ORD 36716 - Redevelopment agmt with Riverfront Partners LLC • `1��,�� Planning Department
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(402)444-5200
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City of Omaha Robert C.Peters
Mike Fahey,Mayor • Director
•
Honorable President
and Members of the City Council,
The attached proposed ordinance approves the redevelopment agreement between the City of Omaha
and Riverfront Partners,L.L.C. The City will sell 6.182 acres to Riverfront Partners,L.L.C., along
the redeveloped riverfront for the appraised fair market value amount of One Million Six Hundred
Thousand Dollars ($1,600,00.00).
•
This Agreement will implement the Riverfront Partners, L.L.C., Riverfront Place Tax Increment
Financing Revelopment Plan, an Amendment to the Gallup University Redevelopment Plan. The
Agreement provides for a two-phased condominium,town home,commercial/retail development at a
total estimated value of approximately Forty Million Dollars($40,000,000.00). The Agreement also
provides for approximately Five Million Seven.Hundred Four Thousand Dollars($5,704,000.00)in
TIF for eligible expenses to assist the developer in financing the project. The Agreement provides
that the developer receives up to fifty(50)percent of the TIF with the City retaining the balance to
cover a portion of the City's cost.to develop this property along with costs to defray the Gallup
University Riverfront Campus Redevelopment.
Your favorable consideration of this ordinance is requested.
Respectfully submitted, Referred to City Council for Consideration:
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// 1/10", )• 7 • etPli /` 7 �`
Robert Peters Date Mayor's Office/Title Date •
Planning Director
Approved:
Carol J. Ebdon Date Norm Jackman Date
Finance Director Acting Public Works Director
P:\Law l\1471 1 maf.doc
ORDINANCE NO. ,3��/�
AN ORDINANCE approving the Redevelopment Agreement between the City of Omaha and
Riverfront Partners, L.L.C., a Nebraska limited liability company, for the sale and
redevelopment of City owned land, and provide for an effective date.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
Section 1. Authority is hereby granted and approval hereby given for the execution of a
Redevelopment Agreement between the City of Omaha, a municipal corporation, and Riverfront
Partners, L.L.C., a Nebraska limited liability company.
Section 2. That the Mayor of the City of Omaha is authorized to execute,and the City Clerk
to attest on behalf of the City of Omaha,the Redevelopment Agreement Pursuant to Riverfront Place
TIF Redevelopment Plan,an Amendment to the Gallup University Redevelopment Plan between the
City of Omaha,Nebraska and Riverfront Partners,L.L.C.,approved in Section 1 hereof,and attached
hereto and marked Exhibit 1 and by this reference made a part hereof as if fully set forth herein.
Section 3. This ordinance,not being of a legislative character,shall be in full force and effect
immediately upon passage under and by virtue of the authority granted by Section 2.12 of the Home
Rule Charter of the City of Omaha, 1956 as amended.
INTRODUCED BY COUNCILMEMBER
•1J ._ . P14144 APPROVED BY:
7/01,' /
MAYOR OF THE ITY OF MAHA DATF/
PASSED JUL 2 7 2004 7-0
ATTEST.
Y CLERK O E CITY OF OMAHA DAT/
•/
APPROVED O , �
Or /DAP
CITY ATT• ' Y
P:\Lawl\14709rna€doc-
REDEVELOPMENT AGREEMENT
PURSUANT TO THE
RIVERFRONT PLACE REDEVELOPMENT PLAN
AN AMENDMENT TO THE GALLUP UNIVERSITY REDEVELOPMENT PLAN
BETWEEN THE CITY OF OMAHA,NEBRASKA,AND
RIVERFRONT PARTNERS LLC
DATED 2004
TABLE OF CONTENTS
Page
SECTION 1.GENERAL MATTERS
1.1 DEFINITIONS 1
1.2 REFERENCES 6
SECTION 2.OBLIGATIONS OF THE CITY 5
2.1 SITE ACQUISITION 5
2.2 ENVIRONMENTAL REMEDIATION 6
2.3 SITE PREPERATION 9
2.4 COST PARTICIPATION. 9
2.5 PUBLIC PLAZA AND RIVERWALK RECREATIONAL TRAIL MAINTENANCE 9
2.6 BRIDGE LANDING PARCEL DEVELOPMENT AND MAINTENANCE 10
2.7 CONVEYANCE OF PROJECT AREA 9
2.8 DOCK LEASE 11
2.9 SEWER CONNECTION 11
2.10 No SPECIAL ASSESSMENTS OR OVERLAYS 12
2.11 TIF BONDS 12
2.12 FAIR VALUE 12
2.13 SEWER EASEMENT 13
2.14 DEVELOPMENT APPROVALS 12
2.15 GALLUP STORM SEWER AND PARKING LOT REMOVAL AND RELOCATION 12
2.16 AMENDMENT TO GALLUP REDEVELOPMENT COVENANTS 12
2.17 ARCHITECTURAL APPROVALS 13
2.17 SUBSEQUENT ACTION BY CITY 13
SECTION 3.OBLIGATIONS OF THE DEVELOPER 13
3.1 CONSTRUCTION OF IMPROVEMENTS 13
3.2 [INTENTIONALLY OMITTED] 13
