HomeMy WebLinkAbout1984-07-09 84-267 ORDER84-26]
Introduced by Councilor tax, duly 9, 19U
_ CITY OF BANGOR
(TITLE) (Ornery ....... a th riziug,.Rxaeatlpn vf...."Retaining. Wall..Agreement
Amendment" Middle Street Retainng Wall
Bp W City Cour+! of me Cim of Bee men
ORDERED,
THAT WHEREAS, the City of'Bangor and 82 Columbia Street ( a
Maine . partnership) enteredinto a "Retaining Wall Agreement" an
April. 19, 1983 concerning the construction andmaintenance of a
retaining wall on Middle Street; and
WHEREAS, said Agreement specified that said wall shall only
be used as a retaining wall for the City's sidewalk on Middle Street,
and for no other purpose whatsoever without the consent of the City -
of Bangor; and
WHEREAS, Adams -Pickering Asdociates(a Maine, limited partner-
ship), successor to the interests of 82 Columbia Street in the subject
premises, is desirous of utilizing said retaining wall in connection
with the construction of a parking deck to serve. the Adams -Pickering
Building, so-called, located. on Main Street, which building is
currently undergoing extensive renovations; and _
WHEREAS, a portion of said parking deck will extend into the
Middle Street Right of Way distance of approximately eighteen (18)
inches;
NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY
OF BANGOR THAT Adams=Pickering Associates is hereby granted permission
to locate'a portion of the aforementionedparking deck in the Middle
Street Right -of -Way for a distance of approximately eighteen (18)
aches, subject to the condition that it executeand abide by the
"Retaining Wall Agreement Amendment" referenced below.
NOW, THEREFORE, BE IT FURTHER ORDERED BY THE CITY COUNCIL OF
THE CITY OF BANGOR THAT the City Manager is hereby authorized and
directed, on behalf of the City of Bangor,:. to execute a "Retaining
Wall Agreement Amendment", a copy of which is on file in the Office
of the City Clerk.
IN CITY C(NNCIL
July 9, 1984
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84-26]
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JGi P369
Title,
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RECEIVED
xprnorivi. Execuci. f ••xetaini
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q9„
+ MTYOE SANDOR
CITY CIERN
Wall Agteement Amendment"
Middle.
Street Retainim Wall.
Y
mertrodu�1ed by -
,/
Councilmen
PY— Z67
THS N4a.IXA@1T is made tbis day of July, 1984, by and
betwen the CITY OF 6MY.oR (herefna�rClty"), a municipal corporation
located in Bangor, County of Penobscot, State of Maine, and ADAiS-
PiCNERM ASSCCMTES (hereinafter "Associates") , a Wine Limited
Partnership with a place of business in Ba pr, County of Penobscot,
State of Wine.
WfTNESSM:
WHEREAS, the City entered into a Retaining Wall Agreement with 82
Colombia Street (a Wine partnership) on April 19, 1983, a copy of which
Agreement is recorded In the Penobscot (binty Registry of needs in Volume
3384, Page 251; and
4MEREAS, pursuant to said Agreanent, the City constructed a
retaining wall along the northeasterly edge of the Middle Street public
right-of-way, a. portion of said retaining wall being located on land
owned by 02 Columbia street, reference may be had to the aforementioned
Agreement fora more particular description of the premises upon which
said retaining wail is located; and
WHEPEAS, Paragraph No. 3 of said Agreement provides that said
retaining wall shall only ne used as a retaining wall for the City's
sidepalk on Middle street, and for no otter purposes whatsoever without
the expressed written consent of authorized representatives of the City;
and
WHEREAS, Adorn Pickering Associates succeeded to toe interest of
82 Columbia Street by virtue of a Warranty Deed dated December 1, 1983,
recorded in the Penobscot County Registry of needs in, Volume 3474, Page
38; and
WHEREAS, said Associates is desirous of utilizing Hre retaining
wall in connection with the construction of a parking deck on the
premises acquired from 82 Columbia Street;
NOW, THER RE, in consideration. of the mutual InderstadHimgs and
agreements hereinafter set forth, the parties berate, for themselves and
their successors and assigns, hereby agree to mend the aforanentioned
Retaining hall Agreement as follow:
1. City does hereby grant pemmission to Associates, subject to
the terms and conditions of the original Agreement and those hereinafter
set forth, to use the subject retaining wll in connection with the
construction, reooastcuction, repair, maintenance, use, and bernpvicy of
as PerkIN deck on the promises acquired £ram 82 Columbia Street.
