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
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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
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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