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HomeMy WebLinkAbout07- Lowe's Vacancy Mitigation Agreement q' Eo2.~ ~b e.(erk fa 3o~ l ;\,30 'P Mo' 5cr771-/~o .Do~~ .".' ,".,.-. \, -'-'-)~ )'- "'''if ' 0\' \ _" I ,. .,-",", \ ' ....---" 11111111111' 11111111111 11111111"1111'1 ""111111111111 ~~3~r~~ ~A Ch~rlo_ttel'lill!;__Gal)at~n C,?_MTf'IISC 49.00 VACANCY MITIGATION AGREEMENT The parties to this Vacancy Mitigation Agreement ("Agreement") are Lowe's HIW, Inc., a Washington Corporation ("Owner") and the City of Bozeman, Montana ("City"). WHEREAS, the Owner received conditional use approval to modify the Saccoccia Planned Unit Development, (#Zw05128) to construct a large format retail store in exceed of 75,000 square feet on Lot 1 of the Saccoccia PUD, more particularly referred to as Tract 2B I of Certificate of Survey 1215G within the city limits of the City of Bozeman, Gallatin County, Montana; and WHEREAS, as a condition of the approval requires the Bozeman City Commission approve a detailed Renewal Plan, which addresses all of the criteria set forth in the Unified Development Ordinance ("UDO") Section 18.40.180D; and WHEREAS, on June 6, 2006, the Bozeman City Commission approved the Owner's Renewal Plan, which is entitled "Vacancy Mitigation Procedures for the Lowe's HIW, Inc. ("Lowe's") Building" and attached hereto as Exhibit A and incorporated by reference herein; and WHEREAS. the parties hereto agree that the Vacancy Mitigation Procedure may never be implemented and therefore, the parties cannot concretely estimate the costs of maintenance of the exterior of the building, parking lot and private drive. storm water system. outside lighting, landscaping and irrigation system for an unknown time in the future; and WHEREAS; in the unlikely event of penn anent vacation of the Lowe's building, the effectuation of the Vacancy Mitigation Plan and the Owner's inability to reasonably maintain the building and the lot, the Owner shall simultaneous to the execution of this Agreement pay the City of Bozeman $25,000 ensure that the City of Bozeman may maintain the exterior of the building, parking lot and private drive. storm water system. outside lighting. landscaping and irrigation system and regular removal of trash and litter; and IVACANCY MITIGATION AGREEMENT 11 " . IT t'-- <0 UJ .;:. ....... r- ~ a'" _ r- UJ og t'-- N !:::' NiD:::I Ol- N8':;!l iiiiiiiiiiiiii 0 ~o ~ ~ iiiiiiiiiiiiii -u === ~ iiiiiiiiiiiiii ~ ~'" ~o _u =<:: === :: ='" =~ ---< ~~ =, -'" iiiiiiiiiiiiii :: _..... =lL ~.., iiiiiiiiiiiiii ::::: -0 =--< iiiiiiiiiiiiii :u ~.r::. _U , . . WHEREAS, upon payment of the $25,000 to the City of Bozeman, the City shall then be fully financially secured for the maintenance of the exterior of the building, parking lot and private drive, storm water system, outside lighting, landscaping and irrigation system and regular removal of trash and litter and Owner shall have no additional monetary obligation pertaining to the Vacancy Mitigation Procedures; and WHEREAS, in order the secure and effectuate the terms of the Vacancy Mitigation Procedures for the Lowe's HIW, Inc. the City and the Owner enter into this Agreement. NOW THEREFORE BE IT RESOLVED, The Parties hereby agree as follows: 1. Incorporation of Recital: All recitals set forth above are incorporated in the body of this Agreement as ifset forth in full. 2. Effective Date: This Agreement shall be effective upon signature of the parties and the payment of funds to the City of Bozeman. 3. Attachments: The Attachments cited herein are hereby made a part of this Agreement. 4. Maintenance: The Owner agrees to maintain the exterior of the building and the parking lot and access drives in a good condition during any vacancy. Should Owner fail to maintain the exterior of building and parking lot and access drives in a good condition during a period of vacancy, the City of Bozeman may provide notice to the Owner, at the address provided below, of such failure and demand that such maintenance commence within the thirty (30) days from the date of Notice. Should Owner fail to commence said maintenance within 30 days after the Notice, then the City shall have the right to cause such maintenance to be completed utilizing the $25,000 payment or any portion thereof. The Owner and the City mutually warrant each to the other that the Vacancy Mitigation Procedure attached hereto and incorporated shall be in full force and effect until such time as the parties hereto amend, modify or revoke the same in writing after notice and an opportunity for the public to comment on any proposed amendment, modification or revocation. 