HomeMy WebLinkAbout2014-06-23 14-215 ORDERCOUNCIL ACTION
Item No. 14-215
Date: June 23, 2014
Item/Subject: Order, Authorizing Execution of Easement with CEL, LLC — 190 Harlow Street
Responsible Department: Legal
Commentary:
This Order will authorize the execution of a ten year easement between the City and CEL, LLC
for the purpose of the construction and maintenance of the stairs for ingress and egress. The
easement will also include a provision for early termination upon sixty days notice if the City
needs the area for a public street or parking purposes.
The City of Bangor is the owner of a right-of-way known as Haynes Court off Harlow Street
leading to the Lower Abbott Square parking lot. CEL, LLC is the owner of the land and building
located at 190 Harlow Street abutting the northerly sideline of the Haynes Court right-of-way.
CEL, LLC would like to construct stairs from the second level of its building on the Haynes Court
side of the building. This would enable them to provide another means of ingress and egress to
the second floor of its building. This should also reduce the number of patrons that exit and
enter the building through the Harlow Street side. The City has had complaints in the past
about the number of people in the parking lot on the Harlow Street side of the building at 190
Harlow and associated noise. Because the building at 190 Harlow Street is at the property line
along Haynes Court, CEL, LLC is in need of an easement from the City in order to construct the
stairs. This item was reviewed and recommended for approval at Business and Economic
Development Committee meeting of June 17, 2014.
Manager's Comments:
Associated Information:
Budget Approval:
Legal Approval:
Introduced for
Passage
First Reading
Referral
Department Head
COQ KY\, CZ (11�
City Manager
Page _ of _
Finance Director
City
Assigned to Councilor Durgin
CITY OF BANGOR
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JUNE 23, 2014
(TITLE.) ORDER, Authorizing Execution of Easement with CEL, LLC —190 Harlow Street
WHEREAS, the City of Bangor is the owner of a certain right-of-way known as Haynes Court off
Harlow Street; and
WHEREAS, CEL, LLC is the owner of the land and building located at 190 Harlow Street
abutting the northerly sideline of the Haynes Court right-of-way; and
WHEREAS, CEL, LLC would like an easement from the City of Bangor to provide another means
of ingress and egress to the second floor of its building; and
WHEREAS, said easement will provide a means of ingress and egress on the Haynes Court side
of the building and, in addition, will reduce the number of patrons that exit and enter the
building through the Harlow Street side.
By the City Coundl of the City of Bangor:
ORDERED,
That Catherine M. Conlow, City Manager, is authorized on behalf of the City of Bangor to
execute an easement with CEL, LLC in order for CEL, LLC to construct and maintain an exit and
entrance from the second floor of its building at 190 Harlow Street. Said easement shall be for
a period of ten years, with a provision for renewal, and with a provision for early termination
upon sixty days notice in the event the City of Bangor needs the easement area for public
street or public parking purposes. Said Easement shall be insubstantially the same form as
attached hereto and in a final form as approved by the City Solicitor or Assistant City Solicitor.
IN CITY COUNCIL
JUNE 23, 2014
PASSED
CITY ICLERK
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JUNE 23, 2014
EASEMENT
THIS EASEMENT is made and entered into this day of , 2014, 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 CEL, LLC (hereinafter referred to
as "Grantee") a Maine limited liability company with a principal place of business in Hampden,
County of Penobscot, State of Maine
WITNESSETH:
WHEREAS, Grantor is the owner of the Right -of -Way, so-called, originally laid out and
established by the Council of the City of Bangor on December 26, 1956. Reference may be had
to the City of Bangor Road Book Volume 4, Page 235, 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 190
Harlow Street, which property abuts the northerly right-of-way line of the Haynes Court Right-
of-way. Reference may be had to a Warranty Deed from Milewal, Inc. to CEL,LLC dated
February 4, 2005, recorded in the Penobscot County Registry of Deeds in Volume 9747, Page
295, for a more particular description of said CEL, LLC property; and
WHEREAS, Grantee proposes to excavate, construct, and erect an enclosed access area
on the southerly side of the existing building located on the premises for the purpose of
providing a means of ingress and egress from the building to Haynes Court with the further
purpose of reducing noise from patrons of the building's current tenant, Arayos, LLC audible to
surrounding properties; and
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WHEREAS, Grantee requires an easement from Grantor to allow for the location of said
access area within a portion of the Haynes Court 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 hereinafter set forth, the parties hereto, for themselves and their successors and
assigns, agree as follows:
1. Grantor does hereby grant to Grantee, subject to the terms and conditions
hereinafter set forth, an easement to construct, reconstruct, repair, maintain, use and occupy an
enclosed stairway 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 Right -of -Way of grantor, described as follows, to wit:
See Exhibit A attached hereto and incorporated herein by reference.
