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2010-24RESOLUTION 2010 - 24 COUNCILMEMBER ABBOTT INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS the City of Blair, Nebraska has been presented with a Developer's Agreement between the City of Blair, Nebraska, Hayden Place Development, LLC and Wal- Mart Real Estate Business Trust to enter into this Agreement to certify that any duties, obligations and restrictions created by all prior developer's agreement on the Wal -Mart property have been fulfilled and to memorialize any and all duties, obligations and restrictions with respect to the Wal -Mart Property from and after the Effective Date of this Agreement. WHEREAS, the terms and conditions of the Developer's Agreement are acceptable to the City of Blair, Nebraska. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF BLAIR, NEBRASKA, that the Developer's Agreement attached hereto, marked Exhibit "A" and by this reference made a part hereof as though fully set forth herein, which has been presented to the City Council, is hereby accepted and adopted by the City of Blair, Nebraska, and that the Mayor and the City Clerk of Blair, Nebraska, are hereby authorized and directed to execute said Developer's Agreement on behalf of the municipality. COUNCIL MEMBER WOLFF MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER JENSEN. UPON ROLL CALL, COUNCIL MEMBERS FANOELE, ABBOTT, WOLFF, JENSEN, KEPHART, STEWART, SHEPARD, CHRISTIANSEN VOTING "AYE ", AND COUNCIL MEMBERS NONE VOTING "NAY, THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 13TH DAY OF APRIL, 2010 CITY OF BLAIR, NEBRASKA ES E. REALPH, MAYOR STATE OF NEBRASKA ) ) :ss: WASHINGTON COUNTY ) BRENDA R. WHEELER, hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and adopted at a regular meeting of the Mayor and City Council of said City held on the 13 day of April, 2010. �i BRENDA R. V�HEELER, CITY CLERK Blair, NE Store No. 4568 -00 •� N - o a Z4 ZWi . This DEVELOPMENT AGREEMENT (and Certification of Prior Agreements) (this "Agreement ") is made and entered into as of this day of rl 1 , 2010 by and among THE CITY OF BLAIR, NEBRASKA, a Nebraska municipal corporation (the "City "), HAYDEN PLACE DEVELOPMENT, LLC, a Nebraska limited liability company ( "Developer ") and WAL -MART REAL ESTATE BUSINESS TRUST, a Delaware statutory trust ( "Wal- Mart "). The "Effective Date" of this Agreement is the date on which this Agreement is fully executed by all parties hereto, as indicated on the signature pages of this Agreement. PRELIMINARY STATEMENTS Developer and the City have entered into following agreements (collectively, the "Prior Agreements ") respecting the improvement and development of the real property more particularly described in Exhibit A attached hereto (the "Subdivision "): Developer's Agreement dated October 23, 2007, First Amendment to Developer's Agreement dated August 26, 2008, Developer Agreement dated March 10, 2009, Amended and Restated Developer Agreement dated May 12, 2009 and First Amendment to Amended and Restated Developer's Agreement dated March 23, 2010. Wal -Mart or its affiliate may acquire fee simple title to a portion of the Subdivision located generally north and east of the intersection of U.S. Highway 30 and Holly Street in Blair, Washington County, Nebraska, as more particularly described in Exhibit B attached hereto (the "Wal -Mart Property "). The Prior Agreements may create certain duties, obligations and restrictions upon the Wal -Mart Property and its owners and occupants. The parties desire to enter into this Agreement to certify that any duties, obligations and restrictions created by the Prior Agreements on the Wal -Mart Property have been fulfilled, and to memorialize any and all duties, obligations and restrictions with respect to the Wal -Mart Property from and after the Effective Date. NOW THEREFORE, the City and Wal -Mart, in consideration of the terms, covenants and conditions herein set forth, hereby agree as follows: 1. Termination and Release of Prior Agreements The City and Developer hereby (a) certify that any and all duties, obligations and restrictions upon the Wal -Mart Property and its owners and occupants required by the Prior Agreements as they relate to the Wal -Mart - Property have been fulfilled and (b) release Wal -Mart, its successors, assigns and the Wal -Mart Property from any and all restrictions, duties, claims and other encumbrance created by the' Prior Agreements. Wal -Mart may, at its sole option, cost and expense, record a memorandum or other short form of this Agreement, indexed against the Wal -Mart Property, evidencing the terms of this Agreement. 