3.3 CASE PAYMENT FOR LAND 14
3.4 STREETS 14
3.5 PUBLIC PLAZA AND RIVERWALK RECREATIONAL TRAIL 14
3.6 BRIDGE LANDING VIEW CORRIDOR DEVELOPMENT AND MAINTENANCE 14
3.7 SITE PREPARATION 15
1
3.8 CERTAIN AGREEMENTS REGARDING TIF FINANCING 15
3.9 PENAL BOND 16
3.10 CONTINGENCIES 16
3.11 REPLATTING AND REZONING 17
SECTION 4.PROVISIONS OF THE CONTRACT 17
4.1 SCHEDULE OF PERFORMANCE 17
4.2 FAILURE OF TIMELY PERFORMANCE 17
4.3 EXCUSED DELAY IN PERFORMANCE 17
4.4 ECONOMIC IMPRACTICABILITY 18
4.5 DELAYS;TERMINATION 18
4.6 NOTICE AND CURE 19
4.7 EQUAL EMPLOYMENT PROVISIONS 19
4.8 NONDISCRIMINATION 19
4.9 CAPTIONS 19
4.10 COMPLIANCE WITH LAW 19
4.11 SECTION 8.05 OF HOME RULE CHARTER 19
4.12 NO MERGER 19
4.13 SEVERABILITY 20
4.14 ENTIRE AGREEMENT 20
4.15 MULTIPLE COUNTERPARTS 20
4.16 ADMINISTRATIVE AMENDMENTS 20
4.17 DELEGATION OF DEVELOPER'S DUTIES; ASSIGNMENT OF RIGHTS 21
4.18 REMEDIES 21
4.19 SURVIVAL 22
4.20 No RELIANCE ON OTHERS 22
4.21 LEGAL OPINIONS 22
4.22 COOPERATION AND COORDINATION 23
4.23 CITY REACQUISITION RIGHT 23
SECTION 5.NOTICES 24
SECTION 6.EXHIBITS 24
ii
1
REDEVELOPMENT AGREEMENT
THIS REDEVELOPMENT AGREEMENT ("Agreement") is made and entered into by
and among THE CITY OF OMAHA, NEBRASKA, a municipal corporation (the "City"), and
RIVERFRONT PARTNERS LLC, a Nebraska limited liability company("Developer").
PRELIMINARY STATEMENT
Reference is made to the Riverfront Place Redevelopment Plan, defined below, and
referred to herein as the Redevelopment Plan. In order to carry out the intent of the
Redevelopment Plan, the City published advertisements for proposals. The City selected
Developer's proposal, which generally includes the development of two residential condominium
towers of approximately seventy-eight units, twenty-seven residential townhome units and
approximately 13,500 sq. feet of commercial space, to be developed in multiple phases
(collectively, the "Project").
As a result, to implement the Project for the general benefit and welfare of the City at
large, the City and the Developer desire, through their joint efforts, to redevelop the
Redevelopment Plan Area, defined below. In that regard, the respective parties to this
Agreement intend to accomplish the following:
(1) Developer intends to construct the Project; and
(2) The City intends to cause development of portions of the Redevelopment
Plan Area as set forth in this Agreement.
The purpose of this Agreement is to set forth the rights and obligations of each of the
parties hereto with respect to the implementation of the Redevelopment Plan.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
Section 1. GENERAL MATTERS
1.1 Definitions. The following terms shall have the following meanings for
all purposes of this Agreement:
"Amendment to Gallup Redevelopment Covenants" shall mean that Certain
Amendment to Gallup Redevelopment Covenants to be entered into by the parties thereto. The
purpose of the Amendment to Gallup Redevelopment Covenants is to modify the Gallup
Redevelopment Covenants, defined below, in order to expressly permit the land uses
contemplated for the Project. The form of the Amendment to Gallup Redevelopment Covenants
acceptable to the City and the Developer is attached hereto as Exhibit G.
1
"Bridge Landing Parcel" shall mean that certain real property, adjacent to the Project
Area, at the base of the proposed Missouri River pedestrian bridge, legally described as Lot 19
Gallup Riverfront Campus, as surveyed,platted and recorded in Douglas County,Nebraska.
"Bridge Landing View Corridor" shall mean that portion of the Project Area, which is
adjacent to the Bridge Landing Parcel, and is shown on the Riverfront Place Redevelopment
Agreement Site Plan. The Bridge Landing View Corridor is intended to be developed and
landscaped so as to create a pleasing environment and public view from the Bridge Landing
Parcel and to advance other interests of the City, as more particularly described in Section 3.6,
below.
"City" shall mean the City of Omaha, Nebraska, a municipal corporation of the
metropolitan class.
"Closing Date" shall mean the date, set forth in the Schedule of Performance, defined
below, or such later date as may be mutually agreed to by the parties hereto or provided
elsewhere in this Agreement, on which date, among other things, City will convey the Project
Area, defined below, to Developer. There shall be separate closing dates for Phase I and Phase II.