Associates expressly recognizes and wkmwledges that said retaining wll
was net designed or constructed by the City for toe purpose of supporting
ertical load. Accordingly, Aseeeiates agrees to 5einit to the City's
Heiner[, prior to the cmrmencement of construction, plans and
specifications for the parking deck and the utllizatipn of the retaining
wall in connection therewith, along with a structural analysis by
Associates' engineer indicating that the retaining wall is sufficiently
designed and constructed for the purpose to which it will be put by
Associates: Construction shall net commence until seen time as the City
Engineer gives a written notice to preened.
2. Associates agrees to abide by and perform all terms and
conditions of the original We ms nt and the terms and conditions of this
Agreement.
3. No wrk shall be commenced by or on behalf of Associates under
this Agreaaut until such time as Associates has obtained all necessary
approvals frau govarmiental authorities. All baproven shall be
constructed in accordance with the plane and specifications submitted in
accordance with Paragraph W. 1 above. in addition, the operation,
maintenance and me of the imrpovements shall be in accordance with the
laws and ordinances of the City of Sagor, as the was may, be wooled
£ran time to time.
4. Associates shall, at its sole cost and expense, repair any
damage to streets, sidewalks, fences, water lines, sewer lines,
electrical or telephone lines, or other public utilities arising frm the
exercise of its rights under this Agreement.
S. Associates shall, at its sole cost arta expense, maintain all
improveoents and appurtenances thereto utilized in connection with the
subject retaining all, and keep the same in good condition a l repair.
6. City shall have the right to construct, maintain, use and
operate, on the present grade, or such grade as it may establish In the
future, its streets, sidewalks, rower and/or water lines, in, upon, along
r across any or all pazts of City's Mule Street Right -of -Way adjacent
W the subject retaining all, all or any of which may be freely done at
anI, time or those by City, its employees, agents, or successors, without
liability to Associates or to anyone else for canpensation or danage.
Associates does forever release City frau all claims or deaands whidu it,
its successors and assigns, may have or hereafter acquire against City by
reason or on account of any injury sustained to the retaining sell or
parking deck, of any nature batsoever, on account of City's exercise of
its rights to construct, operate, maintain or use its public right-of-way
on Mule Street.
]. Associates assures and agrees to pay for all lass, daxage,
Injury or deatiu, including costs and expenses incident thereto, to any
person(s), £inm(s), or crporation(s), including City, or to the property
of any perwn(s), fimm(s), or co p rationis), including City, arising
from the rnnstruction of the imprownwts cnteoplated bereander or by
the loaintenence and repair thereof, or arising from the use and occupancy
Of said improveoents, or arising firm any failure of the subject
retaining wall to support said improvesents; and Associates shall
indaonify and save harmless the City and all of its employees and agents
fron and against all liability for any such loss, damge, injury or
death.
In case any suit shall be brought against City, an actumt of anIr
such loss, denage, injury or doth, Associates agrees at its own expense
to aw� the defense thereof and to pay any and all juignents recovered
against City. Provided, however, that City gives written notice of any
soon snit to Associates.
8. Associates shall carry public liability and property damage
insurance satisfactory to meet tine approval of City with a company
authorised to do business in the State of Maine insuring Associates and
City as the insureds therein against any and all losses or claims arising
Out of the exercise of Associates' rights hereunder, or any act or
mission of Associates, its agents, servants, employees, invitees Or
lessees. Said policies of public liability and property insurance shall
afford protection in minimum limits of liability of $500,600 for injury
or death to any one person and $500,000 for injury ox death to more then
one person, and $300,000 With respect to property damage. All such
insurance may be covered by a blanket policy of Associates. Associates
shall provide City with a certificate of insurance evidencing compliance
with the provisions of this Paragraph. City reserves the right to review
the minimum amounts of insurance it requires once every five (5) years
ad adjust the minimums by written motion to Associates to reflect the
economic conditions at that time in order to provide reasonably adequate
protection to the City.
