owner") and MAINE DISCOVERY MUSEUM, a duly organized and edsting Maine
Non -Profit Corporation having a place of business N Bangor, County of Penobscot, State
of Maine (hereinafter referred to as "Truism').
Owner does hereby lease, demise, and let unto the Tenant and the Tenant does lease
and take from the Owner, for the term and upon the terms and conditions set forth in this
Cease, the demised premises known as Unit No.1 to the Freese Building Condominium
(heretnafter referred to as "Condomtrdum Unit") situated on Main and Water Street in
Bangor, County of Penobscot, State of Maine, and more fully described in "ExldMt A"
attached hereto and made a part hereof.
1. Termoflease: TOHAVEANDTOHOMthe Cmdom =Umtfortheterm
of three (3) calendm yeah commencing at the date of this Lease.
2. Rent: YieldtngmdpayingrentfliueforonlheftrstdayofeachcOl wyeazan
amount equal to One Dollar ($1.00) per year.
3. Subleasing and Assignment The Tenant shall not have the right to assign this
Lease or sublet the Condominium Unit or any part thereof, without the prior written
consent of the Owner; which said consent shall not be unreasonably withheld.
9 Maintenance and Reoafr. The Tenant shall be responsible for matntatmng the
Condominium Unit in good repair and m presentable condition and will also make all
incidental interior repairs and decorating, all at the Tenant's own vast and expense
5. Utlitiesmd Taxes. The Tenant shalhbe responsible for the payment of the cost
Of all utilities (including heat and air coridimordng) delivered to the Condommiu iUnit
and shall be responsible for the prompt payment of all property taxes assessed against the
Condominium Unit and property in the Condominium Unit, commencing with the taxes
assessedi wntemplahonoflawmofthedateofthls Lease. Tenantshallberesponsible
fm the payment of all condominium fees, dues, assessments and other charges assessed
against the Condominium Unit
6. Incurance: Tenant agrees, at the Tenants expense, to keep the Condominium
Unit insured at all times against loss by fire, all risk, and extended coverage, vandalism
and storm risks to a insurance company car companies authorized to do busi ss in the
State of Maine, such insurance to be replacement cost Insurance in the amount of Use
Hundred Permit (100%) of the total value of said C ruhsrwum Unit for replacement cost
purpos sw esameisdMenminnedfomtinstot bythem.surer. Suchmsmance
policyshall name the Owner as the owner of the policies and inthe event of any loss or
claim, the proceeds shall be paid to the Owner and the Tenant as their respective interests
may appear.
The Tenant agrees it will maintain throughout the tern of this lease a policy or
policies of general liability insurance indemnifying the Owner and/or Tenant against all
claims and demands for any personal injuries to, or death to any persons, and damage to
or destruction or loss of property which may have or be claimed to have occurred in the
Condominium Unit in an amount not less than One Million Dollars ($1,000,000.00) per
occurrence of injury, or death to any person, and for not less than Onc Hundred Thousand
Dollars ($100,000.00) for damages to or destruction or loss of property.
7. Generalludemnificatios Tenant shall defend indemnify, and hold Owner and
its hdmiumnts, officers, employees and agents completely harmless from and against all
liabilities, losses, sorts, claims, judgments, lines, or demands arising by reason of injury or
death of any person or damage to any property, including all reasonable costs for
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investigation and defense thereof (inducing but not l n ited to attorneys' fees, court costs,
and expert witness fees), of any nature whatsoever arising out of or incident to this Lease
and/or the use, occupancy, conduct or management of the Condomintum Unit or the arts
or omissions of Tenant's offices, agents, employees, contractors, subcontractors, licensees,
or invitees unless such injury, death or damage is caused by the neghgeve of the Owner.
The Tenant shall give to Owner reasonable notice of any such ca'ma or actions.
& Tenand's Wavier of Workers' Comunuuation In mumtn Tenant hereby
expressly agrees that it will defend indemnify and hold Owner, its inhabitarus, officers,
employees and agents completely hanNess from any and all claims made or asserted by
the Tenant's agents, servants, or employees arising out of the Tenant's activities under this
Lease. Forth's VIUase. ancand all im¢mrd
Tenant trayh d the Mame Workers (Donavemation Act'on Ecgmd to such churns
made r as=Ud by the Tenant's ais servants or mol . Theindemnification
provided for under this paragraph shall extend to and include any and all costs incurred
by the Owner w answer, investigate, defend and settle all surh chums, including hot not
limited to Owners costa for attorneys fees, expert and other witness fees, the cost of
investigators, and payment in fid] of any and all judgments rendered in favor of the
Tenant's agents, servants, or employees against the Owner in regard to claims made or
asserted by such agents, servants, or employees.
