Loading...
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 ea ea 4 &t CI CL®id( 84-26] 0R D -E R' '8E� JGi P369 Title, '^ RECEIVED xprnorivi. Execuci. f ••xetaini q9,�; o 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