9. Associates agrees to assume and pay the financial obligations
of 82 Columbia Street under Paragraph No. 4 of the aforementioned
Agreement, except that the parties hereby agree that the first
installment shall not become due and Payable until "oat 15, 19840 end
that all additional installments shall be due and Payable on the annual
anniversary date thereof. Interest shall be paid in accordance with the
original Agreement.
10. Msmciates shall, at its sole expanse, make all repairs to
the subject retaining wall, including the costs of replacement, if
necessary, arising from any settling, cracking, tipping or structural
failure Of Said Wall. All costa of maintenance and repair arising from
ordinary wear and tear shall be equally borne by Associates and City.
City shall have the right to make such repairs and conduct such
maintenance as may, be deemed necessary by the City engineer, after
reasonable notice to Associates, and shall be reimbursed by
Associates for the cost of the same, in accordance with the foregoing,
within 30 days after demand tberefor.
11. In the event of an inconsistency between the provisions of
the original Agreement and this Agreement, the parties agree that Ne
Provisions of this document shall prevail.
12. Failure on the part of the City to complain of any action or
mon-action on the part of the Associates, no matter bow log the same may
continue, shall never be deemed to be a waiver by City of any of its
rights molar the original Agreement or this Pgreemment.
IN WITNESS WHEREOF, ADAM1S-PICFSNINC ASSOCSMS has caused this
instrument to be executed in its nae and behalf by Donald T. Cohen,
President of 1912 Associates Development Corporation, its general
Partner, and the CITY W BNiNuR has Caused this instrument to be executed
n its name and behalf by JOHN W. FLYNN, its City Manager, as of the day
and year first above written.
�PICFERING ASSOCIATES
By 1912 Associates
Development Corporation
Its General Partner
Witness BY Omn T� free,
1912 Associates
Development Corporation
65Lu4frli� W a I
By
Jolm W. Fly
Its City Manage[
STATE OF MINE
Penobscot, ss. July , 1984
Personally appeared the abOv named Donald T. Cohan, President of
1912 Associates Development Corporatiion, a rein corporation, General
Partner of Adams -Pickering Associates, a Maine limited partnership, and
acknowledged the foregoing instrument to be his free act and! deed, in his
said capacity, acl the free act and deed of said corporation and said
limited partnership.
Before me,
Justice of the Peace, Notary Public,
Attorney at Law
STATF OF !WINE
Penobscot, as. .July. , 1984
Personally appeared the shove -nand John W. Flynn, City Manager of
the City of Bangor and acknowledged the foregoing instrument to he his
free act and deed In his said capacity, and the free act and deed of said
City o£ Bangor.
Before Ne,
(Printed Name )
Justice of the Peace, Notary Public,
Attorney at Law
&v- 26'7
RETAINING WALL AGNEYPENT AMNDNE dT
THIS AMmSMEET is made this day of .July, 1984, by mal
between the CITY OF BAMAR (herefna�City"), a municipal corporation
located in Banger, County of Penobscot, State a Maine, and ADAPE-
PICI®IING ASSOCIATES (hereinafter "Associates"),a Maine Limited
partnership with a place of business in Bangor, County of Penobscot,
State of Maine.
WITNESSE111:
WFEREAS, the City entered into a Retaining Wall Agreement with 82
Columbia Street (a Moine partnership) on April 19, 1983, a copy of Mich
Agreement is recorded in the panshacot County Registry of Bends in Volume
3388, Page 251; and
WHEREAS, pursuant to said Agreement, the City constructed a
retaining wall along Ne northeasterly edge of the Middis Street public
right-of-way,'a portion of said retaining wall being located an land
owoed by 82 Columbia street, reference may be had to the aforementioned
Agreement for a more particular description of the promises upon Mich
said retaining wall is located; and
N9EREAS, Paragraph No. 3 of said Agreement provides that said
retaining wall shall only be used as a retaining well for the City's
sidewalk an Middle Street, and for no other purposes whatsoever without
the express ] written consent of authorized representatives of the City;
and
WHEREAS, Admms-Pickering Associates succeeded to the interest of
82 Columbia Street by virtue of a Warranty Deed dated December 1, 1983,
recorded in the Peabscot County Registry of needs in Volume 3474, Page
38; and
VUERF.AE, said Associates is desirous of utilizing the retaining
wall in connection with the construction of a parking deck on the
premises ac@lird from 82 Columbia Street;
SOA, THEREFORE, in consideration of the mutoal understandings and
agreements hereinafter set forth, the parties hereto, for themselves ad
their successors and assigns, hereby agree to aped the aforementioned
Retaining Wall Agreement ON follows:
1. City does hereby grant permission to Associates, subject to
the tenors and conditions of the original Agreement and those hereinafter
Mb forth, to use the subject retaining wall in connection with the
construction, reconstruction, repair, maintenance, use, and occupancy, of
a parking deck on the premises acquired from 82 Columbia Street.
