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HomeMy WebLinkAbout2001-08-13 01-317 RESOLVEItem No. 01-317 Date: August 13. 2001 item/Subject: RESOLVE, Ratifying Execution and Delivery of Development Agreement with Sam's East, Inc -- Sam's Wholesale Club Expansion Project Responsible DeperbnenF Engineering/ Legal Commentary: Sam's Club Is In the process of expanding Its facility. This expansion requires Sam's Club W make certain office traffic improvements to the Haskell Road Intersection. This agreement is necessary to coordinate the City's Sylvan Road realignment shorts with Sam's Club's off-site traffic improvements. As the expansion Is well underway, time was of the essence in the execution of this Agreement Accordingly, this Resolve wtll ratify the actions of the Engineering and Legal Offices in completing this matter. Deparbnent lead M`ra.n.a.ge•r's Comments: fLrA&c, "QPAvxo�aVA,�,ogmA�y�l�m�� '�`Mvd. EMTC. c�-wKi [ye*Q+rd 04" Ra """R"' D,r„A �:W,4:.p�nv�p.P e.;: w T " I�1 �','M A,�dl�i %44 A = -ryy f.1/n lcdp .µ.Qg4,(-time O.wy� I"tQA dLW jDaj CRy Manager Associated Information: Agreement Budget Approval: Rnance Director Legal Approval solickor Introduced for Comment Agenda X Passage Firm Reading Page_.L_of 1i Referral 01-317 Asaiguea to couocilur Crawley, August 13, 2001 CITY OF BANGOR (TITLE.) Resolve, Ratifying Execution and Delivery of Development Agreement with Sam's East Inc. -- Sam's Wholesale Club Expansion Project By th CRy Comldl of the CRY of Bavrgiorr THAT the action of Edward A. Barrett, City Manager, In executing and delivering a Development Agreement dated July 30, 2001, between the City of Bangor and Sam's East IM., is hereby ratified and confirmed. A copy of said Instrument is attached W this Resolve and is incorporated by reference. civ moan ;ust.13-. 2001 # 01-31) 86501.08 (TRLE,) #atltylo8 vaecutim � Deuveu of Development Fgeeo t Hth Sa s 8aet. I=. - Sm's Wholeal Club Flpanefon Roject DEVELOPMENT AGREEMENT TRIS DEVELOPMENT AGREEMENT (the "Agreetnerf) is made and entered into this day of3o I v 2001 (the "Effecifve Dacey by and between the City of Bangor, Maine, a municipal corporation (••City') and Smn's Eas4 Me., an Arkansas corporation ("Sam's') RECITALS_ WHEREAS, Sam's owns property in Burger, Maine, upon which it has constructed and is operating a Sam's Wholesale Club; and WHEREAS, Sena's has obtained site plan approval to expand it stare hero 115,400 N- squme feet to 128,045 airtime beer and in connection therewith will be required to complete certain transportation improvements in the public right-of-way, and WHEREAS, the City currently has certain improvements, not related he the Sam's Club expansion, programmed for completion in the vicinity ofthe Sam's proposed improvements; and WHEREAS, the parties have agreed that it will promote the efficiency of construction and will be in the best interests of the traveling public to have the City complete both its own improvements and Scan's improvements, provided Sam's reimburses the City for Smn's share of the cost ofimprovements; and WHEREAS, the parties hereto deane to sen forth m writing the obligations end responsibilities of the parties with respect to the improvaaents. NOW, THEREFORE, in consideration of dice recitals set forth above and for other goad and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intended to belegdlybound hereby, thepardi s hereby agree as follows: 1. RECITALS. The above Recitalsaretiue, accurate and correct, and formamatedal part of this Agreement. 2. SCOPE OF WORK. A. A detailed Scope -of -Work, materiel, oanstruction responsibility, cost respoasbipry table (Exhibit A) for the Sam's traffic mitigation is attached end made no integral pmt of this egceoieat. In general, Sam's is respirable for the cost of in taffi g a traffic signal at EMTC Drive and Hogan Road, intrdlmg a coidmller and cabinet at Hogan Road end ML Hope Road, restriping of the intersection of Haskell Road mW Hogan Road, and 01-311 providing new signal detection equipment at suburban locations as noted on Exhibit A (the "Sam's Wo T Sam's will order end fanish w the City all signal aluipmeM supplied by Econohte Control Products, Anaheim, CA included in the Sam's Work. Sam's has agreed to pumbace vidm detection equipment for the locations listed on Exhibit A. B. The City is responsible for the cost of installing the vides detection systan, constraining the intascetion improvements at Haskell Road and for completing the roc igrwent of Sylvan Road (the'Uty's Work'). The City will also be responsible for constructing improvements and installing all equipment included in Sam's Werk and City's Wadi as set forth in paragraph 4 below. 