5. Notices: Lowe's / Owner: Lowe's HIW, Inc. Box 1111 (Highway 268 East) North Wilkesboro, NC 28659 Attention: Property Management Dept. (REO) City of Bozeman: City of Bozeman P.O. Box 1230 (411 East Main) Bozeman, Montana 59771 Attention: City Manager IVACANCY MITIGATION AGREEMENT 21 a: ~ w lOt-- :: ('I') ... ,~ lO 0 g ~"'~ N;v~ 01- N~~ iiiiiiii Gl !!!!!!!!!!!!!!! ~ ~ - - iiiiiiii -0 -00 -i: -f- -l!: =0 _0 =<: -..... -.., ==== ~ -';G !!!!!!!!!!!!!!! Cl =, _III -...... -...... _..... =:E: -~ -.., -0 -...... =L. -.. -.<: ==== 0 . " 6. Attorney's Fees: Should either party be required to resort to litigation, arbitration or mediation to enforce the terms of this Agreement, the prevailing party, whether plaintiff or defendant, shall be entitled to costs, including reasonable attorney's fees and expert witness fees, from the opposing party. If the court, arbitrator or mediator awards relief to both parties, each shall bear its own costs in their entirety. . 7. Third Party RilZhts: No person or entity who is not party to this Agreement shall have any right of action under this Agreement. 8. Scope: The Agreement constitutes the entire agreement between the parties and no statement, promise or inducement that is not contained in this Agreement shall be binding on the parties. 9. AssilD1s: The benefits of this Agreement to the Owner and the City may not be assigned without the express written approval of the other party. Such approval may not be withheld unreasonably, but any unapproved assignment is void. 10. Severability: If any part, term or provision of this Agreement is held by the courts to be illegal, the illegality shall not affect the validity of any other part, term or provision, and the rights of the parties shall be construed as if the part, term or provision were never part of the Agreement. r-.. -+-~, Dated this t . day AII,~ \ dJ- of 2007. [signatures to follow] IVACANCY MITIGATION AGREEMENT 31 ..', -' a: t"" <0 U) t- :: f'I') ..... t~ UJ og t"" .... ~ Nw~ Ol- N~~ iiiiiiiiiiiii 0 !!!!!!!!!!!!!!! 0 iiiiiiiiiiiii ~ iiiiiiiiiiiii iiiiiiiiiiiii _u :== ~ ==== :E: -I- !!!!!!!!!!!!!!! E: :== 0 u ~: -~ ==== ~ -..... -.. -c> =, iiiiiiiiiiiii ~ iiiiiiiiiiiii ..... -'~ :==:E: !!!!!!!!!!!!!!! ., iiiiiiiiiiiiii :: -0 -..... =L -.. ~G OWNER Lowe's HIW, Inc. A Washington Corporation ,By: ~(~ - - ~t:-;DG~ry ~ya; . - - - l. c- " Senior v 1L:l:: Preslel13nt (1 "", " -- (n '\ ~\ A~Wd to: '..~_.~.. ~~ 1 \. ~..' .!) 0 ,.:.> \ 5 ~ By~: '''.~.n'! \. ......~I '-,) - ,', .1 =) '" c(~ "'~~ STATE OF Nb(~ ~rol,m) County of JJ:-t k LS ) On this ~ day of ~UY1L ,2007, before me, a Notazy Public in and for said State, personally appeared ~ rl.;( E. LJ 'Y a..:tf , to me personally known to the person described herein and who executed the foregoing instrument, who, being first duly sworn, stated that he/she is the S V'. Vi l-t!- R-e~'a.~ of Lowe's HIW, Inc. a Washington Corporation, and that he/she subscribed to the within instrument and acknowledged to me that he/she executed the smne on behalf of the corporation. ~rN.\~ Notary Public for the State of.. b (lo.,yo 111111 PrintedNam~'t~ N ,"Iii. YlV)Tt Residing at . d Kt' .~b D Y lJ , tJ rth. {krll hfl<. My commission expires: 10 -lo-ll'8 SHEILA H. VANNOY Notary Public North Carolina - Wilkes County , My Commission Expires 10-fo-o'6 Iv ACANCY MITIGATION AGREEMENT 41 a: I'" <0 10,... ;: tI') _ t- 10 og I'" '" ~ Nq;~ m__ N~~ iiiiiiiiiiiiiii '" !!!!!!!!!!!!!!! '" -~ iiiiiiiiiiiiiii iiiiiiiiiiiiiii -0 ==== ~ ->:: -f- ~:o;:: ~o _0 ~5 -~ _!! -~ =1 _Ill -.... -.... _.~ =:0;:: -! -~ -0 -.... =... -.. !!!!!!!!!!!!!!! .t:;; _0 City of Bozeman By: ~l7~' The City Manager -'1,1 t,' I . . , '" ~ ; ; . (~':t\ "M..: "..~ ~ I" , .:- ... ~ IJ J ~ '>..1,,_ ..... . '. ,. "'J . .~-lI /'.; ~...., : lV\ .!;,'. {i....>l~~~ \ l '!..: =.". ,~. ,r. ~ ~ "l.. ~.." j . t" I '., ~' ,'1. i III i f (J , '. ~ , 'to \ \\ 1.,.. , ~ I,: j ~....., ./ \" \ I<(,~?j," < "":' ~., ,~,,,.. , ~~..Io '''\o~ ~",' """..,.1,~ 't ' .4/;";~'j.:~It..... ' ~:.j \. I] ~~t: ~. . STATE OF MONTANA ) :ss. ) County of Gallatin On this ~ day of () J J /J., Lhl-j 2007, before, me, !p'e yndersigned, a Notary Public of the State of Montana, pers~d Chris ~ski, ~r of the City of Bozeman, known to me to be the person who executed the within instrument ~d acknowledged to me he executed the same, ~ (I ~~Dl. ~ r~ ~ , . ---J-'-- et~fo.<< tla..~ss,'r-.- IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written, \\\\\1111" J lilll; ~\\\\ (.:. (.