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HomeMy WebLinkAbout2000-04-10 00-157 ORDERitem N,.00-157 Date: 4-10-M Item/Subject: ORDER Authorizing the city manager to execute a sublease Agreement with Partnerships for a Healthy Community Responsible Department: Community & Economic Development Commentary: This Sublease Agreement is necessary to give PHC legal access to the portion of the Freeses Building leased by the City for the purpose of creating the Children's Museum. Department Head - Managers Comments: This is a necessary first step to allow work A begin on the Children's Museum. It does nor foreclose other eventual actors such as the sale of this portion of the building to this gmup. As noted, this will allow the Museum m begin work. I understand that they are very close to signing a contract to begin construction. e Qty Manager Asaotlated Information: CA&MI Finance Director Legal Approval: f'T City Solidtor X passage _ First Reading page _ of Referral Assigned ro Councilor vardamia April 10, 2000 CITY OF BANGOR (TITLE.) Order, Authorising the City Manager to Execute a Sublease Agreement with Partnerships for a Healthy Community ORDERED, THAT The City Managers her"y authorized and directed to cute Sublease Agreementwith Partnerships for Healthy Community for space in the Presses Building for the Children's Museum, a copy of which is attached hereto, in a farm a ceptible to the City Solicitor oI Assistant City Solicitor. IN CPI4 MENCIL April 10. 2000 Motion for Passage Made and Seeonded Passed CR4 PEE F R 71My Authorizing the City Manager to Execute a Sublease Agreement with Partners for a Healthy Community 00-15] This Agreement is made and entered into as of April , 2000, by and between the CITY OF BANGOR, a municipal corporation organized and existing under the laws of the State of Maine, and having its principal offices at 73 Harlow Street, Bangor, Maine (hereinafter "City"), and PARTNERSHIPS FOR HEALTHY COMMUNITIES (hereinafter "PHC"), a Maine nonprofit corporation duly organized and existing under the law of the State of Maine, with a place of business in Bangor, County of Penobscot, State of Maine, WITNESSETH WHEREAS, IMC Partners, LLC is the owner of the Main Street portion of the former Presses building located at 74-96 Main Street, Bangor, Maine fi ereiafter "Main Street Block'); and WHEREAS, the City and PHC entered into an agreement, dated December 16, 1998 (hereinafter "Mother Agreement), in which the City agreed to enter into an agreement with IMC Partners, LLC, providing for the lease, until December 31, 2000, with an assignable option to purchase amid December 31, 2000, of approximately 22,000 square feet of spaces in the Maine Street Block designated as `T.H.C. —Children's Museum" on Master Agreement Exhibit A; and WHEREAS, on March 5,1999, the City entered into a lease, with an assignable option to purchase, with IMC Partners, LLC, in accordance with the City's obligations under the Master Agreement (hereinafter"Lease'); and WHEREAS, IMC Partnere, LLC has consented to this Agreement by signing below; NOW, THEREFORE, IN CONSIDERATION of the mutual premises and covenants contained in this Agreement, the parties hereto agree as follows: EIti I IN I a 99 Mal Kip The City, for and in consideration of the rents to be paid and the obligations to be performed by PHC as hereinafter provided, does hereby demise and lease onto PHC, and PHC does hereby take and lease, upon and subject to the terms and conditions hereinafter expressed, a cemain portion of the former Freese's building designated as "P.H.C. — Children's Museum" enriched hereto on Exhibit "A". ARTICLE It - TERMS TO HAVE AND TO HOLD the demised premises unto PHC commencing the date of the execmion of this Agreement and terminating on December 31, 2000. ARTICLE III - COMPUTATION OF ANNUAL RENTAL PHC shall pay to the City the sum of ONE DOLLAR (Sl DO) for the peric l of this Agreement. ARTICLE IV - USE, OCCUPANCY AND ALTERATIONS TO PREMISES A. PHC shall have the right to use, occupy and maintain the premises herein described in a reasonably business -like, careful, clean, and reasonably safe manner for the purposes of a children's museum and for no other purposes whatsoever without the prior written consent of the City. B. All improvements on the demised premises shall be constructed and maintained in accordance with all applicable building, fire, and properly maintenance modes of the State of Maine, and the Laws and Ordinances of the City of Bangor including the site plan approval process outlined in the Code of the City of Bangor. Prior to commencing any construction, PHC shall secure all necessary approvals from the City of Bangor, the State of Maine, and the United States required wider any applicable law, ordinance or regulation, including City of Bangor Planning Board approval. C. The City, through its agents, shall have at all reasonable times the right, upon reasonable notification to PHC, to go on and inspect the premises, any buildings, structures or improvements thereon, with an authorized representative of PHC, and the right of access to mility systems located on the demised premises for the purposes of maintenance, repair, correction, or