9. Use: It is further understood and agreed that the Condordrdum Unit shall not
be occupied during the term of this Lease for any purpose usually denominated extra
hazardous as to fire by insurance companies.
19. 12magear Destruction• Ituhrtheragreedthatincasethe Condom mum
Unit shall be destroyed or damaged by fire or other unavoidable casualty, so that the same
shall be thereby rendered unfit for use and habitation, then, to such csse, the rent herein
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before reserved, or ajust and proportionable part thereof, according to the nature and
intent of the injuries sustained shall be suspended or abated, until the said premises shall
have bean put in proper condition for use and habitation by said Owner, or these presents
shall thereby be determined and ended at the election of the Owner or its legal
representative.
11. Termination: The Ten int covena iis and agrees to quit ant deliver up the
Condominium Unit to the Owner or its Attorney peaceably and quietly at the end of the
tam aforesaid (or in the event of a properly executed option to renew at the std of such
renewal period) in as good order and condition reasonable use and wearing thereof, loss
by fire, or inevitable accident excepted, as the same now are, not to make or suffer any
strip or waste thereof and to keep said premises in good condition as herein above
provided and that the Owner may enter, under supervision or after giving notice to the
Tenant, to view the premises. The Tenant further covenants and agrees that if the Tenant
shall fail b pay the rent aforesaid when due, and if such failure shall continue for fifteen
(15) days; or if it shall make or suffer any ship or waste of the Condominium Unit; or if
the Tenant shall fail to quit and surrender the premises to the Owner at the end of said
term (or such properly exercised renewal period) in the manner aforesaid; or if the Tenant
shall violate any of the covenants or agreements in this Lease which ere to be performed by
the Tenant; or if the estate hereby created shall be taken from the Tenant's property for the
benefit of aedibus or if the Tenant shall in anyway come undathejurisdiclion of the
federal bankruptcy court or be deemed to be insolvent; then and in any of said cases, the
Owner, its agents,attorneys, sucreasom or assigns, may in any manner they set fit, re nthr
into the Condo rrdum Unit, and if they please, temwste and annul this Lease as far as
regards all future rights of said Tenant, and the same to have again, retain, repossess, and
enjoy as in their first estate, anything herein to the contrary notwithstanding.
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It is further covenanted and agreed that for breach of any of the covenants and
agreements aforesaid, except the payment of rent, and upon notice mailed to the Tenant at
least thirty (30) days prior to the taking of any action, an action of forrible entry and
detained may be costumed without entry and without prejudice to any other rights the
Owner may have.
12 Nondiscrimination, Tenant, for itself, its successors in funniest and assigns, and
as part of the consideration hereof, does hereby covenant and agree that (1) no person or
group of persons on the grounds of race, color, age, sex handicap, or national origin, or in
any other marmer prohibited by law, shall be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination in the Tenant's use or occupancy of
the CoMominium Umt; and (2) in the construction of all improvements, buildings,
structures on, over or under such premises and the furnishing of services thereon, no
person or group of persons on the grounds of race, color, age, sex, handicap, or national
origin or in my other manner prof fried by law, shall be excluded from participation in,
denied the benefits of, or be otherwise subjected to unlawful discrimination in the Tenants
use crootipancyof the Condominium Unit In Neevmtofbreachofanyoftheabove
indiscrimination covenants, the Owner shall have the right, after failure of Tenant to
rectify such breach within thirty (30) days after receipt of nice from Owner, to ternionate
this Lease. povtded,hmwewen,that OwnershallnahawtMdghttoterminatethe Lease
undertWsArtiJ threspecttoanycomplaintofdiscriminationwhichispendingfinal
resolution or adjudication before any agency or court of the State of Maine or the United
States.
13. Liens: The Owner and the Tenant agree that each will promptly discharge
(either by payment or by filing of the necessary bond, or otherwise) any mechanics'
materiahnen's or other liens against the Condominium Unit which liens may arise out of
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any payment due for labor, services, materiels, supplies or equipment which may have
been furnished to or for the Owner or the Tenant, respectfully.
