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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 14-215 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 14-215 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 (R1337046.1 55451-068086 ) 14-215 JUNE 23, 2014 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. (R1337046.1 55451-068086 ) 2 14-215 JUNE 23, 2014 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 (81337046.1 55451-068086 ) 14-215 JUNE 23, 2014 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 (81337046.1 55451-068086 ) 4 14-215 JUNE 23, 2014 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 f 81337046.1 55451-068086) 5 14-215 JUNE 23, 2014 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. {R1337046.1 55451-068086) 6 14-215 JUNE 23, 2014 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 (81337046.1 55451-068086) 7 14-215 JUNE 23, 2014 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 {R1337046.1 55451-068086 ) 8 14-215 JUNE 23, 2014 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 {R1337046.1 55451-068086 } 9 14-215 JUNE 23, 2014 EXHIBIT A {R1337046.1 55451-068086) 10 2*5 RAF YERS 014r O.C. 54 TAG SHEATHWO 3*YR. ASPHA4A.T4H*dQILE$ OVER GRACE ROOF V~ FLASHED 70 EXIST WO WALL 4,107 eoia" - -- - - - - --- - - - --- -- ---- -- 3 24 P.T, HEADER W 12d P.T. JOBT a W O.C. 2 P.T CRNIS BRACING — , ATTACK W I S*APSON WRONG TIE Wo P.T POST TYP WIDAW.POSTIM w Coflot FROST POST SAW CUT PAVEMENT Ir OL DRLLEO HOLE BAWLE W 1314 STONE 11HOOM MATCH EXIST. PAVIOMW .....,..__...._..._..._..-...I------4-,,.,.,......_.......;,..1--......_.. - 1. 1 I I I I LJ I I LJ LJ 4-.2X12 RAFTERS 01C O 34 TAG SHLIATKNO 31) YR. ASPHAULT SH&JOk" OVER GRACE FODW WRAP FLASHED TO EXISTING WALL 2�l { wmewP f gy`7777 �h"iB2?d y \ # i Mi fir✓'T } Ty 4' i1•`< "P K Y y Y9 aje 4 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 i a d A! 4`00'00— w, PROPOSED EXTERIOR 8TANOWELL PLAN PROPOSED EX1880R STAIRWELL ELEVATION PROPOSED EXTERIOR STAIRWELL DIAMONDS GENTLEMANS CLUB 190 HARLOW ST. BANGOR, ME