HomeMy WebLinkAbout2011-06-27 11-224 ORDERItem No. 11 224 Dace: June n. 2011 Item/Subject ORDER, Directing the Ory Manager th Enter Into an Agreement Regarding the Wall Between 24 Central Street and 30 Central Street Responsible Department. Community and Economic Development The southern wall of Betsy and Zen Lundy's building located a<30 Central Street and home to the Central Street Farmhouse Is Jointly owned by the Lundy's and the City. This wall once also supported Me Zoldis building on the 24 Ceidml Street lot, now awned by the Cry. That building no longer exists, but the wall remains. - - As a result of Its ownership interest, the City bears some responsibility for maintenance of the wall. The Wndys building currently suffers from some water leakage in the basement along this wall, presumably due th deterioration of the wall. At a June meeting of the Finishes Committee, Committee members expressed interest in working with the W ndy's to fix and maintain the wall; however, the Committee wanted W ensure that the City retained future rights N use the wall for potential development. This Order would provide for two agreements between the Lundy's and the CIN that together would 1) allow the CIN W do the needed maintenance work, 2) p vice for an official party wall agreement between the City and the Lundy's, 3) retain the Citys right to construct a building W the Zoidis lot using the wall, and 4) provide for joint responsibility for maintenance of the wall from now on. Department Head Mdndger's COmmerltr: �J ( M CityManCy Man t ager Associated Information: Order, Agreements Finance Director Legal Approval: Solicitor x Passage _ First Reading Referral 11 `24 l � Assigned 0 Councilor _ Longa June 27, 2011 7�:9r! .e• I ` CITY OF BANGOR (TETLE.) ORDER, Directing the City Manager to Enter Into an Agreement Regarding the Wall Between 24 Central Street and 30 Central Street By the City Cod w// of the City ofBaton. ORDERED, THAT the Ory Manager is hereby directed to enter into an agreement with Elizabeth and Zeth Lundy for the City to perform maintenance work on the wall between 24 Cental Street and 30 Cental Street, for the City and the Lun lys to enter into a formal parry wall agreement preserving the right of the City to build on the 24 Central Street lot and for the City and the Lundys to be jointly responsible for the maintenance of the wall henceforth, said agreements W be in final from as approved by the Ory Schumer or Assistant Cry Soliator. i CITY WDDCIL June 27. 2011 �t�m N e and Seconded for Pase e zPed > I1— 26 CITY mm gr Directive the City Manaeer to Enter Into m Aereemevt Seeardlne the Wl between m Central Street a 30 Central Street i' 1 S?24 PARTY WALL AGREEMENT WITNESSETH WHEREAS, City of Bangor, a municipal corporation, duly Incorporated under the laws of the State of Maine, is Owner in fee of the following described real estate situated in Bangor, County of Penobscot, State of Maine, to wit: A certain lot or parcel of land situated on the northwesterly side of Central Street in said Bangor, being the same premises conveyed by Effie Zoidis and others to the City by their several deeds dated February 8 t lune 26, 1989 and recorded in the Penobscot County Registry of Deeds in Book 4515, Pages 345 through 361 (the "Zoidis Lot"l; WHEREAS, Elizabeth and Zeth Lundy are the owners in fee of the following described real estate situated in Bangor, County of Penobscot, State of Maine, to wit A certain lot or parcel of land situated on the northwesterly side of Central Street in said Bangor, being the same premises conveyed by Patricia Alcott to Zech Lundy and Elizabeth Lundy by a deed dated September 30, 2010 and recorded in the Penobscot County Registry of Deeds in Book 12269, Pages 223 through 224 (the "Lundy Lot"); WHEREAS, the wall situated on the northerly boundary of the Zoidis Lot and the southerly boundary of the Lundy Lot is a common wall between the two lots (the "Wail"l; WHEREAS, the Wall forms part of a building currently located on the Lundy Lot, and has in the past formed part of a building located on the Zoidis Lop WHEREAS, it is intended by the undersigned to create, in favor of each, an easement covering the Wall; NOW THEREFORE the undersigned, in order to protect each of the parties to this Agreement, their successors and assigns, hereby create the following easements on the aforementioned premises, to wit: 1. Party Wall Declaration. The Wall is hereby declared t0 be a party wall between the Zoidis Lot and the Lundy Lot. 2. Maintenance of Party Wall, The cost of maintaining the Wall shall be borne equally by the owners of the Zoidis Lot and the Lundy Lot, Page I of3 3. Damage to Party Wall. Unless the then owners of the Zoidis and Lundy Lots both elect not to repair or rebuild the Wall, in the event of damage or destruction of the Wall from any cause, other than the negligence of either party, the then owners shall, at joint expense, repair or rebuild the Wall, and each of the parties, their successors or assigns, shall have the right to the full use of the Wall so repaired or rebuilt. If either party shall neglect or refuse to pay their share, or all of the costs in the case of negligence, the other party may have the Wall repaired or rebuilt, and shall be entitled to have a mechanic's lien on the premises of the party so failing to pay for the amount of the defaulting party's share of the repair or replacement costs. 