TOWNSHIP OF LOWER MERION Building & Planning Department

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Alicia Lane
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1 Exhibit C TOWNSHIP OF LOWER MERION Building & Planning Department MEMORANDUM TO: Douglas S. Cleland, Township Manager FROM: Robert E. Duncan, Director of Building & Planning SUBJECT: 11 East Athens Avenue Easement Request DATE: August 31, 2011 Earlier this year, the Board approved a temporary ingress/egress easement authorizing the occupants of the property at 11 E. Athens Avenue, Ardmore to use Township property known as Municipal Parking Lot #20, also known as Trolley Way, for ingress and egress. This approval included a condition that the final easement language must be brought back to the Board for final approval. The final draft of this easement has been reviewed by the Township Solicitor and a copy is attached. A brief summary of recent activity associated with the Athens Avenue property is listed below. The property owner obtained land development approval from the Board to construct a 33 unit condominium building on the property in July The plan included the preservation and conversion of an adjacent apartment building to an affordable low income apartment building. The land development approval also included a permanent easement to permit egress from an on-site parking garage onto Municipal Parking Lot #20/Trolley Way. Trolley Way is a public permit parking lot. The development project has been on hold due to the lack of available financing for developments with a condominium form of ownership. The owner would like to remove the existing driveway that leads to the rear parking lot of the existing office building and install a new driveway ingress/egress that would be accessed from Trolley Way. They seek a temporary easement to permit the installation of this new driveway. The existing driveway serving this property is immediately adjacent to the building and is within a few feet of the intersection of Trolley Way and East Athens Avenue. The site distance exiting this driveway is poor due to the building façade being so close to Athens Avenue and the driveway location immediately adjacent to the building. The driveway ingress and egress located a few feet from the exit of Trolley Way is also a concern because it does not meet current standards for a driveway s proximity to an intersection. The existing driveway will be converted from impervious surface to pervious surface containing grass and small shrubs. A new driveway will be installed to connect the rear private parking lot to Trolley Way. Two parking spaces on Trolley Way will be lost to accommodate this driveway.

2 Exhibit C The easement agreement will establish a temporary easement for a period of one year with further one year extensions, if approved by both parties. The Township will have the right to terminate the agreement subject to 90 days notice. The applicant is offering the items listed below for this temporary easement. Restripe the parking spaces on Trolley Way to replace the lost parking spaces. Provide the off site plantings required by the land development conditions now rather than waiting until the start of the development project. The value of the trees required to meet this condition is approximately $2,500. Reimburse the Township for any legal expenses required to prepare or review the agreement. The other benefit to the Township that does not have a monetary value but does have a quality of life value is the elimination of a driveway that does not meet today s standards and the removal of impervious surface to be replaced with grass and shrubbery along the side of the building.

3 Exhibit C TEMPORARY DRIVEWAY EASEMENT AGREEMENT THIS TEMPORARY DRIVEWAY EASEMENT AGREEMENT ( Agreement ) is made as of this day of September, 2011 by and between the TOWNSHIP OF LOWER MERION, a Pennsylvania First-Class Township ( Grantor or Township ) and BALLYHAUNIS PARTNERS L.P., a Pennsylvania Limited Partnership ( Grantee ). BACKGROUND: WHEREAS, Grantor is the fee owner of certain real property known as Trolley Way, located along East Athens Avenue, Lower Merion Township, Montgomery County, Pennsylvania, being Block 5B, Unit # 713, parcel # , consisting of 16,500 sq.ft., more or less, as is more particularly described on Exhibit A attached hereto and made a part hereof (the Burdened Property ); and WHEREAS, Grantee is the fee owner of certain real property located adjacent to the Burdened Property and known as East Athens Avenue, Lower Merion Township, Montgomery County, Pennsylvania as more particularly described on Exhibit B attached hereto and made a part hereof (the Benefited Property ); and WHEREAS, as more particularly set forth in a July 21, 2009 letter from Christopher Leswing to Grantee, on July 15, 2009 the Township Board of Commissioners approved (subject to 66 conditions) Grantee s Preliminary Land Development Plan prepared by Momenee and Associates, Inc., dated April 11, 2008, last revised March 20, 2009, (the Approval ) showing the proposed redevelopment of the Benefitted Property including the construction of a five story building with an approximately 15,510 sq. ft. footprint containing 33 market-rate units on 11 E. Athens Avenue and the renovation of an existing four story brick apartment building containing 14 units for moderate-income families on 11 E. Athens Avenue (the Project ); and WHEREAS, during the course of the Approval the Parties agreed on the location and details of a temporary construction easement, to provide for the demolition of the existing building and the subsequent construction of the Project; and. WHEREAS, since the time of the July 15, 2009 Approval, the economic conditions have deteriorated to the point where the Grantee will be unable to start the Project in the foreseeable future but needs to temporarily relocate the existing parking lot access, to a location coincident with the temporary construction easement, to address concerns with safe ingress and egress to the Benefitted Property (the Temporary Improvements ); and WHEREAS, Grantee has determined that the said Temporary Improvements will require an easement on, over, upon, across, and in the Burdened Property; and