This easement shall be for a period of ten (10) years, unless otherwise terminated as
provided herein. In the event that Grantor shall desire to use the easement area for any public
purposes related to parking or public streets Grantor may terminate this easement upon sixty
days notice.
In the event that Grantee wishes to renew this Easement, Grantee shall notify Grantor, no
less than 90 days prior to the expiration of this easement, but no sooner than 180 days prior to the
expiration of this easement. In such event, the parties shall negotiate the terms and conditions of
any renewal.
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2. The following activities 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 foundation supports or footings for
stairways.
b. Construction and erection of a stairway.
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
Grantee's existing building located at or about 190 Harlow Street.
4. Grantor does not warrant title to the aforedescribed premises in which the
foregoing Easement is granted and does not undertake to defend the Grantee in the peaceable
enjoyment thereof.
5. No work shall be commenced by or on behalf of Grantee under this Agreement
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 Haynes Court 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 anyone else for
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compensation or damage. Grantee does forever release Grantor from all claims or 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 Haynes Court. 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.
7. 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.
8. 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 corporation(s) including
Grantor, or to the property of any person(s), firm(s), or corporation(s) including Grantor, arising
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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 expense 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 aforedescribed 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
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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 the time in order to provide
reasonably adequate protection to the Grantor.
13. Grantee agrees to promptly discharge (either by payment or the filing of a
necessary bond or otherwise) any mechanics', materialmen'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.
14. If Grantee should fail to comply with and perform each and all of the terms,
conditions and provisions herein contained which it is required to perform hereunder, then, and
in that event, the Grantor shall have the following rights, which it may exercise at its sole
discretion:
a. Grantor may enter and revest in itself title to the
aforedescribed 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.
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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 not 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 the 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 to so remove and
restore within sixty (60) days after receipt of written notice from Grantor to do so, Grantor may
do such work at the expense of Grantee. In that event, Grantee does forever release Grantor
from all claims or demands with Grantee, its successors and assigns, may have against Grantor
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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.
15. 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
Grantor of any of its rights hereunder.
16. Any notice which either part 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:
Catherine Conlow, City Manager
Bangor City Hall
73 Harlow Street
Bangor, Maine 04401
If to Grantee:
Patrick Brann, Member
CEL, LLC
262 Western Avenue
Hampden, Maine 04444
Any party may modify the official or address upon written notification to the other party.
17. 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 of Catherine
Conlow, its City Manager, thereunto duly authorized, and the CEL, LLC, GRANTEE herein, has
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caused this Easement to be executed, acknowledged, and delivery accepted in its limited liability
company name and behalf of Patrick Brann, its Member, thereunto duly authorized, as of the day
and first year above written.
Witness
STATE OF MAINE
PENOBSCOT, SS.
CITY OF BANGOR
Catherine Conlow
City Manager
Hereunto duly authorized
2014
Then personally appeared the above named Catherine Conlow, City Manager, and
acknowledged the foregoing instrument to be her free act and deed in her said capacity, and the
free act and deed of said body corporate.
Before me,
Witness
STATE OF MAINE
PENOBSCOT, SS.
Notary Public
CEL, LLC
Patrick Brann
Member
Hereunto duly authorized
2014
Then personally appeared the above named Patrick Brann, Member, and acknowledged
the foregoing instrument to be his free act and deed in his said capacity, and the free act and deed
of said limited liability company.
Before me,
Notary Public
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EXHIBIT A
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EXHIBIT A
Edmond J. Bearor
From: Scott [Scoft@scoftliberty.com]
Sent: Wednesday, May 14, 2014 5:57 PM
To: Edmond J. Bearor
Subject: Re: City of Bangor and CEL, LLC - Easement. See top photo
14-215
JUNE 23, 2014
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PROPOSED EXTERIOR 8TANOWELL PLAN
PROPOSED EX1880R STAIRWELL ELEVATION
PROPOSED EXTERIOR STAIRWELL
DIAMONDS GENTLEMANS CLUB
190 HARLOW ST. BANGOR, ME