This Development Agreement ("Agreement") made this xxxxxxxxxxxxxxxx, by and among the City of Jefferson, Wisconsin, a Wisconsin municipal corporation, (hereinafter referred to as "City"); and Wal-Mart Real Estate Business Trust, a Delaware statutory trust ("Wal-Mart"); and xxxxxxxxxxxxxxxxxx collectively referred to as "Owner").
WHEREAS, the Owner is the owner of the real estate, consisting of approximately 21 acres located on State Trunk Highway 26 and real estate consisting of approximately 1 acre located on County Highway K, collectively an approximate total acreage of 22 acres described on Exhibit A, attached hereto and made a part hereof (the "Property"); and
WHEREAS, the Property is located in unincorporated xxxxxxxxxxxx, Wisconsin, and is contiguous and adjacent to the City; and
WHEREAS, the Owner will be submitting an Annexation Petition and Pre-Annexation Agreement to the City and no electors reside on the Property; and
WHEREAS, a public hearing will be held as required by law; and
WHEREAS, the Common Council of the City, after due and careful consideration, has concluded that the annexation of the Property would further the growth of the City, enable the City to control the development of the area, permit the sound planning and development of the City and serve the best interests of the City and its residents; and
WHEREAS, Wal-Mart has contract rights to acquire the Property and anticipates that it will develop the approximate 22 acre parcel, for commercial retail uses described in Exhibit B; and
WHEREAS, Wal-Mart anticipates that it will develop the 22 acre parcel for a 24 hour Wal-Mart SuperCenter retail department store including groceries and a pharmacy (a "Wal-Mart SuperCenter"), and a gas station, as identified on Exhibit C ("Wal-Mart Site"); and
WHEREAS, the requested zoning classification xxxx for the Property is adequate to permit the operation and construction of a Wal-Mart SuperCenter and gasoline service station on said Wal-Mart Site; and
WHEREAS, pursuant to Chapter 236, Wisconsin Statutes, a Development Agreement is allowed.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, the parties agree as follows:
The City hereby approves the development of the Wal-Mart Site for a Wal-Mart SuperCenter subject to the satisfaction and/or waiver of all of the following conditions:
(a) Wal-Mart acquires the Wal-Mart Site; and
(b) City annexes and rezones the Wal-Mart Site; and
(c) Construction Plans for (i) the Site Improvements (as defined in Section 3(b) hereof) and (ii) the Public Improvements (as defined in Section 3(c) hereof) are approved by the City in accordance with Section 3(d) hereof.
If the conditions set forth in this Section 1 are not satisfied on or before xxxxxxxx xx, 2004, then either Wal-Mart, Owner, or the City may terminate this Agreement by written notice to the others. Upon termination of this Agreement, the parties shall have no further rights or obligations hereunder.
2. ZONING APPROVALS AND PERMITS
(a) Zoning. As part of the annexation process, the City agrees to consider rezoning the Property, after public hearing, to xxxxxxxxxx. The City represents and warrants that xxxxxx is a proper zoning classification for the construction and operation of a Wal-Mart SuperCenter and gasoline service station thereon.
(b) Permits, Cooperation, Etc. The City agrees to consider all requests for approvals and permits, necessary for construction of the Wal-Mart SuperCenter on the Wal-Mart Site in a timely fashion, including, without limitation, certified survey map and site plan approval. When public hearings are required by law to be held prior to granting any such approvals, the City will conduct such hearings.
3. CONDITIONS TO CONSTRUCTION OF WAL-MART STORE
(a) Conditions. Wal-Mart has no obligation to construct, open or operate a Wal-Mart SuperCenter on the Wal-Mart Site. However, in order to open a Wal-Mart SuperCenter on the Property, (1) the City must annex and rezone the Property and issue permits as provided in Section 2 above: (2) Wal-Mart must acquire the Wal-Mart Site; and (3) Wal-Mart must construct, at no cost to the City, the Site Improvements set forth in Section 3(b) below.
(b) Site Improvements. If all of the Conditions are satisfied and Wal-Mart elects to construct a Wal-Mart SuperCenter on the Wal-Mart Site, Wal-Mart shall construct the following Site Improvements on the Wal-Mart Site ("Site Improvements"):
1. All lighting within the proposed development of the Wal-Mart SuperCenter shall be downward directed for the parking lot and shall be the responsibility of Wal-Mart, and shall be such quality and quantity as Wal-Mart deems appropriate.
2. Interior parking lot islands for the Wal-Mart SuperCenter shall be curbed and landscaped only as shown on Exhibit D (the Landscape Plan).
