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HomeMy WebLinkAbout8678RESOLUTION NO. 8678 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND THRIFTY PAYLESS, INC., A SUBSIDIARY OF RITE AID CORPORATION RELATING TO 29TH STREET IMPROVEMENTS BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement dated April 12, 1999 between Pueblo, a Municipal Corporation and Thrifty Payless, Inc., a subsidiary of Rite Aid Corporation relating to 29th Street Improvements, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3. This Resolution shall become effective upon final passage. ATTEST: r INTRODUCED April 12, 1999 By Al Gurule Councilperson APP D: " 14 X//.. �. P esident of the City Council (SEAL) AGREEMENT THIS AGREEMENT entered into as of April 12, 1999 between Pueblo, a municipal corporation (the "City ") and Thrifty Payless, Inc., a California corporation which is a subsidiary of Rite Aid Corporation (the "Rite Aid "), WITNESSETH: RECITALS A. Rite Aid is developing a project at the southeast corner of 29th Street and Elizabeth Street in Pueblo, Colorado (the "Project "). B. Rite Aid will complete certain on -site and off -site improvements in conjunction with the Project. C. The off -site improvements for the Project include the widening of 29th Street and associated improvements (the "29th Street Improvements ") to be completed in accordance with the approved traffic plan therefor are on file with the City (the "Traffic Plan "). D. The 29th Street Improvements located east of the centerline of Greenwood Street and right -of -way acquisition for such purpose (the "Land ") are hereby referred to as the "Easterly 29th Street Improvements." AGREEMENT In consideration of the foregoing Recitals, mutual covenants contained herein, and other good and valuable consideration the receipt and adequacy of which is acknowledged, City and Rite Aid agree as follows: 1. Construction of the 29th Street Improvements Rite Aid will construct and complete the 29th Street Improvements in accordance with the Traffic Plan and in compliance with City's standards. However, if (a) Rite Aid is unable after good faith and diligent efforts to acquire the Land for the Easterly 29th Street Improvements from the owners thereof at its expense, for an aggregate consideration of not more than the total budgeted for the Land acquisition in its Project Budget by October 1, 1999, or (b) the City is unable to obtain its $75,000 maximum share of the Easterly 29th Street Improvements and so notifies Rite Aid in writing on or before October 1, 1999 ( "City's Notice "), then and in either event, Rite Aid shall deposit with the City the sum of $75,000.00 (less the acquisition cost of the Land, if the Land has been acquired by Rite Aid) (the "Deposit ") and Rite Aid shall not thereafter be obligated to complete the Easterly 29th Street Improvements. 2. City's Requirements If Rite Aid acquires the Land and has not received City's Notice on or before October 1, 1999, and thereafter completes the Easterly 29th Street Improvements in accordance with the Traffic Plan and in compliance with City's standards, and conveys or causes to be conveyed to the City the Land as well as Rite Aid's other land located within the 29th Street right - of -way shown on the Traffic Plan ( "Rite Aid's Land "), City will reimburse Rite Aid in an amount equal to one -half of Rite Aid's documented cost of constructing the Easterly 29th Street Improvements (including Land acquisition) not to exceed $75,000.00. 3. Deposit The Deposit will be held and used by the City for the completion of the Easterly 29th Street Improvements in accordance with plans and specifications therefor approved by the City. If City has not so commenced or caused the commencement of the construction of the Easterly 29th Street Improvements by April 1, 2002, City will return the Deposit without interest to Rite Aid. 4. Rite Aid Land Upon completion of the 29th Street improvements located westerly of the centerline of Greenwood Street, Rite Aid will convey or cause to be conveyed to City Rite Aid's Land. 5. Completion All 29th Street Improvements constructed and installed by Rite Aid shall be deemed completed upon final approval thereof by the City's Director of Public Works. 6. Compliance With Applicable Law Rite Aid will comply with all applicable federal, state and City laws, ordinances, regulations and standards in effect at the time of final approval when fulfilling its obligations under this Agreement. 7. Permits and Approvals The City will approve the issuance of a building permit for the Project upon the full execution of this Agreement. If Rite Aid has made the Deposit with the City pursuant to paragraph 1 hereof, the City will not object to the issuance of a certificate of occupancy or other permits or approvals for the Project on the grounds that the Easterly 29th Street Improvements are not completed. 8. Authorization The City represents and warrants that the City's execution and performance of this Agreement is authorized by state law and by all necessary City ordinances. Rite Aid represents and warrants that Rite Aid's execution and performance of this Agreement is duly authorized by all necessary corporate action. 9. Miscellaneous 9.1 Time is of the essence hereof. This Agreement shall inure to the benefit of and shall be binding upon the City and Rite Aid and their respective successors and assigns. 9.2 This Agreement shall not be effectively amended, changed, modified or altered without the written consent of both parties. 9.3 This Agreement expresses the entire understandin of the parties and supersedes all prior dealings and commitments with respect to the subject matter of this Agreement. 9.4 In the event of any litigation arising out of this Agreement, the court shall -2- award to the prevailing party its costs and reasonable attorney fees. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado, and each party submits to such venue and to the jurisdiction of that Court. To the extent permitted by law, each party waives its right to a jury trial. 9.5 If any provision of this Agreement shalt be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 9.6 This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 9.7 This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. 9.8 Nothing in this Agreement, expressed or implied, is intended nor shall be construed to confer upon, or give to, any person or entity other than the City and Rite Aid any right, remedy or claim under or by reason of this Agreement or any covenant, condition or provision hereof, and all covenants, conditions, provisions and agreements contained in this Agreement by or on behalf of City or Rite Aid shall be for the exclusive and sole benefit of City and Rite Aid. 9.9 Whenever the approval or consent of City or Rite Aid is required under this Agreement, such consent or approval shall not be unreasonably withheld or delayed. IN WITNESS WHEREOF, the parties have executed this Agreement in Pueblo, Colorado on the day and year first above written. PUEB , A MUNICIP CORPORATION [SEAL] Attest: By ----�° City it r k e: President of the City Council [SEAL Attes Title: THRIFTY PAYLESS, INC. By OSEPN I NOTARIANNI, )R AUTHORIZED REPRESENMVE-