~ B I !/II<'I/ :$'",\ ". l' ~ ~"I_ '.t..-?;::. 2!l.i.t. . .' ~-;::. 2:r:' 't{ '..'rlA'-z.~ -, .(, . c. - =*. -'- . :: :::: - SEA. .m ~c.n, L '*i ~~. ' ...... "'''1 . s- % ~" . . ' . . ~~~ ~"'I"" Of:' MO~~\\~ //1/1111111'111\1"" City Official Owner IVACANCY MITIGATION AGREEMENT 51 T III.~ .' ... ~, \. . Vacancy Mitigation Procedures for the Lowe's HIW, Inc. (ULowe's") Building In the event that the Lowe's building planned for Lot 1 (Tract 281, COS 1215G) should at any time (or times) after its initial occupation be permanently vacated by any occupant, the owner or owners or occupant thereof (as appropriate) shall implement the following building vacancy mitigation procedures: 1. The exterior of the building. associated parking lot and private drive, storm water system, outside lighting, landscaping and Irrigation system shall continue to be maintained, secured, repaired or replaced in the same manner as when the building was occupied. a: t'-- <.0 W t~::: M....~ wog t'-- '" ~ NQj~ m_ N~~ ~o !!!!!!!!!!!!!!! ", -~ !!!!!!!!!!!!!!! ~ -u === ~ _E -I- ~:E ;;;;;;;;; 0 _u =c: ~:;:; ='" -..... ;;;;;;;;; ..... ~~ =1 -'" -- -- --.... =E ~'" ~:: -0 ==== ~ -1 _u 2. All exterior business signs shall be removed and exterior building surfaces shall be repaired and repainted to provide a neat appearance within 90 days after the property becomes vacant. 3. Trash and litter shall be removed on a regular basis at least once a week. J 4. Should the building be permanently vacated by any occupant for a period longer than 6 months for any reason other than fire or some other casualty or a force majeure event, or alterations, remodeling, additions and/or similar construction activities, then the owner or owners or occupant of the building (as appropriate) shall thereafter implement with reasonable dispatch commercially reasonable efforts which are designed to cause the building to be reoccupied and devoted to any use or uses permitted in the Lowe's Planned Unit Development. 5. The owners of the building will look first for a buyer, lessee or user that desires the entire building for a use that is compatible with the PUD. The second strategy will be to demise the building for multi-tenant reuse or find a buyer or user that desires to demise the building for multi-tenant reuse. The Lowe's bUilding is of such a design and character that It may be demised into three functioning building units each served by a landscaped pedestrian corridor. Demising the space will require modifications to portions of the heating, lighting, ventilation and fire sprinkler system components to adapt the building to reuse. These modifications and adaptations are subject to building permit approval at the time of building reuse. 6. Every lot in the PUD, including the uses anticipated by this vacancy mitigation plan, shall be used only for retail and wholesale sales and service businesses and other uses allowed in 82 and M1 zoning districts, inCluding but not limited to retail and wholesale uses, service shops, financial institutions, offices, restaurants, convenience uses, hotels/motels, convention and meeting facilities, entertainment and recreational uses, health and exercise uses, wholesale storage and warehousing, technologylresearch uses, light manufacturing, and auto, boat, and recreational vehicle sales and service. 1 of 1 I' . . . . 7. All or a portion of Lot 1 may be used for any permitted use as allowed under the Article 111 USE RESTRICTIONS of the Easements, Covenants, Conditions and Restrictions (ECCR's) between Lowe's HIW, Inc. and Saccoccia lands II, LLC and Saccoccia Lands III, LLC. 8. If at some future time the owner of the home improvement building to be constructed on Lot 1 elects to demolish this building, the City of Bozeman through the site plan review process in force at that time, may approve an amended site plan which might accommodate multiple tenants or multiple buildings, subject however to the square footage limitations set forth under Paragraph (4) of this Section, the satisfaction of all applicable regulations under the Lowe's PUO, the Saccoccia PUD and the Development Guidelines and ECCR's in effect at the time such approval is sought and subject further t'-- ~ to requirements that that no new building be located closer to Sacco Way (a U) ~ private drive) than the former home improvement center building. Off-street ft'): ~ parking may be located closer to Sacco Way Avenue than the off~street ~ ~ ~ parking for the home Improvement center was located. 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