14. Waiver. Failure on the Owner to complain of any action or nonaction on the
part of the Term no matter how long the same may continue, shell never be deemed to be
a waiver by the Owner of any of OwneYs rights hereunder. Further it is covenanted and
agreed Out no waiver at my time Many of the provisions hereof by Owrr shaft he
remarried as a waiver of any 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 awaiver of
the same provisions. The approval of the Owner of my action by the Tenant requiring the
Owum's cement or approval shall not be deemed to waive or render unnecessary the
Ownm's consent or approval of any subsequent similar ad by the Tenant.
15. Notices: Notices to the Owner provided for in this lease shall be sufficient if
sent by registered or certified mail, return receipt requested, postage prepaid to: the City
Manager, City of Bangor, City Hall, 73 Harlow Street, Bangor, ME 04401, with a copy to
Director, Department of Community and Economic Development, 73 Harlow Street,
Bangor, Maine 04401.
Notices to the Tenant provided for under this Icase are to be sent by registered or
certified mail, return receipt requested, postage prepaid, addressed to: Maine Discovery
Museum,Atm.: Exerutive Director,74Main Suret tiangor,Mame 09401, ortoanyother
respective addresses as the pames may designate to each other in writing from time to
mile,
16. Renewal Option: Owner hereby grants and gives to Tenant the privilege of two
(2) renewal options of this Lease, each such renewal to be for a period M one (1) year
commencing upon the termination of the initial term of this tease. Term shall exercise
each such option to renew by so notifying the Owner in writing at least thirty (Bo) days in
advance of the temmnation of the term of this Lease. Such renewal period shall be subject
to the same terms and conditions as in the initial term of this Lease.
19. Net Net Net Lease: This Lease Agreement is intended as a net net net lease, and
Tenant shall pay to Owner absolutely net throughout the lease teem, rent, and other
payments as described herein free of any charges, assessments, impositions, or deductions,
of any kind and without abatement, deduction, or set off other than as expressly provided
in time Ag ero ent, and under no circumstances or conditions whether now existing or
hereinafter arising, or whether within or beyond the present contemplation of the parties
shall Owner or its successors or assigns be expected or required to make any payment of
any kind whatsoever, or be under any other obligation or liability hereunder, except as
specifically and expressly provided in this Iaase Agreement.
RV WMESSW IiEOF, the parties have hereunto set then hands and seals the day
and year first above written.
WITN&SS:
TkIE CITY OF BANGOR, Owner
��I. ts�I�l f��✓_
MAINE DISCOVERY MUSEUM, Tenant
7
(Pm,bed Name)
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02-202
EXHIBIT A
Unit No. 1 (the "UNC) in THE FREESE BUILDING CONDOMINIUM (the
"Condommanim") situated on Main and Water Street in Bangor, Penobscot
County, Maine, as more particularly described in the Declaration of the Freese
Building Condominium dated December 24,1998, and recorded in the Penobscot
County Registry of Deeds in Book 6921, Page 29, as amended and restated by the
Amended and Restated Declaration of the Freese Building Condominium dated
March 22, 2002, and recorded in the Penobscot County Registry of Deeds in
Book 8130, Page 8, as same may be further amended from Was to time in
accordance with its terms and the Act (the "Declaration"), and on the Plat and
Plans incorporated into the Declaration and recorded in the Penobscot County
Registry of Deeds in Plan Book 1998, Pages 81 through 87, as amended by Plans
incorporated into the Declaration and recorded in the Penobscot County
Registry of Deeds th Plan Book 2002, Page 37 and Pages 42 through 47, as the
same may be further amended from time to time in accordance with the
Declaration and the Act (the "Plat and Plans"), by virtue of the recording of
which Declaration. Platand Plans, )MC Parmers, LLC and Freese/MainStreet
Housing Associates, LP, as Declarants, created the Condominium pursuant to
the Maine Condominium Act, Title 33 of the Maine Revised Statutes of 1964, as
amended. Chapter 31, Sections 1601-101, et sem., as amended (the "Ace);
TOGETHER WITH an undivided interest in the Common Elements of the
Condominium, the liability for Common Expenses of the Condominium, and
Votes in the Association of Unit Owners of the Condominium allocated to the
Unit pursuant to the Declaration;
TOGETHER WITH the rights to use any Limited Common Elements allocated
m the Unit as described, specified and allocated pursuant to the Declaration;
TOGETHER WITH an easement in common with the Owners of other Units to
use the Common Elements of the Condombdum for purposes of ingress, egress
and all other uses in accordance with the Declaration and the exclusive right and
easement for the use, occupancy and enjoyment of the Unit
TOGETHER WITH an easement in common with all other Unit Owners to use
all pipes, wires, ducts, cables, conduits, public utility lines and other Common
Elements serving the Unit and located in any of the other Units.