2. Public Improvements Wal -Mart may choose to construct, and operate a retail store or-stores (collectively, the "Private Improvements ") on the Wal -Mart Property. Developer and the City represent to Wal -Mart that all public and other improvements (collectively, the "Public Improvements ") needed for Wal -Mart to construct and operate the Private Improvements on the Wal-Mart Property and /or called for in the Prior Agreements have been constructed by the City or Developer without contribution by Wal -Mart or the owner of the Wal -Mart Property 4827 - 0722 - 8165.7 (except as otherwise set forth in any private agreement between Wal -Mart and Developer), and that neither the City nor Developer shall request or seek contribution from Wal -Mart or the Wal- Mart Property for the cost to construct or maintain the Public Improvements (except as otherwise set forth in any private agreement between Wal -Mart and Developer). The City has accepted the dedication of the Public Improvements and has agreed to maintain the same subsequent to the Effective Date. 3. City Approvals The City shall promptly approve all requests for building permits, certificates of occupancy and all other approvals lawfully required for Wal -Mart to construct and operate the Private Improvements, parking lot and related improvements upon the Wal -Mart Property and to obtain access to all abutting and appurtenant rights -of -way, in accordance with ordinances, building codes, rules and regulations promulgated by the City (collectively, the "City Approvals "). The City acknowledges that no approvals or permits are needed to construct or occupy the Private Improvements other than (a) a building permit and associated sub - permits and (b) the City's approval of a storm water management plan with respect to the Wal -Mart Property. The City agrees that it shall not unreasonably withhold any City permit or approval necessary to construct the Private Improvements, provided that Wal- Mart complies with all applicable laws, regulations, and ordinances of the City and pays all reasonable and customary permit and application fees. 4. Bypass Improvements The parties acknowledge that the City and /or the Nebraska Department of Roads may desire to construct a bypass (the "Bypass ") of U.S. Highway 30 to U.S. Highway 75 which passes to the north of the Wal -Mart Property along previously dedicated right -of -way. The Bypass may be funded by a combination of federal, State and local funding. The City agrees to take no action to collect from Wal -Mart, via special assessment or otherwise, any contribution from Wal -Mart for the cost to design, construct or maintain the Bypass, any intersection, traffic signal or any other roadway or other public improvements developed in connection therewith or otherwise. 5. No Contribution, Improvement District or Special Assessments The City and Developer waive the right to seek or collect from Wal -Mart or the Wal -Mart Property any contribution towards the design, construction or maintenance of the Public Improvements or the Bypass (except as otherwise set forth in any private agreement between Wal -Mart and Developer). The City represents that no special assessments have previously been certified or otherwise levied against the Wal -Mart Property. Neither the City nor Developer have created any improvement district arising out of or for the construction of any Public Improvements, the Bypass or any other improvements which include any portion of the Wal -Mart Property or otherwise create any liability to Wal -Mart or the Wal -Mart Property for any such improvements. 6. Outlot A . The fee owner of Lot 1, Hayden Place Replat One, Washington County, Nebraska -( "Lot 1") shall at all times own Outlot A, Hayden Place First Addition, Replat Two, Washington County, Nebraska ( "Outlot A ") and shall maintain Outlot A in accordance with all applicable laws at its sole cost and expense, which restrictions and duties shall bind the successors and assigns of Lot 1 and shall run with the land. 7. No Obligation to Construct or Operate The City hereby acknowledges that Wal -Mart as of the date hereof may not own fee title to the Wal -Mart Property. The City and Developer agree that none of the obligations of Wal -Mart set forth herein shall be binding against Wal -Mart until such time as Wal -Mart or its affiliates have acquired fee title to the Wal- Mart Property and obtained a building permit and all other governmental approvals necessary to legally construct and operate Wal- Mart's desired facilities on the Property. Notwithstanding anything to the contrary contained herein, the City agrees that the Wal -Mart Property may be 4827 - 0722 - 8165,7 2 used for any lawful purpose. It is expressly agreed that nothing contained in this Agreement shall be construed to contain a covenant, either expressed or implied, to either commence the construction of a building or the operation of a business or thereafter continuously operate a business on the Wal -Mart Property. The City and Developer recognize and agree that Wal -Mart may, at Wal- Mart's sole discretion, cease the operation of its business on the Wal -Mart Property and each party hereby waives any legal action for damages or for equitable relief resulting from such cessation of business activity by Wal -Mart. 8. No Agency or Partnership This Agreement is not intended and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture or association as among Developer, the City and Wal -Mart, nor between Developer, the City and any officer, employee, contractor or representative of Wal -Mart. No joint employment is intended or created by this Agreement for any purpose. Wal -Mart agrees to so inform its employees, agents, contractors and subcontractors who are involved in the implementation of or construction under this Agreement: 9. Governing Law This Agreement shall be construed under the laws of the State of Nebraska. 