3. Wal-Mart shall cause the construction of a detention pond along the northern boundary of the Wal-Mart Site for the Wal-Mart Site only. Maintenance of said detention pond shall be the responsibility of the owner of the land upon which the same is located.
4. The building exterior material shall be a combination of smooth face and split face concrete block to be painted in an earth tone color scheme as shown on Exhibit E, Building Elevation. The seasonal garden center shall be enclosed with black extruded aluminum fencing and shade cloth.
5. The building signage and sign square footage shall be as shown on Exhibit F, Building Signage.
6. Wal-Mart shall construct water and sanitary sewer services as necessary to serve the Wal-Mart Site only. Wal-Mart shall secure and pay for permits as required for the development of the Property.
7. Upon issuance of certificate of completion by City with respect to the Site Improvements, the City shall also issue to Wal-Mart a certificate of occupancy.
8. Wal-Mart shall cause the construction of driveway connections to County Highway K as shown on Exhibit C.
9. Wal-Mart shall cause the construction of a driveway connection to State Trunk Highway 26 as shown on Exhibit C.
Plans for the Site Improvements must be approved by the City in accordance with Section 3(d) below, which approval shall not be unreasonably withheld or delayed.
(c) Public Improvements. The construction of the Wal-Mart SuperCenter shall also be expressly conditioned upon construction of the following public improvements ("Public Improvements"):
1. Wal-Mart shall cause the construction of 3-lane roadway improvement to County Highway K from the southern most property line of the Property to Collins Road within the existing sixty six (66) foot wide public right-of-way. The construction shall also include the associated utilities, as described below. Wal-Mart shall construct and install the following: a xxxxxxx (xx) inch water main, an xxxt (x) inch sanitary sewer main, and a xxxxxxxx (x) inch storm sewer main. Wal-Mart shall pay for inspection costs and construction costs directly relating to the improvement and utility extensions. Said roadway shall be constructed in accordance with the City's Subdivision Code.
2. Wal-Mart intends to construct, at Wal-Mart's sole expense, a driveway connection to State Trunk Highway 26, as shown on Exhibit G, Proposed Access. Wal-Mart and the City understand that the Wisconsin Department of Transportation (WisDOT) has jurisdiction over STH 26 along the Property frontage until xxxxxxxx 2008, at which time WisDOT will turn over jurisdictional control to the City. The City and Wal-Mart agree to the Proposed Access configuration for the duration of WisDOT jurisdictional control over STH 26 along the property frontage, unless mutually agreed to in writing by the City and Wal-Mart to change said configuration. The City shall support and if necessary, secure, an access permit from Wisconsin Department of Transportation and all other governmental authorities necessary to construct said driveway connection to STH 26.
3. Wal-Mart intends to construct, at Wal-Mart's sole expense, traffic signals and intersection modifications at the driveway access to STH 26 following the jurisdictional transfer of the STH 26 from WisDOT to the City as shown on Exhibit H, Proposed Future Access.
(d) Submission and Approval of Plans. All work with respect to each element of the Site Improvements set forth in Section 3(b) above ("Improvements") shall be in conformity with this Agreement.
(i) Construction Plans. Wal-Mart shall submit to the City construction plans ("Construction Plans") for each element of the Improvements for which it is responsible. The City shall within thirty (30) days from receipt approve or disapprove the Construction Plans, after reviewing said plans for compliance with all applicable City ordinances and this Agreement. If the City disapproves any of the Construction Plans, Wal-Mart shall submit revised plans within a reasonable time from the date of rejection. Upon resubmission, the City shall review and approve or disapprove such revised plans within thirty (30) days of submittal. This process shall repeat until such plans are approved by the City. In reviewing said plans, the City will take into account the normal and customary costs of constructing elements of this type. Any request for change in the construction plans by the city shall not cause an unreasonable increase in the costs. The City will not unreasonably withhold its approval.
(ii) Changes in Construction Plans. Prior to completion of the Improvements as certified by the City, if Wal-Mart desires to make any substantial change in the Construction Plans which significantly affects the appearance, function, or structural integrity of such element, Wal-Mart shall submit the proposed change to the City for its approval. If the Construction Plans, as modified by the proposed change, conform to the requirements of this Agreement and meet all applicable ordinances, the City shall approve the proposed change and notify Wal-Mart in writing of its approval. If the City disapproves of such changed plans, it shall so advise Wal-Mart within thirty (30) days of submission and Wal-Mart may submit revised changed plans within a reasonable time from the date of rejection. This process shall repeat until such changed plans are approved by the City. If such changed plans are not so approved or rejected within thirty (30) working days of receipt of the submission by the City from Wal-Mart, such changed plans will be deemed approved. The City will not unreasonably withhold or deny its approval.