TOGETHER WITH an easement to the extent necessary, for structural and
subjacent support over every other Unit and over the Common Elements;
TOGETHER WITH all other rights, easements, rights-of-way, interests,
Anwated Interests, pnvileges and appurtenances as more particularly described,
located, defined, allocated or referred to in the Declaration, the Plat and Plans,
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and the By -Laws described in the Declaration, as the said By -Laws may be
amended from time to time f n accordance with the Declaration and the Act (the
"By -Laws" ), all of which are incorporated herein by reference thereto;
SUBJECT TO the matters affecting tide described in the Declarabon and the Plat
and Plans and terms, covenants, agreements, easements and provisions of the
Declaration and the By -Laws, which cerins, covenants, agreements, easements
and provisions shall constitute covenants running with the land and shall bind
the Grantee and any person having atany, time any interest or estate inthe Unit,
as though such provisions were recited and stipulaW at length herein;
SUBJECT ALSO TO an easements in common with the Owners m other Units to
use all pipes, wires, ducts, cables, conduits, public utility time and other
Common Elements serving the other Units and located in the Unit and to an
easement for structural and lateral support in favor of every other Unit;
AND, by the recording of or by acceptance of this deed Grantee does accept and
agree for itself, i4 successors and assigns, to be bound by and subject m all of the
tams, covenants, agreements, easements and provisions of the Act, the
Declaration, the By -Laws and the Plat and Plans.
For Grantor's source of title to the premises conveyed herein, reference is made
to a deed from JMC Partners, LLC and Freese/Main Street Housing Associates,
LP to JMC Partners, LLC dated December 24, 1998 and recorded in the
Penobscot County Registry of Deeds in Book 6921, Page 88, by which deed JMC
Parthers, LLC acqutred Unit 1 m the Condominium as created by said
Declaration of The Freese Building Condominium dated December 24,1998 and
recorded in the Penobscot County Registry of Deeds in Bank 6921, Page 29,
whirls Droll was subsequently divided into two Units, being Units 3 and 3, by
said Amended and Restated Declaration of the Freese Building Condomfrdum
dated March 22, 2002 and recorded in the Penobscot County Registry of Deeds
in Book 8130, Page 8. The City of Bangor having acquired said Unit No. 1 by
virtue of a Quitclaim Dred with Covenantfrom ]MC Partners, LLC. dated March
27, 2002, to be recorded in the Penobscot County Registry of Deeds.
OPTION AGREEMENF
AGREEMENI'made this R,(IY„day of2002, between THE CITY OF
" g a
BANGOR, a Maine municipal corporation ha place of business in Bangor, County of
Penobscot, State of Maine (hereinafter referred to as "Seller') and MAINE DISCOVERY
MUSEUM, a duty organized and existing Maine Non -Profit Corporation having a place of
business in Bangor, County of Penobscot, State of Maine (hereinafter referred to as
"Buyer").
UXYYG1_1c5
WIiERF_AS, Seller is the owner of premises known as Unit No.1 in the Freese
Building Condominium situated on Main and Water Street in the City of Bangor, County
of Penobscot, State of Maine, more particularly described in a Quitclaim Deed with
Covenant from JMC Parhters, LLC to the City of Bangor dated March 27, 2062, and
recorded to the Penobscot County Registry of Deeds in Book 8132, Page 260, (hereinafter
referred to as the "Condominium Utdt").
WHEREAS, Seller is desirous of granting to Buyer an option m purchase said
Condominium Unit.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, and
undertakings hereinafter expressed the parties agree as follows:
LCH:tp>SbJ4Y
Section 1, Option Seller hereby grants to Buyer the exclusive option M purchasing
the Condominium Urdt under the terms and conditions set forth herein.