"Developer" shall mean Riverfront Partners LLC, a Nebraska limited liability company,
and its successors and assigns, including, but not limited to any master property owner's
association and/or condominium unit owners association.
"Development Approvals" shall mean all such final, irrevocable and unappealable
zoning, variances, authorizations, approvals, consents, curb cuts, environmental studies, permits
and/or waivers from all governmental and/or quasi-governmental agencies having jurisdiction
over the Redevelopment Plan Area and from all third parties holding consent prerogatives, (the
"Development Approvals") relating to or necessary for the development and
residential/commercial use of, and the construction of buildings and other improvements
(including the multi-story condominium towers and townhomes and other related improvements)
in the Project Area, as contemplated by the Agreement. Development Approvals shall include
but not be limited to (i) City of Omaha approval of the replatting, zoning and final site plan
(which includes approval of the development plan establishing building location, parking lot
layout and locations for ingress and egress of vehicular traffic to and from adjacent public
streets), (ii) agreements with or approvals from, utility companies for utilities connections and
service to the Project, and (iii) agreements, consents or approvals from Gallup, defined below,
and all other third parties, including but not limited to any agreements, consents or approvals that
are or may be necessary for the Amendment to Gallup Redevelopment Covenants, architectural
approvals pursuant to the Gallup Redevelopment Covenants, as amended and, for relocation of
the Gallup Storm Sewer, defined below.
"Division Date" shall mean the date after which any ad valorem tax levied upon real
property in the Project Area shall be divided as is provided in the Redevelopment Law, defined
below, and which shall be specified in the Redevelopment Plan. There shall be a separate
Division Date for each phase of the Project. The Division Date for Phase I shall be the date of
final approval of the Redevelopment Plan by the City of Omaha for Phase I. The Division Date
2
for Phase II shall be the date of final approval of the Redevelopment Plan by the City of Omaha
for Phase II.
"Dock Lease" shall mean a lease agreement to be entered into by the City and the
Developer for the use and, at Developer's option, improvement of the existing barge dock lying
to the East of the Project Area along the Missouri River. The Dock Lease shall include the lease
of a strip of land, for access,between the dock and the Project Area, shall be for a term of ninety-
nine (99) years, and shall provide for City approval (not to be unreasonably withheld) of
modification to the dock by Developer.
"Excess Tax Revenues" shall mean any ad valorem tax which is produced after the
Division Date upon real property in the Project Area by the levy(at the rate fixed each year by or
for each of the hereinafter defined public bodies) by or for the benefit of the State of Nebraska,
the City, and any board, commission, authority, district or any other political subdivision or
public body of the State of Nebraska (collectively "public bodies") in excess of any ad valorem
tax which is produced by such levy upon the Redevelopment Project Valuation, defined below.
"Gallup" shall mean Gallup, Inc., a Delaware corporation, its affiliate Riverfront
Campus Developers, L.L.C., a Nebraska limited liability company, and any other parties or
entities owned by, controlled by or affiliated with the aforementioned entities which have the
right to grant or withhold any Development Approvals.
"Gallup Redevelopment Covenants" shall mean that certain Declaration of
Redevelopment Covenants, dated as of April 19, 2001, entered into among City, Riverfront
Campus Developers, LLC, and Douglas County, Nebraska, as amended by that certain First
Amendment to Redevelopment Agreement dated March 28, 2002 (the date of execution by the
Mayor of the City), as further amended by that certain Second Amendment to Redevelopment
Agreement dated June 24, 2002 (the date of execution by the Mayor of the City), all recorded in
the Register of Deeds of Douglas County, Nebraska on July 31, 2003 as Instrument Number
2003144737.
"Gallup Storm Sewer" shall mean the existing storm sewer which crosses Project Parcel
4, defined below, in a north/south direction, as shown on the Riverfront Place Redevelopment
Agreement Easement Plan.
"Gallup Storm Sewer Easement" shall mean any easement, license, permit or similar
agreement permission or grant pertaining to the Gallup Storm Sewer in the Project Area.
"Marketable Title" shall mean fee simple absolute title, free and clear of all liens,
encumbrances, claims, reversionary interests, easements, rights-of-way, covenants, restrictions,
special assessments, delinquent taxes and party-wall and similar agreements, excepting only
Permitted Exceptions, as defined in Section 2.7.2.
"Phase I" shall mean Project Parcel 1, Outlot A and Outlot B.
"Phase II" shall mean Project Parcels 2, 3, 4, 5, 6 and Outlot C.
3
"Project Area" shall mean Lots 16 and 18 Gallup Riverfront Campus, as platted and
recorded in Douglas County,Nebraska.
"Project Parcel" shall mean a parcel of land shown on and legally described on the
Riverfront Place Redevelopment Agreement Site Plan, defined below, designated as 1, 2, 3, 4, 5,
6, Outlot A, Outlot B and/ or Outlot C. The legal descriptions may be administratively amended
by mutual agreement of the City and the Developer when the final locations of the buildings and
other improvements to be constructed on a particular Project Parcel have been determined. If the
legal description of a particular Project Parcel is so amended, the City and the Developer shall
cause the plat of such area to be amended and recorded if necessary so that such Project Parcel
will be a legally subdivided lot or lots.