inspection For purposes of this program, "reasonable notification" shall include any acted notification to PLC or its agent not less than one business day prior on tine date of inspection "Reasonable times" shall mean any time during PHC's regular business homes, or during normal weekday business boors if PHC shall cease operations or shall maintain other than regular business hours. Any such inspections shall be conducted in a manner which does not interfere will, the privacy or confidentiality of PHC or its customers. ARTICLE V - HAZARDOUS WASTE PHC hereby covenants and agrees that it shall not, during the teen of this Agreement, including any extension or rionewal hereof, permanently place, rause to be placed, deposit or discharge any hazardous waste upon the demised premises, and fuller expressly agrees that it shall indemnify the City from any and all costs, expense or liability, of whatever hind or nature, incurred by be City in detecting, evaluating, removing, running, disposing of or otherwise responding to any hazardous waste placed or deposited by PHC in violation ofthis Article. PUC hereby covereaaha and agrees that it shall not, during the term of this Agreement, including any extension or renewal hereof, violate any local, state or Federal regulation, ordinance or statute pertaining t hazardous waste or hazardous rnateron and further expressly agrees that it shall indemnify the City from any and all costs, expense or liability, of whatever kind or nature, incurred by the City for any such violation by PHC Such costs shall be deemed 0 include, without limitation, the City's cosy of defending my suit filed by any person, entity, W-157 agency, or governmental authority; paying any fines imposed in cormexion with such suit; paying any judgments or otherwise settling any damage claims; complying with any order by a court of competent jurisdiction directing the City to take remedial action with respect to such waste; and of all associated attorney's fees and costs. For the purposes of this Article, the term "hazardous waste" shall be deemed to include every substance now or hereafter designated as a hazardous waste under any provision of State or Fedoml law. PHC's obligations under this Article shall be diamond to survive the expiration or nomination of this Agreement, but shall be limited to acts or occurrences by PHC, its agents, employees and assigns, during the term, or any extension or renewal thereof, of this Agreement. ARTICLE VI -DAMAGE BY FIRE OR OTHER CASUALTY In the event of the destruction or damage of the demised premises by fire or other casualty, the City shell have the right but not the obligation, to rebuild and repair the demised premises for cumin ucy. Ifthe City elects not to rebuild and repair, it shall so notify PHC within thirty (30) days or more expeditiously ifpossible of its decision. In the event the damages are of the extent as to reasonably prevent PHC firm operating within the demised premises, then PHC shall have the right to terminate this Agreement and shall notify the City within the aforementioned time period, and PHC's obligation on pay our as herein provided shall terminate upon receipt of such notice by the City and surrender of the demised premises by PHC. ARTICLE VH -TAXES PHC agrees to pay, when due, any and all taxes and/or assessments, fees or charges of any kind whatsoever, as may be imposed during the term hereof, or any extension of the term of this Agreement, by any governmental authority upon the demised premises, including PHC's leasehold interest therein, any structures, or improvements thereon, or any personal property located thermic unless otherwise exempted by law. ARTICLE VIII - NONDISCIUMINATION PHC for itself, its personal representatives, successors in interest and assigns, and as par[ of the considerations hereof, does hereby covenant and agree as a covenant running with the land that (1) no person or group of persons shall be excluded on the grounds of race, color, or national origin from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use or occupancy of said demised premises; (2) in the construction of all improvements, buildings, structures, on, over or under such land and the famishing of services Cher on, no person or group of persons shall be excluded on the grounds of race, calm, or national origin from participation in, denied the benefits of, or be otherwise subjected or malawfa) discrimination; and (3) PHC shall use Ore premises in compliance with all other requvements as may be imposed by or pursuant b Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Parc 2 1, Nondiscrimination in Federally Assisted Programs of the Department of Transportation Effectuation of Tide VI of the Civil Rights Act of 1964, and as said regulations may be amended. In the event of breach of any of the above nondiscrimination covenants, the City shall have the right after failure of THE to recfify such breach within thirty (30) days alter receipt of notice from the City, to Immature this Agreement. Provided, however, that Me City shall not have the right to iNLate termination of Me Agreement under this Article with respect to any complaint of discrimination which is pending