HomeMy WebLinkAboutH3 Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Andy Epple, Planning Director
Chris Kukulski, City Manager
SUBJECT: Lowe's Renewal Plan, Z-05128
MEETING DATE: Monday,June 5, 2006
BACKGROUND: Lowe's Home Improvement Warehouse was granted approval by the
Commission for a store in excess of 75,000 square feet. The approval was through the PUD process
and was subject to 20 conditions and 27 code provisions. Lowe's wishes to proceed with Final Site
Plan approval. One of the requirements they must meet is adaptability for reuses and a renewal plan
as described in Sections 18.40.180.C.6 and 18.40.180.D, BMC. The City Commission must approve
these documents.
The applicant has submitted a draft Vacancy Mitigation Agreement, Vacancy Mitigation Procedures,
and a revision to covenants for consideration. Staff has considered the text and believes the
materials adequate to address the intent and letter of the ordinance requirements. The applicants
propose to guarantee performance of certain maintenance activities by cash payment. The funds will
be held by the City directly.
UNRESOLVED ISSUES: Does the City Commission accept these documents as satisfying the
requirements of Section 18.40.180.D,BMC?
RECOMMENDATION: The City Commission approve the Vacancy Mitigation Agreement,
Vacancy Mitigation Procedures, and revised covenants.
FISCAL EFFECTS: No direct impacts identified. There will be costs and revenues from the
development of the store.
ALTERNATIVES: As suggested by the City Commission.
Respectfully submitted,
Andrew Epple, Planning Director Chris Kukuls16, City Manager
Attachments: Applicant's Submitted Material
Report compiled on May 31, 2006
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, (#Z-05128)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 2131 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 permanent vacation of the Lowe's building, the effectuation of the
Vacancy Mitigation Plan and the Owner's inability to maintain the building and the parking lot and access
drives in good condition, the Owner shall simultaneous to the execution of this Agreement pay the City of
Bozeman $25,000 to 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
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
if set 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 on Lot 1 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, which must be in writing transmitted by registered mail return
receipt required or a nationally recognize overnight courier to the address specified below, of such failure
VACANCY MITIGATION AGREEMENT 1
and demand that such maintenance commence within the thirty(30) days from the Owner's receipt of
such Notice. Should Owner fail to commence said maintenance within 30 days after Owner's receipt of
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 HIM Inc.
Box1111
(Highway 268 East)
North Wilkesboro, NC 28659
Attention: Property Management Dept. (REO)
City of Bozeman: City of Bozeman
P.O. Box 1230
(211 East Main)
Bozeman, Montana 59715
Attention: City Manager
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 Rights: 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. Assigns: 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.
Dated this day of 200_.
City Official Owner
VACANCY MITIGATION AGREEMENT 2
Vacancy Mitigation Procedures for the Lowe's HIW, Inc. ("Lowe's") Building
In the event that the Lowe's building planned for Lot I (Tract 2BI, 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.
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.
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 took 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 B2 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, technology/research uses, light
manufacturing, and auto, boat, and recreational vehicle sales and service.
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7. All or a portion of Lot 1 may be used for any permitted use as allowed under
the Article III USE RESTRICTIONS of the Easements, Covenants, Conditions
and Restrictions (ECCR's) between Lowe's HIW, Inc. and Saccoccia Lands 11,
LLC and Saccoccia Lands 111, 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 PUD, the Saccoccia PUD and the Development Guidelines
and ECCR's in effect at the time such approval is sought and subject further
to requirements that that no new building be located closer to Sacco Way (a
private drive) than the former home improvement center building. Off-street
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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SECOND AMENDMENT TO
EASMENTS, COVENANTS, CONDITIONS and RESTRICTIONS
This SECOND AMENDMENT TO EASEMENTS, CONVENANTS, CONDITIONS
and RESTRICTIONS ("Second Amendment") is made this day of June 2006, by and
between Lowe's HIW, Inc. a Washington Corporation ("Lowe's"), Saccoccia Lands ll, LLC,
a Montana limited liability company ("Saccoccia II") and Saccoccia Lands III, LLC, a
Montana limited liability company("Saccoccia III")(the foregoing collectively referred to as
"Parties").