"Redevelopment Law" shall mean the Community Development Law of the State of
Nebraska (Chapter 18, Article 21, Sections 18-2101, et seq., including Section 18-2147 Reissue
Revised Statutes of Nebraska, 1943, as amended).
"Redevelopment Plan" or "Riverfront Place Development Plan" shall mean the
redevelopment plan and any amendments thereto approved by the City and which is applicable to
the Project Area, defined below. The Redevelopment Plan currently is the Gallup University
Campus Redevelopment Plan adopted on January 12, 2001, which shall be amended or replaced
as may be necessary or desirable to carry out the terms and provisions of this Agreement.
"Redevelopment Plan Area" shall mean the approximately 6.2 acre area encompassed
in the Redevelopment Plan. The Redevelopment Plan Area includes the Project Area, along with
the public streets and rights-of-way and any adjacent property contemplated by the
Redevelopment Plan, all as depicted on the Riverfront Place Redevelopment Agreement Site
Plan.
"Redevelopment Project Valuation" shall mean the valuation of the real property
located in the Project Area as of the day immediately preceding the Division Date in accordance
with the Redevelopment Law.
"Riverfront Place Redevelopment Agreement Easement Plan" shall mean the
drawing and legal descriptions attached hereto as Exhibit B.
"Riverfront Place Redevelopment Agreement Site Plan" shall mean the drawing and
legal description attached hereto as Exhibit A showing various details of the proposed
redevelopment and the legal description of the Redevelopment Plan Area.
"Riverfront Place Redevelopment Covenants" shall mean the Declaration of
Redevelopment Covenants governing the use, development and maintenance of Outlots 4 and 5,
adjoining the easterly boundary of the Project Area, a copy of which is attached hereto as "H".
"Riverfront Plaza" shall be the driveway and parking areas to be known as Riverfront
Plaza, and located on Outlot A and Outlot B in the location shown on the Riverfront Place
Redevelopment Agreement Site Plan.
"Site Preparation" shall mean and include all of the following:
4
(i) Any shoreline stabilization reasonably required to maintain the
integrity of the Project Area and any improvements constructed
thereon, including but not limited to buildings, parking areas,
drives, landscaping, and trails, and improvements leased pursuant
to the Dock Lease.
(ii) Importation and placement of soils on the building pads for Project
Parcels 1, 2, 3, 4, 5, 6, Outlot A, Outlot B and Outlot C as
necessary to: (a) achieve the surcharge recommendations in the
Soils Report, defined below; and, (b) bring the site to a uniform
elevation which is consistent with the elevation of the surrounding
properties, for a total cost not to exceed$54,000.
(iii) Obtaining from the Federal Emergency Management Agency
("FEMA") a revision of the existing flood insurance rate map to
designate the Project Area as lying outside of the flood plain. The
City agrees to apply to FEMA for the map revision within thirty
(30) days after approval of the final plat for the Project Area and
thereafter to diligently take all steps necessary to obtain FEMA's
approval of the map revision.
"Soils Report" shall mean the written recommendations of the geotechnical engineers
retained by the Developer to evaluate and make specific project development recommendations
which take into consideration existing soil and subsoil conditions. The Soils Report (Project No.
40887) is dated March 17, 2004 and was prepared by Steven R. Saye and David J. Hamilton of
Kleinfelder, a copy of which has been provided to the City.
"TIF Bonds" shall mean tax exempt private placement revenue bonds issued by the City
acting as the authority pursuant to the Redevelopment Law which are secured by and payable, in
whole or in part, from the Excess Tax Revenues produced from the improvement, development,
and redevelopment of the real estate in the Project Area as specifically set out in Section 18-2147
of the Reissue Revised Statutes of Nebraska.
1.2 References. Any reference herein to plans, contracts, or other instruments
defined in Section 1.1 hereof shall mean, unless the context otherwise requires, such plans,
contracts, or other instruments as amended, supplemented, or otherwise modified from time to
time.
Section 2. OBLIGATIONS OF THE CITY. The City shall take all actions
necessary, including holding hearings, issuing approvals, and executing documents, to carry out
the intent of this Agreement, including but not limited to the following:
2.1 Site Acquisition. The City shall acquire marketable title, by negotiated
purchase or, if good faith negotiations fail, by use of the City's power of eminent domain, those
portions of the Redevelopment Plan Area, or interests therein, if any, not already owned by the
City. In connection with such acquisitions, the City shall perform all of its obligations as the
"Displacing Agency" under the Nebraska Relocation Assistance Act.
5
2.2 Environmental Remediation.
2.2.1 Definitions. The following terms shall have the following
meanings for all purposes of this Agreement.
"Agency" shall mean that environmental agency which has lead authority for
investigation and remediation of environmental conditions at the Project Area, presumably the
Nebraska Department of Environmental Quality ("NDEQ") or the United States Environmental
Protection Agency("EPA"). Lead authority may change from NDEQ to EPA (or vice versa), in
which case the Agency shall switch without affecting this Agreement. In the event both NDEQ
and EPA assume dual lead authority, The Agency shall include both NDEQ and EPA.
