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HomeMy WebLinkAbout1983-05-23 83-204 ORDERIntroduced by Councilor Gordan, May 23, 1983 CITY OF BANGOR (TITLE.) (Drijer, Authorizing Execution of An EasementRelative to Franklin ..S.b Street Rih, -oWay „ ..... ....... gt£- ............. BY W My CnawE of City ofBanyor: ORDERED, THAT WHEREAS, the City of Bangor is the owner of the Franklin Street right-of-way, so-called, originally laid out andestablished by the Common Council of the City of Bangor on October 28, 1844; and WHEREAS, 1912 Associates Development Corporation is the owner of the Pierce Building, so-called, located at 23-37 Franklin Street, which property abuts the easterly rigbt-of-way line of the aforementioned Franklin Street right -o£ -way; and WHEREAS, 1912 Associates Development Corporation i desirous of acquiring a easement relative to a portion of the Franklin Street right-of-wafor the purpose of excavating, con- structing, - structing, and erecting an enclosed access area fore the provision of ameans Of ingress and egress to the lower level of the said PierceBuilding; and WHEREAS, the City Council hereby determines that the facilitation of the rehabilitation of the Pierce Building is in the public interest in that said rehabilitation will contribute to the revitalization of downtown Bangor, NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT the City Manager is hereby authorized to execute an Easement, on behalf of the City of Bangor, granting 1912 Associates Development Corporation the right to construct certain improvements within the Franklin Street right-of-way, a copy of said Easement being on file in the Office of the City Clerk and incorporated herein by reference. In City council May 23,1983 Ananded By Vote ] Yes l No -.l Absent Voting yea Brown, Cnc,Davia, Frankel,Jordan, - 83.204 Boury,willey Voting No Cass 0 RDE R .:Absent wOymeuth Title, Amended in the last paragraph Authorizing Execution of an Basement -- 4th line after the mord corporation ...................................... add the following - or such other °1iV c entity a may appear as the *met�laklva w Franklin 8t. right of Way of record at the Chrc of execution .............. ....................... Passed as amended Vote ) Yea 1 No 1 Absent Voting yes Brown, cox, DAVIS, aduced and filed by Frankel, Sordw,8eucy, Miley Voting NO Gass, Absent wleywuth Conic C Cla P3..2dy ,THIS EASEMENT is made and entered into this � day of 1983, by and between the CITY OF BANGOR (hereinafter referred to as "Grantor"), a municipal corporation located in Bangor, County of Penobscot, State of Maine and 1912 ASSOCIATES DEVELOPMENT CORPORATION (hereinafter referred to as "Grantee"), a Maine corporation with a principal place of business in Bangor, County of Penobscot, State of Maine. WITNESSETH: WHEREAS, Grantor is the owner of the Franklin Street Right - of -Way, so-called,originally laid out and established by the Common Council of the City of Bangor on October 28, 1844. Reference may be had to the City of Bangor Road Book Volume 1, Page 139, located in the Office of the City Engineer, City Hall, 73 Harlow Street, Bangor, Maine for more information relative to said right-of-way; and WHEREAS, Grantee is the owner of record of land and buildings thereon located at 23-37 Franklin Street, which property abuts the easterly right-of-way line of the Franklin Street Right -of -Way. Reference may be had to a Warranty Deed from Gail R. Stafford and Colleen S. Stafford to 1912 Associates Development Corporation dated March 30, 1983, recorded in the Penobscot County Registry of Deeds an volume 3378, Page 35, for a more particular description of said Franklin Street property; and WHEREAS, Grantee proposes to excavate, construct, and erect an enclosed access area in front of the existing building located on the premises for the purpose of providing a means of ingress and egress from Franklin Street to the lower level of said building; and WHEREAS, Grantee requires an easement from Grantor to allow for the location of said access area within a portion of the Franklin Street Right -of -Way; NOW, THEREFORE, in consideration of the sum of $1.00 and other good and valuable consideration paid by the Grantee to the Grantor and in consideration of the covenants and agreements herein- after set forth, the parties hereto, for themselves and their successors and assigns, agree as follows: 1. Grantor does hereby grant in perpetuity to Grantee, subject to the terms and conditions hereinafter set forth, an easement to construct, reconstruct, repair, maintain, use and occupy an enclosed walkway and any necessary appurtenances thereto in, upon and over a certain parcel of land situated in the City of Bangor, County of Penobscot, State of Maine, and lying within the public Franklin Street Right -of -Way of Grantor, described as follows, to wit: See Exhibit A attached hereto and incorporated herein by reference. -2- 2. The following activies by and at the sole cost and expense of the Grantee are contemplated by the parties in.the exercise of Grantee's rights hereunder: a. Excavation within the above-described area for the construction of a below grade sidewalk and stairways. b. -Construction of a retaining wall to ensure, protect, and maintain the integrity of Grantor's street and sidewalk. C. Construction Of a footing and foundation to support the retaining wall and/or enclosure. - d. construction and erection of a trans- parent enclosure over the sidewalk and/ or retaining wall. 3. The use of this Easement, or any improvements placed on or within the premises pursuant hereto, shall be limited to the provision of a means of ingress and egress to and from the lower and Franklin Street levels of Grantee's existing building located at or about 23-37 Franklin Street or the provision of pedestrian amenities, such as benches, tables, chairs, and landscaping. It is expressly understood by the parties hereto that the easement or improvements shall not be used for any commercial purposes whatsoever. It is also understood that the pedestrian amenities shall be located so as not to hamper or hinder public ingress and egress to and from Grantee's existing building. 