3. DESIGN. Sam's, at its sole cast and expense, has prepared the Design Plans for the Sam's Work. By execvtim of this Agreement, the City bas approved the Design Plans. No furfoer modifications may be more to die Design Plans without vrtitten approval by Sam's and the City. 4. PERIDT['WG AND CONSTRUCTION. The patties agree that the City shall be responsible for all phases and/or portions of perninfieg and construction of the Smv's Work and the City's Work (collectively, the'Vork'), including, but not liminal to: (i) preparing my bid packages fa Work that is submttraaed to non - City enployms; (i) administering the bid process; (ii) selecting all sub-covaaatom, as raluired, to perform the Work; be) marring compliance with all local, state and/or fidxal pounding requirements; (v) supervising on-site mnstiuctim activities; (vi) ensuring that all contraction work is performed or substantial accordance with the Denga Plans, and in accordance with all other applicable federal, state and local laws, regulations, rules and ordinances; ant (vu) administering construction and payment of all sub-corrtrecta selatM by the City to perform the Work; (viii) ordering all equipment fa the Werk, except for the major signal equipment being provided by Sam's. 5. COST OF PERMITTING AND CONSTRUCTION. The parties agree that Sand s shall be responsible for paying a lump sum of Thirty Nine Thousand Five Hundred and No/100 Dollars ($39,500) for the pemntting and coastrucrion of Sam's Work as more particularly described In paragraph 2 above, (exmpt fa the est of installing the vidm detection system), Da. kpmnt Agrmaeu Bangs &oc 12, ,2001 2001 -2- 01-317 which includes all arobarges, handling fees sad administrative fees.. Within five (5) business days after notification of the Smn's Work equipment delivery to the City of Bangor, Sam's shall wire or deliver a check to the City for the Lump Sum mound of $39,500 The City shall hold the monies in escrow to drew upon for purposes of completing $e Sam's Work but shall not we the moues paid by Sam's for any purpose other than to pay for the Sam's Work. Sam's shall not be required to pay for any costa that exceed the Lump Sum amomt unless the City has submitted a change order to Sam's prior to incurring the additional cost and Sam's has approved the change order. 6. SATISFACTION OF OBLIGATIONS. `Ihe City agrees that upon Stan's paymetst of the amounts and forth in paragraph 5 herdn, Sinn's will have satisfied its transportation improveme n obligations raluired in order to obtain its certificate of occupancy for the expmtsion. 7. INCORPORATION OF LAWS, RDLES, AND POLICIES. This Agreaamt shall be read in comimction with and be subject to all existing and future federal, state, and local laws, rules and policies applicable to traffic and transportation engineering standards in my answer or form. S. DISCLAII[ERS; LUHTATIONS ON LIADD.ITY. This Agreement does not create any obligation or relationship such as a pta9wsh ip, joint venture or other similar legal relationship under the laws of any some or the federal Sovevrvent. Any cowaspondence, documentsorotharefer mm"pmtn 'mothersimilartamswilln bedeemedm alter,tanend or change the relationship between the parties hereto uNess were is a formal written agreement specifically detailing the rights, liabilities and obligations of the panties as to a new, specifically defined legal relationship. 9. NOTICES. All mticen and other communications required or permitted to he given hereunder shall be m writing and shall be mailed by certified or registered mail, postage prepaid, or by Federal Express, A rbome Express, or similar overnight delivery service, addressed as follows: Ifto City: John Hamer Assistant City Solicitor City of Import 73 Harlow Street Bangor, W 04901 With a Copy to: Deve4pmeat Agmmend Bmgor Sean's Ime 12, 2001 -3- lames D. Ring Director of Infiashuctme and Development Support CityofHangor 73 Harlow Street Bangor, ME 04401 If Sam's: Sam's East, Ina AT FI: Property Management -Maine 2001 S.E. W Steel Bmtomille, AR 72716-0550 WithaCopyw: Sam's Stores East, lnc. Atm: Reel Estate Counsel 2001 S.E. Ids Street Bunonvi de, AR'/2116-0550 Notice shall be doomed to have base given upon receipt. Refusal of delivery or undeliverable for any reason shall bedeemed receipt. 10. DEFAULT. Each of the parties hereto shall give the other party written notice of any alleged default hereunder and shall allow the defaulting party five (5) days from the date of its receipt of such notice within which m core any surto default Failure to cure any such default within the of entioned period shall constitute a breach of this Agreement. 