HomeMy WebLinkAbout2004-12-27 05-43 ORDERItem No. 05-43
Date: December 2I 2004
Item/Subject: ORDER, Authorizing Execution of an Agreement to Provide an Easement to
Eastern Maine Healthcare- Union Street
Responsible Department: Legal
Commentary:
Eastern Maine Healthcare wishes to have a permanent easement across property of the City
located at 931 Union Street to provide a second means of ingress and egress to its Eastern
Maine Healthcare Mall on Union Street. The final design of the easement will be subject to the
approval of the City Engineer. The Agreement for the easement will provide for the demolition
of the former Army Reserve Center and installation of a traffic signal at the intersection of the
easement and Union Street. The traffic signal will also require the approval of the Mance
Department of Transportation. All costs associated with the easement will be home by Eastern
Maine Healthcare.
Department Heatl
Manager's Comments:
This has been reviewed and is recommended by the Business and Economic Development Commlltee.
This easement and associated traffic signal will address the traffic Flow and safety, Issue associated with
indimduals attempting to enter and leave Me Healthcare Mall's parking lot n a n `7 pv /
City Manager
Associated! Information:
Legal Approval:
Y Passage
First Reading
_ Referral
Finance Director
City Solidtor
Page-1—of 2
05-63
AGREEMENT ANO DECLARATION OF CROSS EASEMENTS
THIS AGREEMENT AND DECLARATION OF CROSS EASEMENTS (the
"Declaration') is created and established this L day of apt,& ,2005, by and
between CITY OF BAblGOR C Cit}o), a body polific and corporate and an
instrumentality and agency ofthe State of Maine organized and misting under the laws of
the State ofMaine, with a mailing address of 73 Barlow Street, Bangor, Maine 04401,
and EASTERN MAEvE HEALTHCARE SYSTEMS ( TMHS'), a Maine non-profit -
corporation organized and existing order the laws of the State of Maine and having an
office and mailing address at 43 Wltiting Bill Rued, Brewer, Maine 04412.
The background of this Declaration is m follows:
EMBS and City (individually, an "Owner" and together, the "Owacm') are the
present owners of the fee interest in contiguous parcels of land (collectively, the
"Properties') located in Bangor, Penobscot County, Maine, all as more parficularly
described add depicted on a certain plea Carded PROPFRIT OF'FxF CITY OF BANG02,
UNION STR6T, PLAN SHOWRJG PROP0SM TEASES AND E SR!ouNFAREpS, dated Morels
25, 2005, prepared by Ames ME C'Plad), which Plan is to be recorded in the Penobecia
County Registry of Deeds on an even or near date herewith, and a reduced copy of which
Plan is attached hereto and incorporated berem as ExhNit A;
EMHS is the present owner of the parcel of land designated on the Pled as the
Mall Parcel, which parcel is a portion of the land described in a deeds recorded W said
Registry of Dandle in Book 6279, Page 137; and Book 6368, Page 338;
City is the present owner of the Slager parcel designated on the Plan as Front Lot
and ]lack Lot, so-called, which parcel is described in a deed recorded in said Registry of
Deeds in Book 7252, Page 222;
The Owners by this Declamation wish to clarify, certain mutual rights of mems,
ingress, egress, utilities, drainage, Parking, aad other rights connected to the ownership,
occupation, and future development of their respective Properties. .
In order to accomplish these purposes, the Owners hereby subject their respective
Properties to the burdens and benefits described herein.
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05-43
A TTCLEI-DEFIMTTONS
Section LI-Definitioru. Whenever used in this Declaration, the following terms
shall havethe respective meanings m follows:
A. The word "successors' as used herein shall include, without limitation,
successors by merger, consolidation, reorganization, sale of all or subsmntially all of such
Owner's Physical assets, or othm form of orate, partnership or individual successim.
E. "Access Drives"shall mean those driveways providing ingess and egress
to and between the Properties and the public and private roadways depicted on the Plan as
betwem die Mall Parcel and the Front l t and the Back Lot.
C. 'Common Area" shall mem all fmways, exits, entrances, sidewalks,
retaining walls, landscaped areas, amessways and pedestrian malls or courts as depicted
on the Plan, exclusive of my buildings and their respective buck docks or receiving areas.