4. Grantor does not warrant title to the a£oredescribed premises in which the foregoing Easement is granted and does not undertake to defend the Granteeinthe peaceable enjoyment thereof. 5. No work shall be commenced by or on behalf of Grantee under this Easement until such time as the Grantee has obtained all necessary approvals from governmental authorities. All improvements shall be constructed in accordance with such plans and specifications as may be approved in writing by the City Engineer of the City of Bangor. In addition, the operation, maintenance and use of the improvements shall be in accordance with the Laws and Ordinances of the City of Bangor, as amended. 6. Grantor retains 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, sewer and/or water lines, in, upon, along or across any or all parts of Grantor's Franklin Street Right -of -Way adjacent to the aforedescribed premises, all or any of which may be freely done at any time or times by Grantor, its employees, agents, or successors, without liability to Grantee or to -3 - anyone else for compensation or damage. Grantee does forever release Grantor from allclaimsor demands which Grantee, its successors and assigns, may have or hereafter acquire against Grantor by reason or on account of any injury sustained to the aforedescribed premises or any improvements thereon, of any nature whatsoever, on account of the Grantor's exercise of its rights to construct, operate, maintain or use its public right-of-way on Franklin Street. By way of example, not limitation, the parties agree that Grantor shall not be liable to Grantee, its successors or assigns, for any damage arising from water runoff. ]. No billboards, signs, handbills, posters, advertising materials, campaign materials, etc. of any kind or nature shall be erected, displayed, placed, or maintained upon or within any improvements constructed within the aforedescribed premises. B. Grantee shall repair, at its sole cost and expense, any damage to streets, sidewalks, water lines, sewer lines, electrical or telephone lines, or other public utilities arising from the exercise of its rights under this Easement. Grantee shall bear the full cost of any relocation of existing utilities, structures, or other appurtenances which may be located within or upon the aforedescribed premises. Grantee shall also repair, at its sole cost and expense, any damage to the property of others arising from the exercise of its rights under this Easement. 9. Grantee shall, at its sole cost and expense, maintain all improvements and appurtenances thereto located within the afore - described premises, keep the same in good condition and repair, and provide for trash and snow removal therefrom, all for so long as the improvements shall remain within or upon the aforedescribed premises. 10. Grantee assumes and agrees to pay for all loss, damage, injury or death, including costs and expenses incident thereto, to any person(s), firm(s), or corporations)including Grantor, or to the property of any person(s), firm(s), or corporation(s) including Grantor, arising from the construction of the improvements contemplated hereunder or by the maintenance and repair thereof, or arising from the use and occupancy of the aforedescribed premises and the -- improvements located thereon; and Grantee shall indemnify and .save harmless the Grantor and all of its employees and agents from and against all liability for any such loss, damage, injury or death. In case any suit shall be brought against Grantor, on account of any such loss, damage, injury or death, Grantee agrees at its own exnense to assume the defense thereof and to pay .any and all judgments recovered against Grantor; provided, however, that Grantor gives written notice of any such suit to Grantee. 11.. Grantee agrees to pay, when due, all taxes and assessments as may be imposed by any governmental authority upon the aforedescribed premises and any buildings, structures, or improvements thereon, during the term of this Easement. Grantee further agrees that it does hereby waive all right or privilege of exemption from municipal taxation of the aforedescribed premises, buildings, structures, or improvements thereon, as may be available by reason of Grantor's status as a municipal corporation, or for any other reason whatsoever, and that the City of Bangor, in its capacity as a taxing authority, may assess all taxes as would otherwise be applicable to the afore - described premises, buildings, structures or improvements thereon, as if such exemption did not exist. Provided, however, that Grantor agrees that Grantee shall have the right to contest the amount of such taxes or assessments. 12. Grantee, at all times during the term of this Easement, shall carry public liability and property damage insurance satisfactory to meet the approval of Grantor with a company authorized to do business in the State of Maine insuring the Grantor and Grantee as the insureds therein against any and all losses or claims arising out of the exercise of Grantee's rights hereunder, or any act or omission of Grantee, its agents, servants, employees, invitees, or lessees. A certificate of said policies of public liability and property insurance shall afford protection in minimum limits of liability of $500,000 for injury or death to any one person and $500,000 for injury or death to more than one person, and $100,000 with respect to property damage. All such insurance may be covered by a blanket policy of Grantee. Grantor reserves the right to review the minimum amounts of insurance it requires once every five )5) years and adjust the minimums by written notice to Grantee to reflect the economic conditions at that time in order to provide reasonably adequate protection to the Grantor. 