4 WHEREAS, Grantor is willing to grant a license to Grantee for access to the Benefitted Property in accordance with and subject to the terms hereof. NOW, THEREFORE, for One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, Grantor and Grantee agree as follows: 1. Background. The background section hereof is incorporated herein by reference and made apart hereof. 2. Temporary Construction Easement. Grantor hereby grants and conveys to Grantee, its successors and assigns, a temporary right and easement for construction purposes through that portion of the Burdened Property which is identified as the Temporary Construction Easement Area on the plan attached hereto as Exhibit C. The temporary construction easement shall be a license, and shall be of such duration as is necessary for Grantee to complete its intended work on the Benefited Property, or until ninety days following notice of termination of the license by the Grantor. Grantee shall be required, at its sole cost and expense, to erect and maintain temporary fencing or other similar barriers around the Temporary Construction Easement Area. Grantee shall provide at least 30 days prior written notice to Grantor of the anticipated date on which the temporary construction easement shall begin and shall keep Grantee reasonably advised as construction progresses. As required by Grantor, parking permits for any and all spaces lost on the Burdened Property during the construction phase of the Improvements shall be purchased by Grantee. The construction phase of the Improvements will not exceed two (2) months. 3. Temporary Driveway Easement. Grantor hereby grants and conveys to Grantee, its successors and assigns, a temporary right and easement for the purposes of vehicular egress over that part of the Burdened Property which is identified as the Access Easement Area on Exhibit D. Except for such driveway aprons and other improvements which may be shown on Exhibit D or any improvements which may be otherwise mandated by Grantor during construction, Grantee shall not install any improvements within the Access Easement Area without obtaining the prior written consent of Grantor. As required by Grantor, parking permits for all spaces lost on the Burdened Property during the term of the temporary easement shall be purchased by Grantee. Grantee shall maintain all improvements installed by Grantee (such as the driveway apron) in good and safe condition as directed by Grantor. 4. Trolley Way Restriping. Grantee shall pay all costs necessary to restripe the parking spaces on the Burdened Property so as to offset any parking spaces that may be lost as a result of this Temporary Driveway Easement. All work to be completed in accordance with the conditions of the Approval. 2