4 . NOTICES
Any written notice or demand hereunder from any party to another party shall be in writing and shall be served by (a) personal delivery, (b) telefax with confirmation by first-class mail, (c) certified mail, return receipt requested or, (d) overnight courier such as Federal Express, United Parcel Service or Express Mart at the following addresses:
to the City at: and to Owner at:
City of Jefferson, Wisconsin xxxxxxxxxxx
Attn: xxxxxxxxxx xxxxxxxxxxxxxx
and to Wal-Mart at:
Wal-Mart Real Estate Business Trust
2001 S.E. 10 th Street
Bentonville, AR 72716-0550
Attn: Karen Whorton, with a copy to Shavondelia Brown, Esq.
Facsimile: (479) 273-8380
or to the last known address of any party or to the address provided by an assignee if such address is given in writing. Any party may change its address by providing notice in accordance with this provision. In the event said notice is mailed, the date of service shall be deemed to be two (2) business days after the date of delivery of said notice to the United States Post Office.
5 . ORDINANCES
The City, Wal-Mart and Owner agree to follow all city ordinances.
6 . BINDING EFFECT
This Agreement shall be binding upon the parties hereto and their respective heirs, executors, personal representatives, corporate authorities, administrators, successors and assigns. In the event of sale of the Wal-Mart Site prior to full completion of all requirements in accordance with this Agreement, Wal-Mart shall make acceptance of the conditions imposed by this Agreement by purchaser a condition of sale and Wal-Mart shall thereafter have no liability under this Agreement.
7 . TIME
Time shall be of the essence of this Agreement.
8 . RECORDING
The City shall record a memorandum of this Agreement in the Office of the Jefferson County Recorder of Deeds within thirty (30) days of the execution of this Agreement.
9 . AMENDMENT
This Agreement sets forth all the promises, inducements, agreements, conditions and understandings between the parties hereto relative to the subject matter thereof, and there are no promises, agreements, conditions or understandings, either oral or written, expressed or implied, between them, other than as herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties hereto unless authorized in accordance with law and reduced in writing and signed by the City of Jefferson and Wal-Mart and Owner.
10 . SEVERABILITY
If any section, subsection, sentence, clause, phrase or portion of this Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate and distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof.
11 . WAIVER
Neither party shall be excused from complying with any of the terms and conditions of this Agreement by any failure of the other party upon one or more occasion to insist upon or seek compliance with any such terms or conditions.
12 . CONTINUITY OF OBLIGATIONS; EXCULPATION OF OWNER AND CITY
Notwithstanding any provision of this Agreement to the contrary, including but not limited to the sale or conveyance of all or any part of the Property by the Owner to Wal-Mart, Wal-Mart or its successor and assigns shall at all times during the term of this Agreement remain liable to the City for the faithful performance of all obligations imposed upon Wal-Mart or its successor and assigns by this Agreement until such obligations have been fully performed or until City, at its sole option, has otherwise released Wal-Mart or its successor and assigns from any or all of such obligations.
The Owner hereunder shall not be obligated in any manner for Wal-Mart or its successors and assigns obligations under this Agreement. Wal-Mart and the City do hereby acknowledge that Owner has joined this Agreement at their request solely for purposes of technical compliance with certain requirements for agreements for annexation and zoning. Wal-Mart does hereby agree to indemnify, defend, and hold harmless Owner and City from and against any and all losses, costs, liabilities, damages, and expense (including reasonable legal and other expenses incident thereto) of every kind, nature, and description arising out of the obligations of Wal-Mart and its successors and assigns under this Agreement. The City does also agree not to seek to impose any duties or obligations upon Owner at any time arising out of any part of this Agreement.
13 . REMEDIES
Upon a breach of this Agreement, any Party, in any court of competent jurisdiction, by an action or proceeding at law or in equity, may secure the specific performance of the covenants and agreements herein contained, may be awarded damages for failure of performance or both, or may obtain rescission for repudiation or material failure of performance. Notwithstanding the foregoing, before the failure of any Party to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the Party claiming such failure shall notify, in writing, the party alleged to have failed to perform of the alleged failure and shall demand performance. No breach of this Agreement may be found to have occurred if performance has commenced to the satisfaction of the complaining Party within thirty (30) days of receipt of such notice.
14 . FORCE MAJEURE
If performance of any covenant to be performed hereunder by any party is delayed as a result of circumstances which are beyond the reasonable control of such party, which circumstances may include, but are not limited to, acts of God, war, acts of civil disobedience, harsh weather, strikes or similar acts, the time for such performance shall be extended by the amount of time of such delay.