4. Easement. The Wall shall always remain in the same location as now exists, and each parry shall have a perpetual easement in that part of the premises on which the Wall is located, for party wall purposes. Neither parry shall alter or change the Wall in any manner, with the exception of Interior decoration or those changes reasonably necessary for the City or hs designee to erect a building on the Zoidis Lot Incorporating the Wall should the City so choose. If such a building is erected, the City will work with the owner to find a new method for providing reasonable fire safety for the inhabitants of the Lundy Lot. 5. Covenants Running With land. The easements hereby created are and shall be perpetual and construed as covenants running with the land and each and every person accepting a deed shall be deemed to accept said deed thereby consenting and agreeing to be bound by the covenants herein contained to the same extent as if they had signed this instrument. Page 2 of 3 Dated this_ day of ,2011. In the presence of City of Bangor Witness State of Maine Penobscot, ss Catherine M. Conlow City Manager Elizabeth Lundy Zeth Wndy 11 024 Then personally appeared the above-named Catherine M. Conlow, City Manager, and acknowledged the foregoing to be her free act and deed In her said capacity, and the free ad and deed of said body corporate. Before me, Notary Public/Attomey at law Printed Name: Commission expires: Page 3 of 3 V 229 AGREEMENT This Agreement is executed this day of 2011, by and between the City of Bangor (the "City"), a Maine municipal corporation, and Elizabeth and Zeth W ndy (the "Owners'), owners of the property at 30 Central Street in the City of Bangor. WITNESSETH WHEREAS, the City owns a vacant lot of land at 24 Central Street in the Chy of Bangor, which lies adjacent to the Owners' property at 30 Central Street; WHEREAS, a wall runs along the property line between 24 Central Street and 30 Central Street (the "Wali"(; WHEREAS, the City wishes to perform maintenance work on the Wall in an effort to prevent water from entering the building at 30 Central Street (the "Work"); and WHEREAS, both the City and the Owners wish to enter into a separate agreement for the future maintenance and repair of the Wall; NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows: I. The City agrees to have the Work undertaken and completed by a competent local contractor in accordance with the specifications attached hereto as Exhibit A. 11. The City agrees to contract and pay for the Work. III. The Owners consent to the Work being done in accordance with the aforementioned specifications, and grant permission for any entry on their property at 30 Central Street which may be reasonably necessary for the completion of the work. IV. After the Work has been completed, the City and the Owners agree to enter into separate Party Wall Agreement. This Party Wall Agreement shall be in the form of the document attached hereto as Exhibit A, unless both parties agree to changes to the Parry Wall Agreement. The Party Wall Agreement shall survive the termination of this Agreement. V. The Owners may enter into a separate agreement with the aforementioned contractor or with another contractor for the installation of a balcony attached to the Wall, so long as the Owners pay for all costs associated with the installation of said balcony, including any additional costs to perform the Work that result from the installation of the balcony. Page 1 of 3 11 224 VI. The City agrees that (1) any exercise of the rights herein granted to it shall be conducted in the least intrusive manner predicable, and that any excavation, installation, construction, repair, or maintenance activities pursuant to this Agreement shall be done in a good and workmanlike manner under the supervision of the City Engineer or his designee(s), and that (2) the City shall exercise due care in the exercise of the rights granted hereunder so as to minimize the disturbance of any structures or Improvements located at 30 Central Street and shall promptly repair any damage to such structures or improvements arising from the exercise of the rights granted hereunder. VII. Failure on the part of either party to complain of any action or nonaction on the part of the other, no matter how long the same may continue, shall never be deemed to be a waiver by either part of any of the other's rights hereunder. It is covenanted and agreed that no waiver at any time of any of the provisions hereof by either party shall be construed as a waiver of any of the other provisions hereunder, and that a waiver at any time of any of the provisions hereof shall not be construed at any subsequent time as a waiver of the same provisions. The approval by either party to or of any action by the other requiring consent or approval shall not be deemed to waive the required consent or approval of any subsequent or similar action by either party. VIIL Invalidity or unenforceability of any provision of this Agreement, in whole or in part, shall not affect the validity or enforceability of any other provision of this Agreement. I%. Nothing contained herein shall be deemed or construed by the parties hereto or by any third party as creating the relationship of principle and agent or of partnership or of joint venture between the parties hereto. X. Except for the aforementioned Party Wall Agreement, the commitments outlined in this Agreement shall be completed by and this Agreement shall terminate on December 31, 2031, unless the City and the Owners agree in writing to emend this Agreement. %I. This Agreement shall be governed exclusively by the provisions hereof and by the laws of the State of Maine, as the same may from time to time exist. Page 2 of 3 11 224 IN WITNESS WHEREOF this Agreement has been executed, sealed, and delivered as of the day and year first written above. CITY OF BANGOR Witness Witness By: Catherine Conlow Its: City Manager OWNERS By: Elizabeth Lundy Witness By: Zeth