WHEREAS, Philip Saccoccia, Jr. recorded Easements, Covenants, Conditions and
Restrictions for the subject real property, described on Exhibit A, attached hereto and
incorporated by reference herein, which were recorded on February 9, 2004 in the office of
Gallatin County Clerk and Recorder as Document No. 2139990; and
WHEREAS, Lowe's, Saccoccia II and Saccoccia III entered into that certain
Easements, Covenants, Conditions and Restrictions ("ECC&Rs")dated October 21, 2005
and recorded on October 25, 2005 as Document No. 2207231 in the office of Gallatin
County Clerk and Recorder and the Parties, thereafter, entered into the First Amendment
to the Easements, Covenants, Conditions and Restrictions("1stAmended ECC&Rs")which
was recorded in the office of Gallatin County Clerk and Recorder as Document No.
2207232 on October 27, 2005.
WHEREAS, the Parties have entered into site development of Lot 1 of the
Saccoccia PUD, more particularly referred to as Tract 2131 of Certificate of Survey 1215G
for the construction of a large format retail store (in excess of 75,000 square feet) to be
occupied by Lowe's HIW, Inc. and operated as a Lowe's store ("Lowe's site"); and
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WHEREAS,the Parties, as part of the Lowe's site, agree to participate with the City
of Bozeman in a redevelopment plan ("Vacancy Mitigation Procedure for the Lowe's site"),
do hereby amend the previously recorded Easements, Covenants, Conditions and
Restrictions, as amended to comply with the approved Vacancy Mitigation Procedure for
Lowe's site.
NOW THEREFORE, the Parties, in good and valuable consideration of mutual
benefit and advantages accruing hereunder and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Upon the effectuation of the Vacancy Mitigation Procedure for the Lowe's site by
Lowe's and the City of Bozeman, Paragraph 5, Article III, then Easements, Covenants,
Conditions and Restrictions Sections 3.2 shall be amended to add a the following sentence
at the end of Section 3.2 "The Owner 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."
No further writing shall be required to give this Amendment full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Second Amendment to
the Easements, Covenants, Conditions and Restrictions on the day and date first written
above.
Lowe's HIW, Inc.
A Washington Corporation
By:
Its:
Attested to:
By:
Its:
STATE OF )
County of )
On this day of 2006, before me, a Notary Public in and for
said State, personally appeared , 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 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 same on behalf of the corporation.
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Notary Public for the State of
Printed Name:
Residing at ,
My commission expires:
SACCOCCIA LANDS III, LLC
A Montana limited liability company
By:
Its:
STATE OF MONTANA )
:ss.
County of Gallatin )
On this day of , 2006, before me, the undersigned, a Notary
Public of the State of Montana, personally appeared Philip Saccoccia, Jr., being the
of Saccoccia Lands III, LLC known to me to be the person who executed the
within instrument and acknowledged to me he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
as of the day and year first above written.
NOTARY PUBLIC for the State of Montana
Printed Name:
Residing at
My Commission expires
SACCOCCIA LANDS 11, LLC
A Montana limited liability company
By:
Its:
STATE OF MONTANA )
3
:ss.
County of Gallatin }
On this day of , 2006, before me, the undersigned, a Notary
Public of the State of Montana, personally appeared Philip Saccoccia, Jr., being the
of Saccoccia Lands II, LLC known to me to be the person who executed the
within instrument and acknowledged to me he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
as of the day and year first above written.
NOTARY PUBLIC for the State of Montana
Printed Name:
Residing at
My Commission expires
ACCEPTANCE BY THE CITY OF BOZEMAN:
As to all provisions and amendments, of which the City of Bozeman is a third party
beneficiary by virtue of the approval of the Saccoccia PUD, the City of Bozeman does
hereby acknowledge these amendments and accepts the same.
City of Bozeman
By:
The City Manager
Attested:
Clerk of the Commission
STATE OF MONTANA )
:ss.
County of Gallatin )
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On this day of , 2006, before me, the undersigned, a Notary
Public of the State of Montana, personally appeared Chris Kakulski, manger of the City of
Bozeman, known to me to be the person who executed the within instrument and
acknowledged to me he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
as of the day and year first above written.
NOTARY PUBLIC for the State of Montana
Printed Name:
Residing at
My Commission expires
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