15 . GOVERNING LAW
This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Wisconsin. Wal-Mart shall at all times observe and comply with all federal, state and local laws, regulations and ordinances which are in effect, as of the date hereof, which may affect the conduct of the work to be accomplished under this Agreement, and shall indemnify and save harmless the City and all its agents, officers, and employees, against any claim or liability arising from or based on the violation of any such law, ordinance regulation or order, whether by himself or his agents, employees or contractors. Wal-Mart shall procure all permits and licenses and pay all charges and fees as provided in this Agreement for Phase I and give all notices necessary and incident to the lawful prosecution of the public and site improvements to be constructed by Wal-Mart under this Agreement.
16 . GENERAL PROVISIONS
(a) The term of this Agreement shall be the earlier of completion and satisfaction of all terms and provisions herein or five (5) years from the date hereof.
(b) This Agreement may be executed in counterparts, each of which shall be deemed an original, all of which shall constitute one document.
(c) And except as provided in Section 6, Wal-Mart may assign its rights under this Agreement to any affiliate of Wal-Mart.
IN WITNESS WHEREOF , the parties have executed this Agreement as of the first date set forth above.
CITY OF JEFFERSON, WISCONSIN,WAL-MART REAL ESTATE
a Wisconsin municipal corporation BUSINESS TRUST,
a Delaware statutory trust
By: Print Name:
xxxxxxxxxxxxxx, City Clerk
Print Name: __________________________ Print Name:
Title: _______________________________ Title: Owner
Exhibit A - Annexation Legal Description
Exhibit B – Commercial Retail Uses
Exhibit C – Wal-Mart Site
Exhibit D – Landscape Plan
Exhibit E – Building Elevation
Exhibit F – Building Signage
Exhibit G - Proposed Access
Exhibit H - Proposed Future Access
Drafted by McClure Engineering and reviewed by Dawda, Mann Mulcahy & Sadler, PLC
STATE OF WISCONSIN )
COUNTY OF JEFFERSON )
I, the undersigned, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that xxxxxxxx, personally known to me to be the Mayor of the City of Jefferson, and xxxxxxxxx, personally known to me to be the City Clerk of the City of Jefferson, whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such Mayor and City Clerk, they signed and delivered the said instrument as Mayor and as City Clerk of said Municipal Corporation, and caused the seal of said Municipal Corporation to be affixed thereto, pursuant to authority given by the corporate authorities of the City of Jefferson for the uses and purposes therein set forth.
Given under my hand and Notarial seal, this ____ day of ______________, 2004.
STATE OF ARKANSAS )
COUNTY OF BENTON )
I, the undersigned, a Notary Public in and for the County and State aforesaid, DO HEREBY CERTIFY that ___________________________, personally known to me to be the ___________________ of Wal-Mart Real Estate Business Trust, and personally known to me to be the same person whose name is subscribed to the foregoing instrument as such ____________________, appeared before me this day in person and acknowledged that he/she signed, sealed and delivered the foregoing instrument as such ____________________, and as his/her free and voluntary act, for the uses and purposes therein set forth; and on his/her respective oath stated that he/she was duly authorized to execute said instrument and that the seal affixed thereto is the seal of said corporation.
Given under my hand and Notarial Seal this _______ day of _______________, 2004
STATE OF WISCONSIN )
COUNTY OF JEFFERSON )
I, the undersigned, a Notary Public in and for the County and State aforesaid, DO HEREBY CERTIFY that xxxxxxxxxx, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such xxxxxxxxxxxxxxx, appeared before me this day in person and acknowledged that he/she signed, sealed and delivered the foregoing instrument as such person, and as his/her free and voluntary act, for the uses and purposes therein set forth; and on his/her respective oath stated that he/she was duly authorized to execute said instrument and that the seal affixed thereto is the seal of said corporation.
Given under my hand and Notarial Seal this _______ day of _______________, 2004.
STATE OF WISCONSIN )
COUNTY OF JEFFERSON )
I, the undersigned, a Notary Public in and for the County and State aforesaid, DO HEREBY CERTIFY that _________________________, personally known to me to be the _____________________ of the xxxxxxxxxxxx, a Wisconsin limited liability company, to be the same person whose name are subscribed to the foregoing instrument as such __________________________, appeared before me this day in person and acknowledged that he/she signed, sealed and delivered the foregoing instrument as such person, and as his/her free and voluntary act, for the uses and purposes therein set forth; and on his/her respective oath stated that he/she was duly authorized to execute said instrument and that the seal affixed thereto is the seal of said limited liability company.
Given under my hand and Notarial Seal this _______ day of _______________, 2004.