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HomeMy WebLinkAbout90- IA for Kmart Corporation �z��rta" COrPoration IMPROVEMENTS AGREEMENT SE P ; 8 1990 FOR a DESIGN PIN- K mart CORPORATION THIS AGREEMENT is made and entered into this 18th day of September , 1990 , by and between K mart Corporation of Troy , Michigan , hereinafter called the "Developer" , and the City of Bozeman , a Municipal Corporation of the State of Montana, hereinafter called the "City" . WHEREAS, it is the intent and purpose of the Developer to meet the conditions of approval for Major Site Plan Application #Z-9007 allowing the construction of a 26 , 000 square foot addition to an existing retail store at 1126 North 7th Avenue on Lots 1 and 2 of Block 4 , Westlake ' s 4th Addition , in the City of Bozeman , Montana, and more commonly known as 1126 North 7th Avenue, Bozeman , Montana; and WHEREAS, it is the intent of the Developer to satisfy the conditions of approval for Major Site Plan Application #Z-9007 ; and WHEREAS, it is the intent and purpose of both the Developer and the City to hereby enter into an Agreement which will guarantee the full and satisfactory completion of the required improvements associates with the property hereinafter described ; and it is the further intent of this Agreement, and of the parties hereto, to satisfy the improvements guarantee requirements for the Major Site Plan . NOW, THEREFORE , in consideration of the mutual covenants and conditions contained herein , it is hereby agreed as follows: 1 . Property Description This Agreement pertains to, and includes those properties which are designated and identified as Lots 1 and 2 , Block 4, Westlake' s Fourth Addition , in the City of Bozeman , Montana, and more commonly known as 1126 North 7th Avenue , Bozeman , Montana. 2 . Imp_rovements This Agreement specifically includes the participation in the cost ( estimated to be about $10, 000 ) for city crews to pave North 5th Avenue from Tamarack to Hemlock with recycled pavement 1 millings . The applicant' s level of participation would be determined through post-paving traffic counts and would be limited to a maximum of forty percent (40%) of the project costs or Four Thousand Dollars ($4 ,000 . 00 ) whichever is less. This Agreement also includes the installation of all required parking and landscaping improvements , storm detention area, and other improvements as depicted on the approved Final Landscaping and Final Site Plans and itemized on the Estimated Cost of Improvements which is attached and made a part of this Agreement as "Exhibit B" . 3. Financial Guarantee, Time for Completion of Improvements The applicant's share of the paving costs as described above will be assessed and payable after post-paving traffic counts are determined by the Director of Public Service. In any case, the applicant' s share of the above-described paving costs will be payable to the City no later than 90 days after notification of assessment by the Director of Public Service . If occupancy is to occur prior to installation of all required landscaping improvements, the Developer shall submit to the City an irrevocable letter of credit or bond in the amount of 150 percent of the cost of all uninstalled improvements . Foreclosure proceedings shall be brought against the letter of credit or bond if the required improvements have not been completed within twelve months of the posting of the bond or letter of credit. 4 . Inspection Representatives of the City shall have the right to enter upon the property at any reasonable time in order to inspect it and to determine if the Developer is in compliance with this Agreement, and the Developer shall permit the City and its representatives to enter upon and inspect the property at any reasonable time. 5 . Default Time is of the essence of this Agreement. If the Developer shall default in or fail to fully perform any of its obligations in conformance with the time schedule under this Agreement, and such default or failure shall continue for a period of thirty ( 30 ) 2 days after written notice specifying the default is deposited in the United States mail addressed to the Developer at 3100 West Big Beaver Road , Troy , Michigan 48084 , or such other address as the Developer shall provide to the City from time to time , without being completely remedied , satisfied , and discharged , the City may elect to enforce any of the following specified remedies : A ) The City may , at its option , declare the financial guarantee to be forfeited and secure the complete construction and inspection of the improvements described herein . A . The City may , at its option , declare that the conditions of approval of the Major Site Plan Application have not been satisfied in violation of Section 18 . 52 of the Bozeman Zoning Code and thereby nullify said approval ; or B) The City may enforce any other remedy as provided by law. 6 . Warranty The Developer shall warrant against defects in these improvements for a period of one year from the date of their written acceptance by the Governing Body. 7 . Governing Law This Agreement shall be construed according to the laws of the State of Montana. 8 . Modifications or Alterations No modifications or amendment of this Agreement shall be valid , unless evidenced by a writing signed by the parties hereto. 9. Invalid Provision The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof , and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 3 10 . No Assignment It is expressly agreed that the Developer shall not assign this Agreement in whole, or in part, without prior written consent to City . 11 . Successors Except as provided in paragraph 10 , this Agreement shall be binding upon , enure to the benefit of , and be enforceable by the parties hereto and their respective heirs, successors and assigns. Mike Skiles , Vice President K mart Corporation STATE OF MICHIGAN ) :ss County of Oakland ) On this 18th day of September 1990 , before me , a Notary Public for the State of Michigan , personally appeared Mike Skiles, known to me to be the Vice President of K mart Corporation , and acknowledged to me that he executed the same for and on behalf of said Corporation . IN WITNESS WHEREOF , I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. Notary Public for the State of Michigan Residing at: Commission Expires : IRENE F.HAM ( SEAL ) NotWy Public Macomb County Michigan My commission expires 7124191 Acting in Oakland County THE CITY OF BOZEMAN Pfiillip J . or es Director of Public Service STATE OF MONTANA ) : ss County of Gallatin ) On the day of 1990 , before me , a Notary Public for the State of Montana, personally appeared Phillip J . Forbes , known to me to be the person described in and who executed the foregoing instrument as Director of Public Service of the City of Bozeman , whose name is subscribed to the within instrument and acknowledged to me that he executed the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year first written above. Notary Public for State of Montana Residing at: h`C _ Commission Expire (SEAL) 4 "EXHIBIT B" ESTIMATED COST FOR IMPROVEMENTS -..-- ----------------------------------------------------------------------------------------- DATE: R-in_gn PROJECT: K-Mart Expansion DEVELOPER: K-Mart Corporation, Troy, Michigan -------------------------------------------------------------------- ---------------------------- Item- Sq ,Ft . /Ln . Ft . Contractor Est . Cost Paving: Asphalt - Cutting, removal, etc. Per ragtnn PnginP_ ar g in F-St $ 4 , 087 . 50 Asphalt - paving, base, etc. " $12, 220 . 00 Concrete - curbs , waterways, etc. " " $17, 540 . 00 Sidewalks : Curbing: LnFt Landscape: See Final Approved Landscape Plan - Cashman Nursery $47 , 277 Landscape Protection: Garbage Enclosure : Exterior Lighting: STOW DETENTION-FACILITY Per Gaston Fngi neeri nq F.gt- _ S 5 , 956 . 00 Sewer Improvements : 50% of project Street Improvements : Paving of N. 5th between Tamarack and Hemlock costs or $5, 000 w is ever is less Pavement Demolition (included above) TOTAL: $92, 080 . 50 , �•S /39) Approved By City Engineering Office : Date ; -'?-90