11. RECORDATION. The parties hereto agree that m execrated copy of this Agreement and Exhibits attached hereto shall be recorded in the Public Records of Penobscot Comity, Maine 9 the expense of Sam's. This Agreanent shall be decreed temdnated and all obligations hereunder satisfied the earlier of the date upon which the Work is completed or December 31, 2002. 12. SEVERABE,TTY. lfmypartofthis Agreemmtisfoundinvalidamenforceable by my court, surly invalidity orutwMorceability shop not affect the other parts of Us Agreement if the rights and obligations of the partes contained therein are not materially prejudiced, and if the intercom of the parties can contimre to be effected. To that end, this Agreement is declared severable Dswlopmeo, Agreement Bangw Sam9 June 12, 2001 -0. 01-317 13. AUTHORITY TO EXECUTE AGREEMENT. The signature by any person to this Agreement shall be deemed a personal warrmty by that person that be has the fall power and authonry to bind any corpomtiom partnership, or any other business entity for which he purports or act hereunder. 14. TIME OF THE ESSENCE. Time is hereby declared of the essence to the lawful performance of the duties and obligations mvtaived in this Agreement. 15. ENTIRE AGREEMENT. This Agreavent contains the entre agreanerr of the parties, and all prior aammurucariom, and or wrihen, are without any force and effect as it is the specific intent of the parties that this Agreement alone set forth the teens on which the parries have mutually agreed Each party specifically agrees that it enters into this Agrcement based on its own understanding of the terrous hereof act does not rely, in whole or in part, on any interpretations or represm[ations of the other party. Each party agrees that this Agreernent is the result of good faith arms length negotiations. IG MODIFICATIONS/AMENDMENTS. No modification of this Agreement shall be valid or binding unless such modification is in writing, duly dined and signed by both patties. 17. CONSTRUCTION. The partes beano have read and fully understand the tams of this Agreement, and each bas had the opportunity to have this Agreement reviewed by its own counsel. 16. GOVERNING "W. This Agreement and the provisions contained herein Shall be construed, controlled, and interpreted according in the laws of the State of Maine. 19. BINDING EFFECT. The parties agree that this Agreement is solely for the benefit of and shall be binding upon the formal parties hereto and than respective authorized successors and assigns, and no tight or muse of action shall accuse upon or by reason hereof, to or fm the benefit of any third party net a part)' ro this Agreement or an authorized successor or assignee thereof. 30. FORCE MAJEURE. The City shall not be liable or responsible to Sam's by reason of the failum or inability to take any action its required to take or in comply with the rwluireuents unposed hereby (err any injury to Sam's or by those claiming through Sam's) which failure, inability or injury is caused directly or indirectly by force majaum as hereinafter sed forth. The term'Yorce majeunl' as employed herein shall mean acts of god, strikes, lockouts or other industrial diauntravce%acts of public enemies, war blockages, nods, acts of armed forces, militia, or Developman Agreemmr Bangor Sam's Jere 12, 2001 -5- public w@ority, epidanics, landslides, earthquakes, fires, storms, floods, or washouts, civil or military distmbmces and/orMlosims. 31. NOLW MINY. Sam'spaymmtofdmwsttoconshuctthe Workisnotintmded m create any privity of contract between the contractor selected b concoct the Work and Sam's, nor is it intended to give Smn's any interest in the improvemays that constitute the Work. The City shall indarmify, defend and hold Sam's hmmless from any disputes that may mise concerning the contract mai/or any claims by my party that might arise as a resdt of the wnshuction or use of the Work. Dev opmwt Ag'eemwt Bangor Sam's tum tl, 2001 -s W WITNESS WHEREOF, Sam's East, bac. and flee City of Bangor have executed or have caused this Agreement, wiN the named Exhibits attached, to be duly executed in several counterparts, each of which counterparts shall be considenal an original executed copy of this Agreement the day and year first abovewrittm. Signed, sealed and delivered in presence of. Sam's East, Inc. �Jr Signed: 'En+ Witness (1): t Name: Michael E. Gardner aylPwa S. Title: