HomeMy WebLinkAboutWal-Mart Real Estate Business Trust - Agreement to demolish at closure of project J 676 -Di
AGREEMENT
This Agreement is by and between Wal -Mart Real Estate Business Trust, a
Delaware business trust ( "Wal- Mart ") and the City of Yakima, Washington, a
Washington municipal corporation (the "City "). Wal -Mart has obtained zoning
approvals from the City for the future construction of a retail store at the intersection of
Nob Hill Boulevard and 64 Avenue in the City (City Project No. UAZO RZ #2 -04,
UAZO CL (2) #16 -04, and UAZO EC #6 -04) (the "Project "). Condition No. 3.8.1 of the
Development Agreement dated June 27, 2007 approving the Project requires Wal -Mart
make certain provisions for reuse or demolition of the Project building if the Project were
ever to close. The condition reads as follows:
Internal spaces will be structurally designed to allow conversion to smaller retail
spaces meeting International Building Code requirements, in the event of closure
of the Wal -Mart supercenter on the Property, unless the Director of Community
and Economic Development allows Wal -Mart to instead post a bond or deposit
funds sufficient to pay for the cost of removal of the building if it deteriorates or if
it remains vacant for a three -year period after closure.
This Agreement is intended to formalize the obligations of Wal -Mart under this
condition.
Therefore, in consideration of the issuance of the permits for the Project, and
other good and valuable consideration, the parties agree:
1. Affirmation of Obligation. Wal -Mart hereby affirms the obligation set
forth in Condition No. 3.8.1 of the Development Agreement. If closing of the Project
building were to occur, Wal -Mart shall either convert the internal spaces in the Project
building, as described in Section 2, below, to allow smaller retail spaces meeting
International Building Code requirements, or at the time Wal -Mart closes the Project
building, in accord with Section 3, below, Wal -Mart shall post a bond or deposit funds
sufficient to pay for the cost of removal of the building if it deteriorates or if it remains
vacant for a three -year period after closure, whichever shall first occur, all in accordance
with this Agreement. For purposes of this Agreement, "closure of the Project" or
"closing of the Project building" means that Wal -Mart, or its successor or assign, shall
have ceased commercial operations at, and occupancy of, the Project building, but does
not include temporary closure of the Project for purposes of repair, maintenance,
construction, reconstruction or renovation.
2. Conversion of Project Building. In the event of closure of the Project,
Wal -Mart may, at its election, submit to the City building plans to convert the Project
building to other uses, including but not limited to smaller retail spaces, meeting
International Building Code requirements (the "Building Conversion Plan "). Upon the
City's approval of the Building Conversion Plan, Wal -Mart shall implement the Building
Conversion Plan to final approval by the City.
3. Posting of Security. In the event of closure of the Project and Wal -Mart
does not submit to the City a Building Conversion Plan pursuant to Section 2 above, Wal-
Mart shall, no later than ninety (90) days following the date of such closure, post a bond,
deposit funds or provide other security deemed acceptable and adequate by the City (the
"Security "), in an amount sufficient to pay for the professionally estimated cost of
removal of the Project building. The Project building shall be removed if either (i) the
Project building remains vacant for a three -year period after such closure, or (ii) prior to
the expiration of the three -year period described in paragraph (i), the Project building
deteriorates to the extent that it is declared by the City to be a nuisance or hazard to
public health and safety (a "Nuisance Declaration "), whichever condition shall first
occur. Specifically with respect to subsection (ii) herein, a Nuisance Declaration shall be
issued pursuant to the code enforcement provisions of the Yakima Municipal Code, and
Wal -Mart shall have the right to appeal such Nuisance Declaration, as provided by the
Municipal Code. A Nuisance Declaration issued in accord with subparagraph (ii) shall
not become final and effective until Wal -Mart has exhausted all such appeals.
4. Release of Security. The Security shall be released if (i) Wal -Mart
submits and obtains approval of a Building Conversion Plan and fully performs the
obligations of conversion set forth in Section 2, above; (ii) if Wal -Mart, its successor or
assign, re- occupies the Project building prior to the expiration of the three year vacancy
as provided in paragraph 3(i); or (iii) if Wal -Mart corrects any requirements of a final
Nuisance Declaration determined through the process described in Section 3(ii), above.
5. Realizing on Security. If the City desires to realize on the Security
following the occurrence of one of the conditions specified in Section 3 above, the City
shall provide written notice to Wal -Mart of such intent, which notice shall specify a date
not sooner than one hundred twenty (120) days from the giving of such notice (the
"Remedy Period "), within which time Wal -Mart may either (i) commence the demolition
of the Project building, or (ii) if the City seeks to realize on the Security based on a
Nuisance Declaration which is final and effective, commence improvements to the
Project building to remedy the condition(s) which formed the basis for the Nuisance
Declaration (either affecting a "Cure "). If Wal -Mart commences a Cure within the
Remedy Period, and diligently prosecutes such demolition to completion with a result
acceptable and approved by the City, the City shall not be entitled to realize on the
Security. If Wal -Mart fails to commence a Cure within the Remedy Period, the City shall
be entitled to realize on the Security under any methods permitted by law.
6. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Washington.
7. Amendment. Any amendment to this Agreement must be approved by the
City and Wal -Mart.
8. Binding on Successors; Assignment; Enforcement. This Agreement shall
be binding upon and inure to the benefit of the successors and assigns of Wal -Mart and
the City.
9. Time Is of the Essence. Time is of the essence of this Agreement and
every provision hereof.
10. Integration. This Agreement shall not supersede or replace any of the
provisions of the Wal -Mart Development Agreement, which remains in full force and
effect. Collectively, said Agreement and this Agreement represent the entire agreement
of the parties to this Agreement.
11. No Third Party Beneficiary. This Agreement is made and entered into for
the sole protection and benefit of the parties, their successors and assigns. No other
person shall have any right of action based upon any provision of this Agreement.
12. Notice. All communications, notices and demands of any kind which a
party under this Agreement is required by this Agreement or desires to give to any other
party shall be in writing and either (i) delivered personally, (ii) sent by facsimile
transmission with an additional copy mailed first class, or (iii) deposited in the U.S. mail,
certified mail postage prepaid, return receipt requested, and addressed as follows:
If to Wal -Mart: WAL -MART STORES, INC.
2001 SE 10th Street
Bentonville, AR 72716 -0550
Attn: Kevin Sweet
Telephone: (479) 204 -0064
Facsimile: (479) 273 -8380
With a copy to McCullough Hill PS
701 5 Avenue, Suite 7220
Seattle, WA 98104
Attn: Jack McCullough
Telephone: (206) 812 -3388
Fascimile: (206) 812 -3389
If to the City CITY OF YAKIMA
Director of Community and Economic
Development
129 N 2nd Street
Yakima WA 98901
With a copy to: CITY OF YAKIMA
City Clerk
129 N 2nd Street
Yakima, WA 98901
Notice by hand delivery or facsimile shall be effective upon receipt. If deposited in the
mail, notice shall be deemed delivered 48 hours after deposited. Any party at any time by
notice to the other party may designate a different address or person to which such notice
or communication shall be given.
IN WITNESS WHEREOF, this Agreement has been entered into among the City
and Wal -Mart as of the day of October, 2008.
WAL -MART REAL ESTATE BUSINESS TRUST
a Delaware corporation
OCT 2 2 200
B • JcR%ht1 E. C
Its: Regional Vice President
CITY OF YAKIMA,
a Washington municipal corporation
By: R. A. Zai s, J1`
Its: City Manager