"Remediation Objectives" shall be any future soil removal, soil remediation,
soil treatment, groundwater remediation and groundwater treatment measures determined to be
necessary to (1) be protective of human health and the environment, given the intended future
uses of the Project Area; (2) allow the safe construction of the buildings and other improvements
to be constructed within the Project Area, and (3) permit the Developer to obtain private
financing for development of the Project Area.
"Future Remediation and Monitoring Measures" shall be those measures to be
taken pursuant to the Remedial Action Plan and those additional measures, if any, which are in
the future determined necessary by the Agency for implementation, or continuation, after
implementation and shall include, without limitation, in situ soil remediation, soil vapor
extraction, groundwater extraction, groundwater treatment and groundwater monitoring.
"Hazardous Substances" shall mean and include any "hazardous substance" as
defined in the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), the regulations promulgated under CERCLA, and any similar Nebraska statute.
"Hazardous Substances" shall also include ammonia and fertilizer or any fraction thereof (but
only to the extent they are hazardous to human health or the environment, considering the
intended uses of the property), petroleum (including crude oil or any fraction thereof), natural
gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel or mixtures of
natural gas and such synthetic fuel), despite the exclusion of those substances from the definition
of"hazardous substance" in CERCLA.
"No Further Action Letter" shall mean that certain letter from Michael J.
Linder, Director of the Nebraska Depaitiiient of Environmental Quality to Norman Jackman,
City of Omaha dated December 9, 2003 concerning the Remedial Action Plan, defined below.
"Remedial Action Plan" shall mean that certain Remedial Action Plan(Revision
5) for the City of Omaha Dock Property, Abbott Drive, Omaha,Nebraska dated August 6, 2003.
"Environmental Covenants" shall mean the Environmental Covenants attached
hereto as Exhibit I entered into by the City of Omaha, Riverfront NPS, Inc. and Riverfront
Campus Developers II, L.L.C. concerning the use and development of the Project Area.
6
2.2.2 Environmental Representations and Warranties of the City:
The City represents, warrants and agrees as follows:
(i) The City has designed and implemented the Remedial Action Plan.
The City has previously performed and fulfilled and shall continue
to perform and fulfill all commitments, obligations and agreements
described in the No Further Action Letter and the Remedial Action
Plan.
(ii) If Hazardous Substances are discovered that are not accounted for
in the Remedial Action Plan or if the Remedial Action Plan does
not or has not achieved the Remediation Objectives, and if
required by the Agency, the City shall amend the Remedial Action
Plan to provide for additional remediation of such Hazardous
Substances, provided, however this subsection (ii) shall not apply
to Hazardous Substances placed at, on or under the site by
Developer of third parties after the date of Closing.
(iii) The City will design and implement the remedy, or remedies,
selected by the Agency that will meet the Remediation Objectives.
The City will coordinate with the Developer to design and
implement any such remedy, so as, to not limit the development,
use or marketability of property in the Project Area.
(iv) The City will operate and maintain all Future Remediation and
Monitoring Measures indefinitely, but may discontinue any one or
more Future Remediation and Monitoring Measure at such time as
the Agency determines, in writing, that such Measure(s) is (are) no
longer necessary and may, therefore, be terminated. The City shall
notify the Developer in writing of its intention to so discontinue
and of any written determination made by the Agency.
(v) Upon Developer's request, the City will provide the Developer
and/or Developer's designated environmental consultants with
copies of all reports and correspondence submitted to the Agency
or in any way relating to the environmental condition of the Project
Area, and will meet and confer from time to time with the
Developer and its designated environmental consultants in a good
faith effort to assist Developer in evaluating the environmental
condition of the Project Area and the Remediation Action Plan.
(vi) The City will pay all costs relating to environmental remediation,
monitoring, reporting, compliance or similar matters, required by
the Agency, court order or applicable law, for any environmental
condition existing prior to closing.
7
(vii) The City will reimburse Developer for all remediation and/or
construction costs reasonably incurred by the Developer as a result
of the existence, prior to Closing, of any Hazardous Substance on
the Project Area, including but not limited to increased
construction costs resulting therefrom.
(viii) The City will notify and cooperate with the Developer in selecting
the location of monitoring wells or stations if required to be placed
in the Project Area.
2.2.3 Indemnification by the City. The City shall indemnify, defend,
and hold harmless the Developer and any other owner or occupant of any portion of the Project
Area and each of those persons' or entities' respective employees, agents, successors and assigns
("the Indemnified Parties"), from and against any claims, suits, actions, threatened actions,
notices of claim, notices of violation, notices of non-compliance, letters of warning, remediation
costs, or other liabilities of any kind which the Indemnified Parties may receive or incur
following the date of this Agreement, without exception: (i) on account of the existence of any
Hazardous Substance at, on, or under the Redevelopment Plan Area or transferred to or from the
Redevelopment Plan Area whether through subsurface migration or intentional transportation
connected with any remediation or removal activity or any other cause and; (ii) resulting from or
related to a breach by the City of its obligations under this Section 2.2. The City's
indemnification of the Indemnified Parties shall include the payment of reasonable attorneys'
fees and consultants' fees incurred by the Indemnified Parties in responding to an event covered
by the indemnity. This indemnity shall exclude any Hazardous Substances placed at, on, or
under the Site by an Indemnified Party or third parties after the date of this Agreement, except
that any claims that environmental conditions that existed at the time of closing were exacerbated
by construction,presence or maintenance of buildings, structures, walkways and green spaces set
forth in general in the Riverfront Place Redevelopment Agreement Site Plan shall not be
excluded from the City's indemnification of the Indemnified Parties.