D. "In" with respect to art easement gmnted, created, and/or established"in"a
particulm area shall be deemed f mean, as the context mayra une,'In ; "'to ""m"
o "`tluough; "Lpoo; • ••across," awl/or'Lndec"
E. "Occupant" shall mem the Owners of my Properties or Parcels,their
awrtgagees and any other person from time to time legally mtitled to use and occupy my
portion or portions thereof antler a lease or other valid rights to possession as well as their
respective suluctlMt$ concessionaires or licensees.
F. "Pernunce" as used herein shall mean a1 Occupants as defined above, as
well as the officers, directors, employees, agents, coubactom, sub -contractors, customem,
patrons, visitors, licensees and invitees of an Occupant.
G. "Utility Lice" m used benne shall mesa all facilities for utility services
and stormwater drainage to, from, or around the Tecified prendses, including without
limitation, all wires, cables, poles, Pipelines, ditches, cahoots, canals, and conduits for
telephone, electricity, water, sewer, storm water drainage and gas.
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05-63
A TICLEH-EASEMENTS
The Owners herebygmn on each other and each to the other, their successors and
assigns, the following rights of way and easements (collectively, the'2asemer s"):
L Utility Easements
(A) The Owners acknowledge that the location and width of existing Utility
Lines on the Properties as of the data hermfis substantially as depicted on the
Plan. To Hseextent not manted or reserved by eeawents or other instruments of
mumd, the Owners hereby from to each other and each to the other, thea
successors and assigns, the right of way and easement to mountain, repair, replace,
remove, use and opemte any and all Utility Lines as either (1) depicted on the
Plan, or (2) existing on the Properties and in use by my of the Owners a of the
date of this L4claretion.
(B) Utility Lina may be relocated at the sole cost and expense of the Owner
holding the easement therefor (the `BaemeM HoldeP), Subject ro the prim
women approval of the Owner upon whose Property the Utility Lina are to be
relocated, such approval not to be unreasonably withheld, delayed or conditioned.
The easement area for such relocated Utility Lina "I be no larger than
whatever is reasonably, necessary to accommodate the Utility Line. Upon
completion of my material relocation of Utility Lina, the Easement Holder shall
provide to the other Owners an as -built survey of such relocated Utility Lina, a[
the apm re of the Easement Holder, provided however, relocations of Utility
Lines within existing moment areas will not require an aubuilt survey.
(C) Any Owner who is an EasernW Holder of a Utility Line easement
pursuant to the provisions of this Declaration shall pay all costs and expenses with
respect thereto mol shall cause all work in connecti n with mafnumence,/spar,
replacement, removal, use, operation or relocamn of the Utility Line (including
general clean-rp and proper surname and/or subsurface maturation to substantially
the condition that existed prior to any maintenance, repair, replacement, removal
or relocation) to be completed as quickly as possible and in a manna so as to
mwmiwintaferencewiththewcoftheburdened Propmty. Allcostsmd
expenses with resp=w maintenance, repair, replacement. removal, use,
operation or relocation of shared Utility Lina shall be apportioned by mutual
agreement between the Owners sharing such Utility Lina, provided that the costs
and expenses to relocate a sbared Utility five, which relocation is desired or
required by a single Owner, shall be tlm sole responsibility, of that Owner.
(D) Notwithstanding anything in this Declaration an the contrary, an Owner
owning a Property burdened by Utility Line easement shall have the right, when
necessary in said Owner's reasonable busineajudgment to permit use or
development of the affected Property, to require the relocation of my Utility Line
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05-43
at said Owner's sole cost and expense, provided such relocation shall not
materially interfere with or dimwsh utdity services to the Property servd by the
Utility Line and shall not reduce or unreasonably impair the usefulness or function
of such Utility line. An Owner requiring relocation of a Utility Lane pursuant to
this subparagraph shall give written notice m the Easement Holder at least sixty
(60) days print 0 the date upon which relocation must begin. Relocation of
Utility Lines Pursuant to this subparagraph shall be conducted in accordance with
the provisions of this Declaration.