final resolution or adjudication before any agency or court of the State of Maine or the United States. ARTICLE IX - COVENANTS OF QUIET ENJOYMENT PIC, subject to the terms and provisions of this Agreement on payment of the rent, and observing, keeping and performing all the terms and provisions of the Agreement on its part to be observed, kept and pdrformed, shall lawfully, peaceably read quietly have, hold, occupy and enjoy the demised premises during the term hereof without hindrance or rejection by the City or any other persons. ARTICLE X - LIENS The City and PHC agree that each will promptly discharge (either by payment or by filing of the necessary bond or otherwise) any mechanics', materialm sn's or other liens against the demised premises, any buildings, structures or improvements thereon, which liens may arise out of any payment due for labor, services, materials, supplies or equipment which may have been finnished to or for the City or PHC, respectively. ARTICLE XI - REMOVAL OF PROPERTY Upon the termination or final expiration of this Agreement, the improvements and other Personal property erected or located upon the demised premises by PHC shall remain the property of Ne PHC, and PHC shall have the right to remove Me scone from the demised premises within sixty (60) days from Me date of termination or final expiration of this Agreement. Any such property not so removed within said sixty (60) days shall became the property of the City In be disposed of in such way as the City may deem fit In Me event the PHC elects to remove said improvements and other personal property, the buildings and land appmtemnt thereto shall be removal to as near as possible its condition re at the commencement of the Agreement, ordinary wear said tear excepted. In the event PHC shall fail to remove any moveable personal property within sixty (60) days from Ne date of termination or final expiration of this Agreement, the City shall be entitled in recover from PHC, the City's reasonable corn incurred in removing or disposing of such personal property. In such event, there shall be deducted from the City's costs the fav value to Me City actually realized from We, use or other disposition of the personal property concerned. ARTICLE XII -SURRENDER OF POSSESSION Subject to Ne provisions contained in Article XI, PHC shall, upon the remonstrant of this Agreement, surrender the quiet and peaceable possession of Me demised premises. 00-15) ARTICLE XOI - TERMINATION It is covenanted and agreed that. (1) If PHC shall neglect or fall to pay the rent or other charges payable bereonder and such default shall continue for a period of thirty (30) days after written notice thereof by the City; or (2) if PAC shall neglect or fall or perform or observe any of the other covenants, terms, provisions, or conditions on its part to be performed, or observed, and such neglect or failure shall continue for a period of thirty C30) days after written notice thereof by the City, or if such covenants, terms, provisions or conditions cannot be performed o observed within said thirty (30) day period, if PAC falls to diligently prosecute the coring of such neglect or failure, or (3) If the estate hereby created shall betaken on execution or by other process of law; or (4) If PHC shall be declared bankrupt or insolvent according to law; or (5) If any assignment shall be made of the property of PHC for the benefit of creditors; or (6) If a receiver, guardian conservator, or trustee in bankruptcy, or other similar officer shall be appointed m take charge of all or any substantial part of PAC's property by a Court of competent jurisdiction; or (7) If a petition shall be filed for a reorganization of PHC under provisions of the Bankruptcy Act now or bereafter enacted; or (8) If PAC shall file a petition for such reorgani bion or for arrangements under any prevision of the Bankruptcy Act now or hereafter enacted; Than, in any of the said cases (notwithstanding any license of any former breach of covenma or waiver of the benefit hereof or consent in a fanner instance), PAC may be considered in default hereunder, and the City lawfully may, immediately or at any time thereafter, and without demand or notice, enter into and upon the said Premises or any pan thereof, in the name of the whole and repossess the same as of the City's former estate, and expel PHC and those claiming through or under it and remove its or their effte (forcibly if necessary) without being deemed guilty to any turner of trespass, and without prejudice to any remedies which might otherwise be used for ars of rent or Preceding breach of wtvtnant. Upon such entry, this Agreement shall terminate, and PHC shall be liable to Pay as rent, amounts reserved as would have become due under this Agreement if this Agreement had not been terminated or if the City had not entered or reentered as aforesaid. Notwithstanding the foregoing, PAC's liability shall not exceed the difference, if any, between the lentil which would have been due bad them been no such termination, and the amount being received by the City as rent firm any new tenant or occupant 00-157 of said premises. In order in mitigate PHC's damage hereunder, the City