2.2.4 Environmental Insurance. Without limiting the obligations of
the City under subsection 2.3.3 or any other provision of this Agreement, the City has obtained
$10,000,000.00 of environmental insurance and will cause to be named as additional insured
parties thereunder the Developer and, at the request of the Developer, any condominium unit
owners association(on behalf of itself and unit Owners in the Project Area), any property owners
association (on behalf of itself and other property owners in the Project Area), any owner of a lot
in the Project Area, or any mortgage lender holding a lien on any part of the Project Area. The
City agrees not to terminate such environmental insurance, prior to the natural expiration of the
policy.
2.3 Site Preparation. Any Site Preparation not completed by the City as of
the date of this Agreement may be completed by the Developer and the City shall reimburse the
Developer for such costs as more fully described in Section 3.7,below.
8
2.4 Cost Participation.
(a) With respect to Phase I, the City shall participate in the cost of allowable TIF
improvements constructed by Developer under Section 3.4 by reimbursing Developer for a
maximum of $154,000 of such costs, including architectural and engineering costs. Such
reimbursement shall be made on a monthly basis based on percentage of completion as certified
by Developer's engineer, within thirty days of such certification.
(b) With respect to Phase II, the City shall participate in the cost of allowable TIF
improvements constructed by Developer under Sections 3.5 and 2.15 by reimbursing Developer
for a maximum of$223,000 of such costs, including architectural and engineering costs. Such
reimbursement shall be made on a monthly basis based on percentage of completion as certified
by Developer's engineers,within thirty days of such certification.
2.5 Public Plaza Area and Riverwalk Recreational Trail Maintenance.
The City shall accept from the Developer, upon completion of construction of improvements
thereon by Developer, the easements for the public plaza and riverwalk recreational trail, as
shown on the Riverfront Place Redevelopment Agreement Site Plan and more fully described in
Section 3.5 hereof. The City shall maintain, repair and replace the recreational trails (including
associated lighting, signage and landscaping) to the City standards applicable to similar
improvements. The City shall maintain, repair and replace the plaza (including associated
lighting, signage and landscaping) to the City standards applicable to similar improvements. The
Developer shall have the right, at Developer's sole cost and expense to maintain, repair and
replace such improvements at a higher standard. The City shall indemnify, defend and hold the
Developer, all future owners and occupants of the Project Area or any portion thereof, any
condominium unit owner's association and/or property owner's association with interests in the
Project Area (each, an "indemnified party") harmless against any loss, liability, damage or
expense whatsoever resulting from or arising out of, or which may result from or arise out of,
third party claims or causes of action associated with or pertaining to the use or maintenance of
the public plaza and recreational trail after such easements have been granted, except for liability
resulting from the indemnified party's own gross negligence or willful misconduct.
2.6 Bridge Landing Parcel:
2.6.1 Development and Maintenance. The City shall design, construct
and install, in conjunction with development of the pedestrian bridge across the Missouri River,
and thereafter maintain to City standards applicable to similar improvements, landscaping on the
Bridge Landing Parcel and an extension of the riverwalk recreational trail from the southerly
boundary of the Project Area to the southerly boundary of the Bridge Landing Parcel. The City
agrees that such landscaping and trail improvements shall be harmonious and compatible with
the improvements and landscaping in the Project Area. The City agrees to cooperate with
Developer in creating and maintaining a smooth surface grade transition between the Bridge
Landing Parcel and the Project Area. The City agrees to disallow uses of the Bridge Landing
areas which are not compatible with the residential use of the Project Area, provided, however
this provision shall not preclude music between the hours of 6:00 a.m. and 11:00 p.m. The City
agrees, at its sole cost and expense, to complete a temporary extension of the riverwalk
recreational trail from the southerly boundary of the Project Area to the southerly boundary of
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the Bridge Landing Parcel and to plant and maintain, at a minimum, a grass dust cap on the
Bridge Landing Parcel by the dates set forth in the Schedule of Performance.
2.6.2 Easement. By the date set forth in the Schedule of Performance,
the City agrees to grant Developer a perpetual easement across the Bridge Landing Parcel for the
benefit of Project Parcel 1 and in the location shown on the Riverfront Place Redevelopment
Agreement Easement Plan. This easement shall be in a form acceptable to Developer, shall
provide for pedestrian and vehicular ingress and egress to and from Project Parcel 1 and
Riverfront Drive, and for the construction, replacement, repair and maintenance of related
improvements.