13. The rights conferred hereby shall be the privilege of Grantee only, and no assignment or transfer hereof shall be made, o other use be permitted than for the purpose stated herein without the prior written consent of Grantor. 14. Grantee agrees to promptly discharge (either by payment or the filing of a necessary bond or otherwise) any mechanics', materialman's or other liens as may be placed against the aforedescribed 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 furnished to or for Grantee. 15. If Grantee should fail to comply with and perform each and all of the terms, conditions and provisions herein contained which it is required toPerformhereunder, then, and in that event, the. Grantor shall have the following rights, which it may exercise at its sole discretion: -5- a. Grantor may enter and revest in itself title to the a£oredescribed premises as if this Easement had never been given. b. Grantor may institute any actions or proceedings, legal and/or equitable, for the enforcement of the terms and conditions of this Easement. Furthermore, in the event Grantee should abandon the use of said premises or any part thereof, or fail at any time to use the same for the stated purpose for a continuous period of one (1( year, the right hereby given .shall cease to the extent of the use so abandoned or discontinued, and Grantor shall at once have the right, in addition to but not in qualification of the rights herein reserved, to resume exclusive possession of said premises, or the part thereof the use of which is so discontinued or abandoned. In addition, in the event Grantee fails to exercise its rights hereunder and construct the contemplated improvements within one (1) year from the date of execution of this Easement by the Grantor, the right hereby given shall cease and Grantor may enter and revest in itself title to the aforedescribed premises as if this Easement had never been given. Provided, however, that Grantee shall net be considered in breach of, or in default of, its obligations with respect to the completion of said improvements, or progress in respect thereto, in the event of enforced delay in the performance of such obligation due to unforeseeable causes beyond its control and without its fault or negligence. Finally, the parties agree that in the event this Easement is invalidated by a court of competent jurisdiction and Grantee has exhausted all rights of appeal, the Easement shall be deemed terminated. In the event of termination of this Easement under any circumstance set forth above, Grantee shall, unless the parties otherwise agree, remove all improvements from the premises and restore the same in a manner satisfactory to Grantor. If Grantee fails t0 so remove and restore within sixty (60) days after receipt of written notice from Grantor t0 do so, Grantor may d0 such work at the expense of Grantee. In that event, Grantee does forever release Grantor from all claims or demands which Grantee, its successors and assigns, may have against Grantor by reason or on account of any injury sustained to Grantee's premises, of any nature whatsoever, arising from the exercise of Grantor's rights of removal and restoration hereunder. Unless terminated for the reasons aforesaid, this Easement shall remain in full force and effect for as long as the improvements thereon remain in use and operation. -6- 16. 'Failure on the part of Grantor to complain of any action or non -action on the part of Grantee no matter how long. the - same may continue, shall never be deemed to be a waiver by. Kantor of any of its rights hereunder. 17. Any notice which either party desires or is required to give to the other in connection with this Easement shall be in writing, and shall be sent postage prepaid, certified mail, return receipt requested, as follows: If to Grantor: John W. Flynn, City Manager Bangor .City Rall 73 Harlow Street Bangor, Maine 04401 If to Grantee: Donald T. Cohen, President 1912 Associates Development Corporation 115 Franklin Street Bangor, Maine 04401 Any party may modify the official or address upon written notification to the other party. 18. This Easement shall be binding upon the successors, tenants, lessees, licensees, and assigns of Grantor and Grantee for so long as it remains in full force and effect. IN WITNESS WHEREOF, the CITY OF BANGOR, GRANTOR herein, has caused this Easement to be executed, acknowledged, and delivered in its name and behalf by John W. Flynn, its City Manager, thereunto duly authorized, and the 1912 ASSOCIATES DEVELOPMENT CORPORATION, GRANTEE herein, has caused this Easement to be executed, acknowledged, and delivery accepted in its name and behalf by Donald T. Cohen, its President, thereunto duly authorized, as of the day and year first above written. CITY OF BANGOR By Witness John W. Flynn Its City Manager 1912 ASSOCIATES DEVELOPMENT CORPORATION Witness By Donald I. Cohen Its President _7_ STATE OF MAINE PENOBSCOT, as. 1983 Then personally appeared the above-named JOHN N. FLYNN, City Manager, and acknowledged the foregoing instrument to be his free act anddeed in his said capacity, and the free act and deed of said body corporate. - - Before me, Notary Public / Justice of the Peace STATE OF MAINE PENOBSCOT, as. 1, 1983 Then personally appeared .the above-named DONALD T. COHEN, President, and acknowledged the foregoing instrument to be his free act and deed in his said capacity, and the free act and deed of said body corporate. Before me, Notary Public / Justice of the Peace EXHIBIT A Note: The legal description has not been prepared because the Developer has not given the City Engineer sufficient plans to prepare a metes and bounds description. The Easement will occupy an area of approximately 11' x 1091.