5 5. Landscaping. At the execution of this Easement Agreement; Grantee will donate Seven (7) evergreen trees and ten (10) evergreen shrubs to Lower Merion Township for planting at a Township Park. Grantor agrees that this donation will satisfy Condition #36 of the Approval. 6..Mechanics' Liens. Grantee shall defend, indemnify and hold Grantor harmless from and against any and all damages, actions, suits, demands, costs, expenses, judgments, claims, causes of action, liabilities and indebtedness of any kind or nature whatsoever, including attorney's fees and court costs, arising out of or in connection with any mechanics liens or similar liens or claims which arises or is alleged to arise out of any work performed by or at the request of Grantee. 7 Indemnification; Insurance. Grantee shall indemnify, protect and save harmless Grantor (and Grantor s engineer, Pennoni Associates, Inc.) from any and all claims, damages, suits, costs and expenses (including without limitation, attorney s fees and court costs) resulting from loss of life or property or from injury or damage to person or property (the foregoing, Claims ), to the extent caused by or arising out of the actions of Grantee, its guests, invitees, employees, agents or contractors in or about the Benefitted Property or the Burdened Property, including but not limited to any Claims arising out of or related to the exercise or enjoyment of the easement rights granted herein or the installation, use, repair, replacement or maintenance of any improvements permitted or required hereunder. During the course of construction, Grantee shall maintain commercial general liability insurance and name Grantor as an additional insured. 8. Miscellaneous. a. Binding Effect. This Agreement shall be binding upon, and shall inure to the benefit of the parties hereto and their executors, successors, administrators, personal representatives, successors and assigns. b. Recording. This Agreement shall NOT be recorded. c. Captions. The captions of the sections of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation and construction. d. Governing Law. This Agreement shall be construed, interpreted and applied in accordance with the laws of the Commonwealth of Pennsylvania. e. Amendment; Integration. This Agreement may not be altered, modified, amended or terminated unless by an instrument in writing duly executed by each of the parties then bound by this Agreement. This Agreement contains all of the agreements and understandings of the parties concerning the subject matter contained herein and supersede all prior oral or written agreements or understandings relating to the subject matter contained herein. 3

6 f. Severability. The provisions of this Agreement shall be deemed independent and severable, and the invalidity or unenforceability of any portion or portions thereof shall not affect the enforceability or validity of any other provision or portion thereof. h. Private Easements. Neither the grant of the easements hereunder, nor the use and enjoyment thereof pursuant to this Agreement, shall be deemed a dedication of any area or to any public use or in any way to create or confer on any member of the public any right to use or enjoy the same, or any estate therein. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the day and year first above written. GRANTOR: Witness/Attest: TOWNSHIP OF LOWER MERION By: Title: GRANTEE: BALLYHAUNIS PARTNERS L.P., a Pennsylvania Limited Partnership By:, its general partner By: Title: Approved as to form: Gilbert P. High, Jr, Solicitor for Lower Merion Township N:\Documents\5004\001\Easement Agreement v8.docn:\documents\5004\001\easement Agreement v7v8 Comparison.doc 4

7 COMMONWEALTH OF PENNSYLVANIA : : ss COUNTY OF MONTGOMERY : On this, the day of, 2011, before the undersigned officer, personally appeared ELIZABETH S. ROGAN, known to be or satisfactorily proven to be the President of the Board of Commissioners of the Township of Lower Merion, and as such President, being duly authorized to do so, executed the within instrument on behalf of the Township of Lower Merion for the purposes therein contained, and that it might be recorded as such. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public COMMONWEALTH OF PENNSYLVANIA : : ss COUNTY OF : On this, the day of, 2011, before the undersigned officer, personally appeared, known to be or satisfactorily proven to be the of, the general partner of Ballyhaunis Partners, L.P., a Pennsylvania limited partnership, and as such, being duly authorized to do so, executed the within instrument on behalf of such entity for the purposes therein contained, and that it might be recorded as such. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public 5

8 Exhibit C Exhibit A Burdened Property

9 Exhibit C Exhibit B Benefited Property

10 Exhibit C Exhibit C Plan Showing Temporary Construction Easement Area

11 Exhibit C Exhibit D Plan Showing Temporary Driveway Easement Areas

TOWNSHIP OF LOWER MERION Department of Public Works

EXHIBIT B TOWNSHIP OF LOWER MERION Department of Public Works MEMORANDUM TO: Douglas S. Cleland, Township Manager FROM: Donald K. Cannon, Director of Public Works SUBJECT: 1200 Farview Road Sanitary Sewer