2. Access Rtebts of Way. and Parkin
(A) Every Owner shall love, and each Property shall be and hereby m made
subject to, anon -exclusive right-of-way, aM easement for the passage of vehicles
over and across the Access Drives, parking areas arM private roadways on each
Property, as the same maybe from time an time consented and mainnined for
such use, and for the Passage and aaommodation of pedestrian over and across
the Acem Drives. Parking areas, Common Areas and private roadways on each
Property as the same may from time m time be constructed and maintained for
such use. Such easemem rights shill be subject to the following reservations of
each Owner, as well as atter provisions conmined in this Declaration:
(1) Except for situations specifically provided for in the following
subpamgtapbs, no fence or other barrier which would unreasonably
prevent or obstruct the passage of pedestrian or vehicular travel for the
proposes herein shall be crated car pandrted within or across the easement
areas; provided, however, fast the foregoing provision shall not prevent
the installation ofcanveruence facilities at each Owner's discretion (such
as mailboxes, public telephones, bunches or public transportation shelter;
which do sot unreasonably interfere with or obstruct access to such
Property), of landscaping, benas or planters, nor of limited curbing end
other forms of traffic controls;
(2) Each Owner hereby reserves the right, from time to time and on a
temporary or permanent basis, to change, modify, alta or relocate at its
own expense the Convnon Areas, Access Drives, parking areas or private
roadways on such Owner's own Property, provided that the charge,
modification, attention or relocation does n[ unreasonably hinder or
prohibit access to any atter Owner's Property;
(3) Each Owner reserves the right, in its sole discretion, to subdivide
or resubdivide the Owner's Properties, provided that such subdivision or
resubdivision does not adversely impact the other Owners rights under
this Dalaation and shall be made in accordance with all applicable laws,
rules and regulationa
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(4) Any Owner may close off my porton of its Property for such
reasonable period of time as maybe legally necessary, in the opinion of
such Owner's counsel, to prevent the acquisition of prescriptive rights by
anyone; provided, however, that prim to closing off any portion of an
Owner's Property, that Owner shall give written notice to each other
Owner of its intention to do so, and shall attempt to coordinate such
closing with each orb= Owner so that no unreasonable interference with
the passage ofpedestrians or vehicles shall occur.
(5) Any Owner may take action to exclude and restrain by reasonable
and lawful means, at such Owner's sale cost and expense, any non-
' Permittee from dive use and/or occupancy of its Property.
(R) Each Owns hereby grants to each other lhmer,anon-exclusive easement
nor the parking of vehicles in and on the puking areas on such Owner's Property,
respectively, as the same may be maintained from time to time for such were. The
patties hereby agree to cooperate on a good faint buns, as needed, to designate
appropriate locations for puking vehicles accessing the Property of other Owners.
3. Buffo Yards.Every Owner shall havq and each Property shall be and
bereby is made subject to, a non-exclusive moonset fm the installation, retention,
aintimsee ,operation, repair said replacement of such Buffer Yards, in conPmetion with
the other Owners, as maybe regained by the City of Bangor Ind Use Ordinance, as
amended, along the exterior boundaries of the Properties taken as a whole; m depicted on
the Plaa Each Owner shall beresponsible for the installation, retention, mainamenu,
oMICIam rd on uW replacement of such Buffer Yards as are required d approved
bwith
Cityo Bangonitsown Property, asuch development is carried out and approved by the
CiNofBargor Planing Board.
ARTICLEIH—CONSTRUMON MAMTENANCE REPAIR
AND REPLACEMENT
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Each Owner shall endeavor to maintain its Property and the improvements therron
in good condition, and in compliance with all applicable laws, roles, regulations,
orders, and ordinances ofgovemmevtel bodies and agencies and the provisions of
this Declaration.
2. Easements.
(A) EachOwrem as an Easement Holder hereander,shall also have anon -
exclusive easmnent for entry upon and for ingress and egress by persona,
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materials, equipment and vehicles over, on, across and through the Property on
which the easement is located,tothe extent reasonably necessary to permit the -
maintenance, repair removal and replacement of the Owner'a utilities, equipment,
facilities or fixtures within the area of the Easement.
(B) Each Owner shalt have the nght to trim, cut down and remove bushes and
trees within the ensernent areas, to the extent reasonably, necessary to the Owner's
use and enjoymeat of the mosuant.
(C) Notwithstanding my other provision of this Declaration to the contrary, all
cor4Mrction, maintenance, repair, replacement and use of the easement areas and
the facilities, improvements and equipment therein, and all other actions takm
pmaumn to this Declaration, shall be conducted in accordance with professionally
recogwred practices and standards and in compliance with all applicable local,
ends and federal laws, rules regulations and percum.
allCLEH-- MISCELLdNEOUS
I. Each Owner states to act N good faith in the implementation of this
Declaatim, to reasonably cooperate with each other Owaer hereunder, and to
take such actions and provide such approvals and cwsevts as are reasonably
cemary to permit each sinner to design and contract such improvements as
such Owner shall dam appropriate on its own Property, provided that nothing to
this Declaration shall require an Owner to consent to another Ovmer's
improvemens within the Properties depicter on the Plan if those improvements
would vneasormeblY uncross with thefimt Owner's typical business activities or
Property.