2.7 Conveyance of Project Area. The City shall convey Marketable Title
and deliver exclusive possession of that portion of the Project Area in Phase I to the Developer
upon the Closing Date for Phase I and of that portion of the Project Area in Phase II to
Developer upon the Closing Date for Phase II. Each conveyance by the City shall be made by
general warranty deed and, if the Site Preparation has not been completed, the City shall
continue to have the obligation to reimburse Developer for the cost to complete Site Preparation
in accordance with this Agreement. On the Closing Date for Phase I, the City shall deposit the
warranty deed for Phase II into escrow, as is further described in Paragraph 3.3, below. General
real estate taxes first becoming delinquent in the year of the conveyance shall be prorated to the
date of closing for each conveyance, and all prior years shall be paid by the City. Except as
required in this Agreement, the City shall not alter or modify the Project Area from the condition
reflected in the Survey.
2.7.1 Survey. The City has provided Developer with a current survey of
the Project Area(such survey and any revision thereto contemplated herein shall be referred to as
the "Survey") Within fifteen (15) days of the date of the Update Endorsement referred to in
Section 2.7.2, below, the City shall provide Developer with a revised Survey accurately
reflecting new information, if any. The revised Survey shall also address survey issues, if any,
communicated by Developer to the City prior to the date of this Agreement. In any event the
Survey shall be prepared by a surveyor licensed by the State of Nebraska and prepared in
accordance with the current standards for Land Title Surveys of the American Land Title
Association and the American Congress on Surveying and Mapping certified to Developer, City
and the Title Company, defined below. The Survey shall set forth the legal description and street
address (if any) of the Project Area, and include a vicinity map showing the location of major
streets and/or highways. The Survey shall show all (i) improvements, (ii) easements (visible or
recorded), including recording information concerning the documents creating any such
easements, (iii) sewage, water, electricity, gas and other utility facilities, together with points of
connection, (iv) adjacent public roads and streets (including the dimensions thereof), and other
areas of ingress and egress to and from the Project Area, (v) areas located within flood plains,
conservation areas or wetlands, (vi) topographic contour lines showing existing elevations, at one
foot intervals, (vii) improvements on adjoining properties which are within five (5) feet of the
property lines of the Project Area, and, (viii) the number of gross square feet in the Project Area.
2.7.2 Title Evidence. The City has provided Developer with a
commitment for title insurance (such commitment and any endorsements contemplated herein
shall be referred to as the "Commitment") for an owner's policy of title insurance (ALTA Form
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B-1992 or the equivalent) coveringthe Area and easements appurtenant thereto. Within
q ) Projectpp
fifteen (15) days of the date of this Agreement, the City shall provide Developer with an
endorsement to the Commitment changing the "effective date" in the Commitment to a date
subsequent to the date of this Agreement ("Update Endorsement"). The Update Endorsement
shall also address title insurance issues, if any, communicated by Developer to the City prior to
the date of this Agreement. In any case, the Commitment shall include legible copies of all
documents, maps or plats set forth therein as affecting the Project Area and shall be issued
through a title company acceptable to Developer (the "Title Company"). The Commitment shall
also identify and insure the Project Area and any easements appurtenant thereto. The
Commitment shall also include the following assurances (unless prohibited by law): (i)
endorsement deleting the GENERAL EXCEPTIONS under Schedule B, (ii) endorsement
providing that all of the parcels comprising the Project Area are contiguous (if the land is
comprised of more than one parcel) and that the Project Area is contiguous to any real estate
containing easements appurtenant thereto, (iii) 3.0 zoning endorsement, (iv) access endorsement
with respect to Riverfront Drive at all locations shown on the Riverfront Place Redevelopment
Agreement Site Plan and the Riverfront Place Redevelopment Agreement Easement Plan (v)
location endorsement (ALTA form 5), (vi) endorsement insuring no violation of the building
lines, covenants, easements or restrictions pertaining to the Project Area, (vii) endorsement
deleting from CONDITIONS AND STIPULATIONS (a) creditors rights, (b) co-insurance
provision (section 7b), and (c) arbitration provision, (viii) and (x) endorsement insuring the
Riverfront Place Redevelopment Covenants and the Amendment to Gallup Redevelopment
Covenants with priority over any third party lien or interest. City agrees to provide to the Title
Company any abstract of title and/or any other form of title evidence it may have obtained,
including any attorney's opinion or any owner's title insurance policy, covering the Project Area.
Within thirty (30) days after the later of (i) receipt of both the Update
Endorsement and the Survey in the form specified above or, (ii) the Date of this Agreement,
Developer shall deliver to City a written statement containing any objections Developer may
have to title, the Commitment and/or the Survey. If a title objection statement is not delivered
within said 30-day period, title to the Project Area through the date of the Commitment shall be
deemed approved by Developer. Any title matters not objected to by Developer shall be
"Permitted Exceptions." Permitted Exceptions shall also include recorded easements and right-
of-ways for streets, sewers, utilities and pedestrian ways within the locations shown on the
preliminary plat and shall include the Gallup Redevelopment Covenants as amended by the
Amendment to Gallup Redevelopment Covenants and shall also include the Environmental
Covenants. Notwithstanding anything to the contrary, Permitted Exceptions shall include the
Gallup Storm Sewer Easement only if the City has obtained the easements, agreements, consents
and approvals referenced in Section 2.15, below. If such statement is so delivered, City shall use
its best efforts and all due diligence to cure or remove all such objections prior to Closing. The
removal or cure of any such objection shall be evidenced by City providing an endorsement to
the Commitment, and a revised Survey, if appropriate, showing such objections to be cured or
removed. If any objection is not cured or removed prior to Closing, Developer, in addition to
any other remedy contained in this Agreement, may elect to (i) accept title to the Project Area as
it is, subject to the right to deduct from the purchase price for the Project Area funds necessary to
satisfy outstanding mechanics, mortgage-related or judgment liens, or (ii) terminate this
Agreement. Upon any such termination, each party shall be released from all duties or
obligations contained herein, exclusive of indemnification obligations contained herein.