Associates expressly recognizes and acknowledges that said retaining tall
as not designed or constructed by the City for the purpose of supporting
a vertical load. Accordingly, Associates agrees to submit to the City's
Engineer, prior to the cmmencenent of construction, plane and
Specifications for the parking deck and the utilization of the retaining
wall in conneltion therewith, along with a stractural analysis by
Associates' engineer indicating that the retaining wall is sufficiently
designed and conetrneted for the p rpose to Mith it will he put by
AssociateS. Construction shall not commence until such time as the City
Engineer gives a written notice to proceed.
2.Associates agrees to abide by and perform all temp and
conditions of the original Agreement and the terns and conditions of this
Agreement.
3. No work shall be camened by or on behalf of Msociates under
this Agremost until such time as Associates has obtained all necessary
approvals frm govern ental authorities. All improvenxrts shall he
constructed in accordance with the plans aud specifications submitted in
accordance with ParagraPb No. Iabove. In addition, the Operation,
maintenance and use of the hocpoveuents shall be in accordance with the
Laws aryl ordinances of the City of Bangor, as the same may he m mals]
frau time to t me.
4. Associates atoll, at its sole cost and expense, repair any
daimge to arrests, sidewalks, fences, water lines, asset lines,
electrical or telephone lines, or other public utilities arising iron the
exercise of its rights under this Agrement.
5. Associates sball, at its sole cost and expense, maintain all
unprovennts an3 appurtenances thereto utilises in connection with the
subject retaining well, and keep the sane in goad coudition and repair.
6. City shall have the right to construct, maintain, use and
operate, on the present grade, or such grade as it may establish in the
future, its arrears, sidewalks, sewer aWor water lines, in, upon, along
or across any or all ferts of City's Middle Street Right -of- ay edjetent
to the subject retaining wall, all or any of which may he freely done at
any time or times by City, its em ogees, agents, o without
liability to Mmciates or to anyone else for eaopensation or dmmge.
Associates does forever release City frau all claims or dm.acds which it,
its successors and assigns, may haver hereafter acquire against City by
reason or on account of any injury sustained to the retaining wall or
parking deck, of any nature wbatmoser, an mOmat of City's exercise of
its rights to construct, operate, maintain or use its public right-of-way
On Middle Street.
7. Associates amasses and agrees to pay for all loss, damage,
injury or death, including costs and expenses intidsnt thereto, to any
person(s), fina(s), or corporation(s), imluding City, or to the property
of any person(s), fitm(s), or corpozation(s), including City, arising
frau the construction of the improvements conteoplabed herannueror by
the maintenance ani repair thereof, orarising frthat use aud occupancy
of said hoproveoents, o sing frau any, failure of the subject
retaining wall to support said improvessnts; and Associates shall
iudeonify and save handless the City ani all of its suployeas and agents
frau cud against all liability for any soon lase, dsoage, injury or
death.
In case any suit shall be brought against City, on amount of any
such loss, damage, injury or death, Associates agrees at its own expense
to assume the defense thereof and to pay any ami all judgments recovered
against City. Provided, however, that City gives written notice of any
such suit to Associates.