2. The easements granted by this Declaatma shall be binding on the Owners,
and all measures shall rw in favor of and inure to the benefit of the Besancon
Holder's Property and their respective successors, mortgages, tenants,
subtenants, beneficiaries, guests, invitees, and licenses.
3. This Declaration is not intended to supersede or terminate any misting
easements ofvened, covenants or conditions burdening or benefiting the
Properties, except to the extern that my misting easements of record ere
inconsistent herewith.
4. Neither Owner shall have at*, rights or obligations with respect to my
Easement set forth in this Declaration after that Owner is no longer an owner of
Property benefited or burdened by the easement.
5. This Declaration and the Plan may be amended solely by written
instrument exceuted by each of the parties hereto, their successors and/or assigns,
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which written instnunent or Plan amendment shell be recorded in the Penobscot
County Registry of Deeds.
6. This Declaration shall be governed by the laws of the State of Maine,
without reference to choice of law rules.
TO HAVE AND TO HOLD the same, together with all the privileges and
appurtenxces thereunto belonging, to the Owners, their successors and maps forever.
W WffNRSS WHEREOF, THE OWNERS have caused this Declaration to be
sigoedanlsealedthis /3', dayof QaY,L ,2005.
SYSTEMS
Witness fKAV4kaO�
ia President
CITY OF BANGOR
imess Edward A. Barrett
City Manager
StateofMaine
Penobscot, an zl.g� tI 2005
Then personally appeared the above�named Edward A. Barrett, City Manager, and
acknowledged the foregoing to be his fire act and deed in his said capacity, and the fix
set and deed of said body carports.
Before me,
NORMAN S. MEITMANN, IIIelf at law
li
NOTARY PUBLIC• MAINE Primed Name.
NYCBMMISSIONEXPAFSJANUARYP 2011 �rm mer:
SVFE.bnF BOM1hmlSlawBuildi edrcun M%Cm, wpm m 4.s7
05-43
StateofMaine
Penobscot, as I ty / / 3 2005
Then perennially appeared tied above-named4,a,4 ffe A AwS,
tT,*r I/ V12S ,ofBastern Maine Healthcare Systems and acknowledged the
foregoing to td his ion Gee W and deed in his said capacity, and the Gee act and deed of
said Eastern Maine Healthcare.
Bef me,
NBAyws,r Attanacyatt law
Tiofery-Pnbtie/Anamey at law
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05-49
AssignW aCouncilor a•Er xcmr neceaMr 27. 2004
CITY OF BANGOR
(TIRE.) ORDER, Authorizing Execution of Agreement to provhle an Easement to
Eastern Maine Healthcare — Union Street
WHEREAS, Eastern Maine Healthcare is the ovmer of property on Union Street known as the
Eastern Maine Healthcare Mall; and
WHEREAS, the CM of Bangor is the owner of abutting property at 931 Union Street; and
WHEREAS, Eastern Maine Healthowe would like an easement across the City of Bangor
property to provide a second means of ingress and egress to its property;
NOW, THEREFORE, BE IT ORDERED By THE CS COUNCIL OF THE Q OF M14GOR THAT
The City Manager is hereby authorized and directed, on behalf of the City of Bangor, a execute
an Agreement to provide a permanent easement to Eastern Maine HealUxam for Me purpose
of providing Ingress and egress to the Eastern Maine Healthcare Mall across property of the City
of Bangor located a[ 931 Union Street, Bangor. Said Agreement shall provide for access, the
design of which shall be subject to approval by the City of Bangor City Engineer, shall indude
the demolition of the former Amry Reserve Center and shall, subject to approval by the Maine
Department of Trdnsporation, include the installation of a traffic sign at the intersection of the
easement ant Union Street. Said Agreement stall be in a final form approved by the City
Solicitor or Assistant City Solicitor.
w CITT C cn
Oecemner 27, 2006
Notion Wade and seeooded
for Passage
Passed
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(mm) nntnoritioe �etntion of ner.enaoc
to Provide an Easement to Pdstera wine
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