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£-
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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.
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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
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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:
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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.
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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.