S. Associates shall carry public liability and property damage
insuzanna satisfactory to meet the approval of City with a company
authorized to d0 business in the State of Paine insuring Associates and
City as the insureds therein against any and all losses or claims arising
out of the exercise of Associates' rights hereunder, or any act or
mission of Associates, its agents, servants, employees, invitees or
lessees. Said policies of public liability and property ineorame shall
afford protection in mindmus limits of liability of $500,000 for injury
or death to any one person and $500,000 for injury of death to more than
ore person, and $300,000 with respect to property damage. All soon
insurance may be covered by a blanket folicy of Associates. Associates
shall provide City with a certificate of. insurance evidencing conpliance
with the provisions of this paragraph. City reserves the right to review
the min4mm amounts of insurance it requires once every five (5) }rears
and adjust the minimum by written notice to Associates to reflect the
economic conditions at that time in order to provide reasonably adequate
Protection to the City.
9. Associates agrees to assume and pay the financial Obligation
of 82 Columbia Street under Paragraph W. 4 of the aforementioned
Agreement, except that the parties hereby agree that the first
installment shall not became due and payable until August 15, 1984, and
that all additional installments shall be due and payable On the annual
anniversary date tbereof. Interest shall be paid in accordance with the
original Agreement.
10. Mmociates shall, at its sole expense, make all repairs to
the subject retaining wall, including the costs of replacement, if
necessary, arising from any settling, cracking, tipping or structural
failure of said wall. All costa of maintenance and repair arising from
ordinary rear and tear shall be equally borne by Associates and City.
City shall have the right to make such repairs and conduct such
maintenance as may be deaned necessary by the City Engineer, after
reasonable notice to Associates, and shall be reimburaad by
AsSOCiates for the cost of the same, in accordance with the foregoing,.
within 30 days after demM therefor.
11. In the event of an inconsistency between the provisions of
the original Agreement and this Agreement, the parties agree that the
provisions of this document shall prevail.
12. Failure on the part of the City to mnplain of any action or
ron-action on the part of the Associates, On matter how lag tM same may
COntioue, shall nevet be deemed to be a waiver by City of any of its
rights wrier the original Agreement or this Agreement.
IN WITNESS WHEREOF, AOAM16-pICKBRING ASSOCATES bas caused this
instrument to be executed in its name and behalf by Donald I. Cohen,
President of 1912 Associates rmelolment Corporation, its general
partner, and the CM OF BAt#AR has mused this instremnt t0 be executed
in its name and behalf by .Ante; W. MYNA, its City Manager, as of the day
and year first above written.
ADAMS-PICkeRIM ASSOCIATES
By 1912 Associates
Develolment corScration
Its General Partner
Witness BY censer � Pres,.
1912 Associates
Development Corporation
MR'at 0 Q.wKU9
FY
Tama. Flynn
Its City Manager
Personally appeared the aEwe-named Donald T. Cohen, President of
1912 Associates oeveloptent Corporatiion, a Maine mrporacion, General
Partner of Adats-Pdekering Associates, a Maine limited partnership, arc]
acknowledged the foregoing instrim nvt to be his free act and deed, in his
said capacity, and the free act and deed of said corporation and said
limited partnership.
Before me,
(Panted Nate )
Justice of the Peace, Notary Public,
Attorney at Law
"AM OF MAINE
Penobscot, W. Jaly , 1904
Personally appeared the above-namd John W. Flynn, City Manager of
the City of Bangor and acknowledged the foregoing instrument to be his
free act and deed in his said capacity, and the free act and deed of. said
City of Bangor.
Before me,
Justice of the Peace, Notary Public,
Attorney at naw
STATE OF MINE
Penobscot, as.
Joly
1904
Personally appeared the aEwe-named Donald T. Cohen, President of
1912 Associates oeveloptent Corporatiion, a Maine mrporacion, General
Partner of Adats-Pdekering Associates, a Maine limited partnership, arc]
acknowledged the foregoing instrim nvt to be his free act and deed, in his
said capacity, and the free act and deed of said corporation and said
limited partnership.
Before me,
(Panted Nate )
Justice of the Peace, Notary Public,
Attorney at Law
"AM OF MAINE
Penobscot, W. Jaly , 1904
Personally appeared the above-namd John W. Flynn, City Manager of
the City of Bangor and acknowledged the foregoing instrument to be his
free act and deed in his said capacity, and the free act and deed of. said
City of Bangor.
Before me,
Justice of the Peace, Notary Public,
Attorney at naw