10. Choice of Forum Any legal action dispute that is filed in court relating to this agreement shall be limited to the court system of Washington County, Nebraska. 11. Entire Agreement This Agreement constitutes the entire agreement between the parties hereto. 12. Counterparts This Agreement may be executed in any number of identical counterparts, each of which for all purposes shall be deemed an original, and all of which shall constitute collectively one agreement. 13. Binding Effect This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 14. Further Assurances From time to time after the date hereof, without further consideration, the parties will (i) execute and deliver, or cause to be executed and delivered, such instruments to each other as may reasonably request in order to effectuate the intent of this Agreement and (ii) use reasonable good faith efforts to obtain any third -party consents reasonably necessary to effectuate the intent of this Agreement. 15. Severability The provisions of this Agreement shall be deemed severable. If any part of this Agreement shall be held invalid, illegal or unenforceable, the remainder shall remain in full force and effect, and such invalid, illegal or unenforceable provision shall be reformed by such court so as to give maximum legal effect to the intention of the parties as expressed therein. 16. Authorization Wal -Mart and Developer represent, covenant and warrant that the making and execution of this Agreement and all other documents and instruments required or related hereunder have been fully authorized by the necessary corporate action of such party and are valid, binding and enforceable obligations of such party in accordance with their respective terms. The City represents, covenants and warrants that the making and execution of this Agreement and all other documents and instruments required or related hereunder have been fully authorized by the necessary organizational action of the City and are valid, binding and enforceable obligations of the City in accordance with their respective terms. 4827 - 0722 - 8165.7 3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter set forth. THE CITY: ATTESTED TO BY: Brenda Wheeler, City Clerk 4827- 0722- 8165.7 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter set forth. F-DIAKIA 4827 - 0722 - 8165.7 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter set forth. Date:C WAL -MART: WAL -MART REAL ESTATE BUSINESS TRUST, a D laware statutory trust By: 46hn CI Ice resident - -Real te 4827 -0722- 8165.7 -..... 1. Lots 1, 2, 3, 4 and 10 and Outlot B, Hayden Place Replat One, a subdivision as surveyed, platted and recorded in Washington County, Nebraska, together with Lots 1, 2, 3, 5, 6 and 7 Hayden Place First Addition, Replat One, a subdivision as surveyed, platted and recorded in Washington County, Nebraska, together with Lot 8 and Outlot A, Hayden Place First Addition, Replat Two, a subdivision as surveyed, platted and recorded in Washington County, Nebraska, together with any private roadways not dedicated to the City of Blair, Nebraska 4827- 0722 - 8165.7 1 0_ Lot 1, Lot 10 and Outlot B, Hayden Place Replat One, a subdivision as surveyed, platted and recorded in Washington County, Nebraska, together with Outlot A, Hayden Place First Addition, Replat Two, a subdivision as surveyed, platted and recorded in Washington County, Nebraska. 4827 - 0722 - 8165.7 2 � t � wise of 6`1 9 April 22, 2010 Richard J. Rosenblatt Kutak Rock LLP The Omaha Building 1650 Farnam Street Omaha, NE 68102 -2186 RE: Developer's Agreement between City of Blair, Hayden Place Development, LLC and Wal -Mart Real Estate Business Trust Dear Mr. Rosenblatt, Enclosed are four (4) copies of the above agreement. Please have Wal -Mart sign all copies and return two (2) signed copies to my attention. Thank you for your assistance in this matter. Sinc ely, renda Wheeler City Clerk Enc 218 South 16th Street - Blair, Nebraska 68008 - 402 -426 -4191 - Fax 402 - 426 -4195 - E -mail cityofblair @cl.blair.ne.us K U TA K ROCK L L P ATLANTA CHICAGO THE OMAHA BUILDING DENVER 1650 FARNAM STREET DES MOINES FAYETTEVILLE OMAHA, NEBRASKA 68102 -2186 IRVINE KANSAS CITY 402- .346 -6000 LITTLE ROCK FACSIMILE 402- 346 -1148 LOS ANGELES OKLAHOMA CITY www.kutakrock.com PHILADELPHIA RICHMOND SCOTTSDALE RICHARD J. ROSENBLATT WASHINGTON richard .rosenblatt @kutakrock.com October 8, 2010 WICHITA VIA U.S. MAIL Brenda Wheeler Blair City Clerk 218 S. 16"' Street Blair, NE 68008 Re: Blair, NE (Store No. 4568 -00); fully executed original Development Agreement (and Certification of Prior Agreements) by and among the City of Blair, Nebraska, Hayden Place Development, LLC and Wal -Mart Real Estate Business Trust Dear Brenda: Enclosed please find one (1) fully executed Agreement for the above referenced matter per your request. If you have any questions, please feel free to contact me. Thank you, Brenda. Sincerely, Richard J. Rosenblatt Enclosure 4830 -1793- 6389.1