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HomeMy WebLinkAbout2002-07-08 02-283 ORDER02-283 SaSPERSIDN OF RUBS f Assigned m Councilor CITY OF BANGOR (TITLE.) Order, Authorizing the City Manager to Execute a Memorandum of Donation Between Stephen King and TabBha King and the City of Bangor for the Purpose of Constructing a Swimming Peol and Related Fadlities in Hayford Park 6y the Ory Cmaxy/ of Vre City ofRanger.• ORDERED, That the City Manager is hereby authorized to execute a memorandum of donation between Stephen King and Tablthe Ming and the City of Bangor for the purpose of constructing a swimming pool and related facilities in Hayford Park Such menorandum shall be in a form substantially the same as the memorantlum attached hereto.) IP CITY COUNCIL July B. 2002 02-283 Motion for Passage Made and Seconded Passed ORDER Title, Authorizing the City Manager Co Between a en King an of DooaCiKn and the Stephen Ring and Tabatha Ring and the City of Bangor for the Purpose f` of Co"Istructius a Bvfto Pool and Jk Assito Related Facilities In in Payford Park Councilor 02-283 MEMORANDUM OF DONATION This Memorandum is entered into [Itis [_day 4 2002 by and between Stephen King and TabithrKing(hereivaOer the' s"), both of Bangor, Maine and the City of Bangor, amunicipality, organized and existing im erthe laws of the State ofMaine (hereinafter the "City"). WHEREAS, the Kings wish to make a donation to the City for the purpose of enabling the City to construct a swimming pool and related famlifies in Hayford Pak, subject to certain terms and conditions; and WHEREAS, the City bas agreed to accept the donation subject to certain terms and conditions; NOW THEREFORE, in order in better memorialize the terms of the donation and the obligations of the City myon acceptance, the patties agree as follows: ARTICLE I rar. Call The Kings herebyofferto donate the City up to SI,150,000 for the purpose of enabling the City to construct a swimming pool and related facilities including engineering services and utility extensions (hereafter the "Improvements") and costs related by the removal ofthe current pool at Hayford Park, all in accordance with plans to be approved by the Kings as hereafter provided. The Kings agree to make the donation at such time as a design contract far design ofthe Improvements acceptable in the Kings has been executed by the City. The donation may be made in lump sum, or, in the discretion of the Kings, may be disbursed in installments, provided, however, that the Kings shall make the payments, W to SI,I50,000, to the City as necessary to fund design and construction of the improvements in accordance with the terms of the construction contract Should the City not constmat the pool and relmed facilities, any hands provided by the Kings shall be refunded to the Kings by the City. ARTICLE II CONDITIONS The donation described in Article 1 above shall be subject to the following conditions: a Plans and Specifications The City agrees to submit In the Kings, upon request, copies of all budding designs, plans, specifications and related documents for advance approval prior to commencement of work on the project and all such documents shall be subject to the Kings approval. b. Penes and Avmovala The City shall obtain all federal, stare and local permit approvals regoved m a precondition to the nomination of the Improverams and shell comply with all applicable federal, state and local laws, regulations and ordinances pertaining to construction, maintenance and use of the Improvements. c. Right of lasoatiov During the constmction of the Improvements, the Kings or their designated representative shall have the right, but not the obligation, to periodically inspect construction wort: to assure compliance with project plans. d. Scheduling and [Ise For a period of not less than twenty (20) years from the daze of completion of construction of Improvements, the City will adequately maintain and we the Improvements as a public swimming Pool. Scheduling and use of the pool will be supervised by the Bangor Parks and Recreation Deparmiam. e. Maintenance Obligations Upon completion of combination of the Improvements and for a period of twenty (20) years thereafter, the City agrees to maintain the Improvements in a safe condition. In addition, the City agrees to supply, maintain and repair, at its sole expense, water, sewer, electrical service and other utilities needed in connection with the use of the Improvements during such twenty (20) your period. ARTICLE IH UNDERTAKINGS OF THE CITY a lndemoification The City hereby covenems and agreas to indemnify and hold harmless the Kings, thein heirs, successors and assigns, from and against all claims, demand, actions, suits, proceeding, judgments, decrees, debts, liabilities, costs, fees send expenses, including armany's fess, of any load whatsoever which may at any time be assened by any Parson, that, corporation or govemmemal agency arising, either duec0y or indirectly, out of the construction, maintenance cr use of the Improvements. b. Approval by City The City hereby represents that it has the lawful authority to enter into this Memmandum and to accept the donation offered by the Kings on the conditions set forth herein and that the same has been approved by a Proper order of the Bangor City