Section 2 Tarin. This Option will remain in effect until five o'clock (5:00) p.m.,
pri vadingtime, on December 31, 2005.
Section 3: Option Price. The option priceis One DoBer ($1.00), receipt of which u
hereby acknowledged. Al] monies pact on account of the option price are not refuMable
except in the case of a failure of title as set forth below.
Sectionh Exercise. This OptionshaBbeexemisedbygivingwrittennoficethereof,
at any time during the option term or extension thereof, to Seller at the following address:
The City Manager, City of Bangor, City Had, 73 Halow Street, Bangor, Maine, 04401, with
a copy to Director, Department of Community and Economic Development, 73 Harlow
Street, Bangor, ME 04401. Such notice may he sent first class mail, postage prepaid, or
delivered by hand.
Section 5: Purchase Price. The purchase price for the acquisition of the
Condo ndrdum Unit shall be One Dollar ($1.00), plus the payment of all outstanding
Indebtedness due Seller from Buyer.
Section 61 Pavia The purchase price shot be paid to full at or prior to the
Closing.
Sectlony:Closine. The Closing shat take place at Buyer's election but not tater dmn
five o'clock (5:00) p.m., prevailing time, on the 30th day following the day upon which the
notice is posted or delivered, as the case maybe.
Sectin 8: Conveyance and Payment
8.1: Warrantiesand Title. Conveyance shall be made by Municipal Quitclaim
Deed conveying goad marketable tide to said Condominium Unit, as defined by the
standards adopted by the Meares But Association, fire and clear of encumbrances, kept
for conventional utility easements and such restrictions as would not make the title
munarketable. The title shall also be insurable by any reputable title insurance company
licensed to do business in the State of Maine.
82 Payment. Buyer will make all payments by certified, cashier's or attorney
trustaccountcheck.
Section 9: Succession. This Agreement and the provisions herein shat be binding
an the respective heirs, personal representatives, successors and assigns of Seller and
Buyer.
Section lP. Miscellaneous.
10.1: Transfer Taz. State of Maine Tra sfar Taxes shat be paid entirely by Buyer.
102: Broken. Neither party has retained a real estate broker in this transaction.
10.5: Time. Time is of the essence to at matters relating to this Agreement
IOA "AS Is" Condition The Condomhdum Unit will be sold in"as is" physical
condifion, and Seller makes no representations to Buyer whatsoever as m Else physical state
of same. This linummon shall prevail through the Chasing, and no further writing shall be
necessary with respect thereto.
105, Goverrtng Law. This Agreement and the tranaacfion contemplated by it
shall be governed by the laws of the State of Maine.
10.6: Notices. Arty notices required by or useful under the terms of Otis Agreement
shallbegiven,intbecase MSeller,ro: The City Marmger, City of Burger, Cfty Hall, 73
Harlow Street, Bangor, ME 04401, with a copyto Director, Department of Community
and Economic Development, 73, Harlow Street, Bangor, Maine 04401; and in the case of
Buyer, to Maine Discovery Museum, Alto .: Executive Director, 74 Main Sheet, Bangor,
ME 04401, or such other persons and addresses as the appropriate party may hereafter
designate. All such ounces shall be sent first class mai), prepaid, or delivered m hand.
10.7: Entire Agreement This Agreement contains the entire and only agreement
between the parties and no oral statements or representations or prior written matter not
contained in this Agreement shall have any force and effect.
Sectimill,ShomForinforRecUrding. Buyer may wishm give notice of this Option
through a recordation in the Penobscot County Registry of Deeds. Seller and Buyer agree
that the entire contents of Urs Option need not be made public through such recording.
Accordingly, a reduced version of this Option may be executed simultaneously, with the
execution of this Option, and Seller agrees that only the reduced version shall be so
recorded. The reduced version of flus Option when recorded shall serve as notice to all of
the contents of the complete version of this Option Agreement
INWFFNESS WHEREOF, the parties hereto have hereunto set then hands and seals
on the day and year fust above written.
THE =OF BANGOR, Seller
By: !XN'aMl'G W
Edward A. Barrett, City Manager
FedermMNo.: 01-6000020
MAINE DL9COVERYMI15EUK Buyer