Assmant Vice President, Beal Fsrwe Print Name: Attest: Witness (2): �f3�CR--. Print Name: 1"^Es A. 4,e aW OF BANGOR �aC1...n\\aliF Signal:(�A�sN� Name: Edward A. Barrett Title: CityMonager, Cin, ofBangor bW AV T Print Name "Se u N+^ate O elopmmt Agrcemmt Bangor Svn•s June 12, 2001 -7- State of Arkansas County of Benton The foregoing was acknowledged before me this .2P `NY of 2001 by Michael E. Gardner As Assistant PrrcP wdent of Real &Awe of Sam's Real Estate Business Trust, Delaware business trust; on bebalf of the trust. He is personell kn me orbas predua (type of identificatiom with ID number and expiration dao) as Identification. awoy=AL ,,// "� ssionNumber: ON tName: XJWCO) J &AiSdA) XANSAS TY o[erypebtiq Seneof iiKK9A15NC e/,p9 y Commission Number:44/q Commission Expires:M�a 1 q State of Maine County ofPeoobaot Theforegoingwesecknowledgalbeforemed 60 dayof .T O,. .2001 by Edward A. Barrell as City Manger of fee City of Meager, onnbehalf`Ofthe City of�Bunton. He is pemonally known to me aH+esprndmeS" (type of identification, witblD mmdrer and expiration date) as identification. Siped: L41 Rini Name:'ERRt L_AREY Notary Publiq State of Maine at Large My Commission Number:1 ".:....'". Commission Expires: /aa/a3 TERRI L. COREY NOTARY PUBLIC MAINE same MY COMMISSION EXPIRES NUMBER A Ann BongormtA®eemenr Jum 12ow 12, 2001 -8- DL -3U CIT�YyOF�'N� Y (�V�iy�l /MHINE .,a.,.�,....... ��r. NDLIC SERVICES DEPANTM ENT— OPERATION and MAINTENANCE See.amDa,mV Arthur A block's, P.E., Duo AprU20,2001 Surly P.ngineering Associates P. 0. Box 113 Sorry, Maine 04694 Re: Off life Traffic Im n WCmcRJs associated with Seer-, Club expansion Noor Mike: We hero completed Its es0matee fai ifs values siftedim,Werants ft"ouvat with the IT she aef"iMrm nlmmrcquirMfnrthe Same Gubexpension. Sam's Clubwillbormponsiblefcv the fallowing aoNa in the an"noted: %fount hope and slogan' Tidal Estimate Intemannectut Ilaskell Signal Upgrade $24,950 $2,200 55,900 R4,00o 59.900 52450 $2,450 539,500 The Citywili perfbrm the work Agreed to end noted Ind, the "F.xhihn A' forthisproject. If you how any Lonnie" mrcecoiy; tWe miimale, plateau bring them to my attention at your earliest Opportunity. Sincerely, Q�M c Arthur A. Slncku P Director of Operations End Maimenance PC: 1. Ring R. Burke A. Larson EXHIBIT Y A Bk 7803 Pg183 %27824 01-317 StateofArkausm County of Benton The foregoing was acknowledged before me this day of 1.. _,, . 2001 by Michael E. Gardner as Assivaat rwe-President of Rea! Estate of Sam's Beal Estate Business Trust, Delaware business truss, on behalf of the trust. He is personally known to me or -has produced (type of identification, with M number and expiration date) as identification. OFFICIALSEAL tFROI. BENSON NOTA RRUJOLIO.ARKANBAB II// Print Name: >•S9QEu r/ BEdseni 0ENTONMUNTY COa11AIB81ON EAP. /fin -09 Notary Public, Stateof ARKIiA)S'FC My Commission Number:) IA Commission Expires: IYIG.x l 2eo9 StateofMaine County of Penobscot The foregoing was acknowledged before me thiy.;(�'day of 2001 by Edward A. Barrett tes Cily Manger of the City of Bangor, on behalf of the City of Bangor. He is personally known m me orhaoTNsa1%exe1- (type of identification, with M number and expiration date) as identification. Signed: —7—,em Z Z. ra)O17 D Lklnent Ag,eemeot Bmgor mm's June 13, 3001 Print Name: �aEE'�� Notary Public, State of Maine at Large My Commission Numbcn__,LV Commission Expires:��7o'r�J3 -8- TERRI L COREY NOTARY MY COMMIM10N UPEIS aCEMREa II, 8001 Pk 9803 Pg184 429024 cl 01-317 INI s. ri'aaioi NOLICSERVICEa DEPARTMENT-MERATIONeM MAINTENMICE ArNur A. &eckur, P.E.. Diracbr TEL. roynaa E22P W 20, 2001 Surry P.ngineering Aseoeiaten P,O.Eusll3 Sufty. Mame 04684 Re: off "to '"O'ne Imlerevments Asmuated wish SNa'a Club Lapan3um Ilw Mike: We hnvc completed the estimates for the LEOLM sippyl impruvumnnlr assoc ated with the uR' site uaffic imprmTments required fnrthe Same Club expansion, Snm'a Clubwdl be mpomiblc for the fcllowhig wits in the areas noted: an and Hisk$34,950 Haskell, Orerhead F_i t�ls ._._ ................_52,300 Moulrt hope and Ilogan' Intonannmm ttaskell55,900 $2,200 signal Upgrade $40000 Hu flood VWe0n,9W ......RM ..._.._..._ ...................... .6rleUiuo 57450 Total Estimate $3,450 539,500 The Chy will Perfottn the wmk agreed TO and actedundcrthe "F.xhihh A' farthispMicct. If yon have any questions wrxeranp Oda wdmule, please bring Iharn ID my attention at your earlier opportunity. sincerely, Arthur A. SmcMiR, PF. Dl=of ofOpaldons and Maintenanu PC: J. Mitts PeNOnBSWTE00NpTy.�MAn9e EXHIBIT R. Burke A, I.aRonroeees a ' A