Council, which order authorizes the City Manager to execute [Ids Memorandum on behalf of the City. a Facili Itis intentionoftbe City toconsWctapool and related facilities larger than the cmrentpool locatedm Hayford Park. VaenewfaciNtymayinclude,but not be limited m, apool including ano barrier children arae, a general use arca, a lap area and a separate sliding pool area Any costa in excess ofthe amount ofthe Kings' donation shall be provided by the City. d. Schedule The City shall use its best efforts to expedite the design rod construction of the facility with the intent to construct the pool and related facilities as soon as possible. ARTICLE W a. Name The Rings shall have the right to choose the name for the swimming goal, subject to consent of the City, which cement shall net be unreasonably withheld The City shall rent change the name Por m least twenty (20) years ager completion of combustion of the Improvements. b. Rights Personal to the Riney The City acknowledges that it is the mention of the Rings that the Improvements constructed with the proceeds of the duration be used m a mdmcewiththeirNmonalwishesasexpressedintivs Memmundum. Accomingly,it is agreed and aclmowledged [hat any and all rights created by this Memorandum shall be deemed personal to the Rings or, in the event of them death or disability, to their conservator, personal representative, or heirs, and no other person may enforce any such rights as a beneficiary hereof unless such right has been specifically assigned to met person by the Kings. c.Remedies In the event of abreach of the undertakings, covenants and conditions imposed on the City as set forth in this Memorandum, the Rings, their conservator, personal representative, heirs or assigns, may bring legal proceeding in any appropriate forum for the purpose of specifically unforeing such undertaking covenant or condition, or in the event that such specific performance is not practical or available under the circumstance, to reform the obligations of me City as set forth in this Memomndam to the extent required to assure that the intent of the Rings with respect to the design, construction, maintemnce and we of the Improvements, as expressed in this Memorandum is carried out to the fullest extent practicable under the circumstances. d. Ihuation ofUndenakines. The under Wrings and covenant of the City as expressed in this Memorandum shall remain in fall force and effect for aperiod of twenty (20) yeas from the date of than completion of construction of the Improvements, end the City shall thereafter have an further obligation with respect to maintenance or use of me Improveamend and may make such use or disposition of the Improvements as shall seem proper a that time; provided, however, that to the extent it is practicable to do so, the City shall use the Improvements, or the proceeds making from any disposition thereof, for purposes consistent with the wishes of King as expressed in this Memorandum. Any funds held by the City at the expansion of such thirty (30) year parsed for maintenance or operation of the Improvements, whether raised by private solicitation, donation, or otherwise, shall be applied as the City may at that time deem proper far pinks or other recreational was within the City of Bangor. e. Binding Effect This Memorandum is intended as a binding agreement by the City to acoept the donation offered by Ring on the terms and conditions herein set Roth- This orthThis Memorandum embodies the entire understanding of the parties with respect to the subject matter hermf, and an modification of this Memorandum or the tonus set forth herein shall be deemed effactive unless in a writing executed by both parties or their authorized representatives. f Governing Law. This Memorandum shall be construed in accordance with and shall be governed by the laws of the State of Maine. g. Chantable Contribution . The City acknowledges that it is the intention of King that his donation qualify as a charitable contribution as that term is defined in Section 170(c) of the Internal Revenue Code of 1986, as amended. Accordingly, this Memorandum is to be construed m further such intent and my provision herein, or the extent that it would cause said donation not to qualify as such charitable contribution, shall be deemed null and void. IN WITNESS WHEREOF, the parties hereto have caused this Memorandum to be executed under seal as of the day and year first above written. i�I COX OF BANGOR awa4o—pY Fdward A. Barrett City Manager State of Maine Penobscot, as a�_�2002 Than personally appeared the above-named PAwmd A. Barrett, City Manager, and acknowledged the foregoing to be his five act and deed in his said capacity, and the free act and deed of said body corporate. Before me, Notary PublidAttareq�iea�-��2. �. Printed Nm ae: )ajddjOj Commission exptrce: StmeofMalne Penobscot, ss Z72002 Then personally appeared the above-named Stephen King and acknowledged the foregoing to be his flee act and deed. meq/ Before me, Noway e:mqg Sw MLO At�-etkw Pring Name: Commission expiM WreS 11/5/06 State of Maine Penobscot, as W / 2002 Then personally appeared the above-named Tabitha King and acknowledged the foregoing to be her free act and deed. Before mq o ary Pobb JIL Printed Name: Commission expires: BOA* Ske Wdsm COOOOIM E# tre511/5/06