agrees to make every reasonable effort W secure subsequent tenami at a rental equal to the then prevailing local rate for the demised premises. GIa Y(N IIciNI�Vi[U3Jtl`KYa SdB PHC shall pay to the City a reasonable attorney fee in the event the City employs an attorney to collect any rents due, hem seder and secures ajudgment in connection with collection of said rent, or legal process is levied upon the interest of the PHC in this Agreement or in said premises, or in the event PHC violates any of the terms, conditions or covenants on the part of PHC herein contained, provided that PHC Pads to promptly correct the violation of any term, condition or covenant after receipt of notice that it is in violation thereof. ARTICLE XV -ASSIGNMENT, SALE AND SUBLETTING PHC shall not at any time assign, sell, convey or transfer this Agreement or any interest therein, or sublease or sublet or rent the premises, or any part thereof, without the prior written consent of the City. In the event of an approved sublease all provisions shall extend m, bind and more to the benefit of not only the City and PHC but also their successors and assigns. ARTICLE XVI - OPTION TO PURCHASE PHC shall have the right to enter into a new lease or purchase the demised premises in accordance with Section 13 of the Agreement between the City of Bangor and Partnership for Healthy Communities dated December 16,1998. ARTICLE XVII -AUTHORITY TO ENTER INTO AGREEMENT PHC hereby represents and warrants that it has taken all necessary procedural and legal steps as required by federal, state and local laws and regulations for the purpose of authorizing the execution of this Agreement and that execution of this Agreement by PHC's Executive Director renders this Agreement a valid and binding document on the part of PHC and the same is fully enforceable in all of its terns and conditions by the City. The City hereby represents and warrants that it has taken all necessary procedural and legal steps as request under all state, local and federal laws and regulations, and that execution of this Agreement by the City Manager renders ibis Agreement a valid and binding document on the part of the PHC and is fully enforceable in all of its terns and conditions by PHC. Gla 1 IM M W VI I ISP/:l VI S 11 Failure on the part of the City to complain of any action or non -action on the part of PHC no matter haw long the same may continue, shall never be deemed to be a waiver by the City of any of the City's rights Deventer, Further, it is covenanted and agreed that no waiver many time of any of the provisions hereof by the City, shall be construed as a waiver of any othe provisions hereunder, and that a waiver at any time of any of the provisions heccof shall not be 0 Vcf construed m any subsequent time as a waiver of the same provisions. The approval of the City or of any action by PAC requiring the City's consent or approval shall not be deemed In waive or render unnecessary the City's consent or approval of any subsequent similar act by PAC. ARTICLE XIX - NOTICES Notices to PAC provided for in this Agreement shall be sufficient if sent by registered or anode] mail, return receipt requested, postage prepaid to: Sean Fortieth, Executive Director, Partnerships for Healthy Communities, P.O. Box 661, Bangor, Maine, 04402-0661; and notices to the City that be sufficient if seat by registered or certified mail, remm receipt requested, postage prepaid to: City Manager, City of Stuart, City Hall, 73 Harlow Street Borger, Maine, 04401. ARTICLE XX- INVALIDITY OF If any term or provision of this Agreement or the application thereof to any person inconsonance is hereafter determined to be to any extent, invalid or m rehorceable, the remainder of Ws Agreement or the application of such terms and provisions to persons or circumstances other than Nose to which it is held invalid or unenforceable shall not be affected hereby and such tum and provision of this Agreement shall be valid and be enforceable in the fullest extent permitted by law. ARTICLE XXI -CONSTRUCTION The headings appeming in this Agreement are intended for convenience and reference only, and not to be considered in constming this Agreement. ARTICLE XXII - NO PARTNERSHIP OR JOINT VENTURE CREATED Nothing comeined herein shall be deemed or construed as creating the relationship of principal and agent or of pro mership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent nor any other provision contained herein or any acro of the parties hereto shall be deemed to create any relationship between the parties other than the relationship of landlord and tenant. ARTICLE XXIII - GOVERNING LAW This Agreement shall be governed exclusively by the provisions hereof and by the laws of the State of Maine as the same may from time to time exist. ARTICLE XXIV— AMENDMENT TO AGREEMENT This Agreement contains all the terms and conditions between the parties hereto and no alteration, amendment or addition hereto shall be valid unless in writing and signed by both parties hereto. IN WITNESS WHEREOF this agreement has been executed, sealed and delivered as of the day and year first above written. PARTNERSHIP FOR HEALTHY COMMONTIES Edward A. Barrett, City Manager