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2.8 Dock Lease. In exchange for$1.00, the City agrees to enter into the Dock
Lease with the Developer.
2.9 Sewer Connection. The City shall permit the Developer to connect and
pump into the City's sanitary sewer and storm sewer lines and mains to serve any building to be
at any time hereafter constructed on the Project Area.
2.10 No Special Assessments or Overlays. The City shall at no time levy
special assessments against any Project Parcel or any portion thereof or the Developer, or their
successors or assigns to pay for the original construction of any improvements made in
connection with or pursuant to this Agreement or any amendments hereto. The City finds and
agrees that the improvements made by the City and those made by Developer but paid for by the
City pursuant to this Agreement are for the general benefit of the public within the City and are
not local in nature. The City shall indemnify and hold the Developer, and its successors and
assigns, harmless from any suit, damage, assessment, injury or claim (including reasonable legal
fees) which the Developer or its successors or assigns may suffer or incur as a result of any
attempt by the City to impose a special assessment for such improvements or to recover any
funds or damages from the Project Area, the Developer, or their successors or assigns by reason
of no such special assessment having been made by the City.
2.11 TIF Bonds.
(a) With respect to the development of Phase 1, the City shall issue and sell TIF Bonds
and grant 50% of the net proceeds thereof to the Developer within One Hundred and Eighty
(180) days after issuance of a building permit for the residential tower and townhomes on Project
Parcel 1. The City shall retain the balance of such TIF Bond proceeds. The City agrees that the
Developer's portion of the TIF proceeds shall be used generally as set forth on Exhibit E. The
TIF proceeds may be used in any manner allowed by law.
(b) With respect to the development of Phase II, the City shall issue and sell TIF Bonds
and grant 50% of the net proceeds thereof to the Developer within One Hundred and Eighty
(180) days after issuance of a building permit for the residential tower and townhomes on Project
Parcels 4 and 5. The City agrees that the Developer's portion of such TIF proceeds shall be used
generally as set forth on Exhibit E. The TIF proceeds may be used in any manner allowed by
law.
(c) The City agrees to take all steps necessary or desirable for the issuance of the TIF
Bonds described herein, including, but not limited to any modification or replacement of the
existing Redevelopment Plan. The City warrants that it will use its best efforts to provide the
maximum amount of TIF proceeds for each phase of the project by placing the TIF Bonds at the
best available interest rate at the time of funding. The TIF Bonds shall be issued in such a
manner as to be exempt from state and federal taxation. The valuation of the property for TIF
purposes shall be the greater of the minimum valuation agreed to pursuant to Section 3.1 or the
aggregate price at which condominium units are contracted for sale under a binding real estate
contract (or for unsold units for which there is no binding real estate contract the valuation for
TIF purposes shall be the contract price for comparable units). The TIF Bond shall be issued at
not greater than a 1.0 debt service ratio. In addition the City will use its best efforts to ensure the
assessor values the condominium units on the first valuation date after sale at not less than the
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actual sales price for such unit. Developer and its individual owners will guarantee payment of
the property taxes on the real estate subject to TIF financing until such time as the real estate
reaches full valuation under this Section 2.11. The City, Developer and such owners will
execute mutually acceptable guaranty documents to carry out the foregoing sentence.
2.12 Fair Value. The City hereby finds and determines that the sale, lease or
transfer by the City of the Project Parcels pursuant to this Agreement is at its fair value.
2.13 Sewer Easement. The City shall grant to the Developer a storm sewer
easement across Outlot 4 and/or Outlot 5 Gallup University Riverfront Campus, as surveyed,
platted and recorded in Douglas County, Nebraska if Developer determines it is necessary or
desirable for taking storm drainage from the Project Area to the Missouri River. Such easements
shall be in form reasonably satisfactory to the Developer and the City.
2.14 Development Approvals. The City agrees to cooperate with Developer to
grant or obtain all Development Approvals such that the Project may be developed in accordance
with the Riverfront Place Redevelopment Agreement Site Plan.
2.15 Gallup Storm Sewer Removal and Relocation. On or before the date of
this Agreement, the City shall obtain all necessary easements, agreements, consents, approvals
and executions of all parties, including, but not limited to the City and Gallup, in form and
substance satisfactory to Developer in its sole discretion, necessary or desirable for completion
of that part of the Site Preparation consisting of removal and relocation of the Gallup Storm
Sewer, in accordance with the Riverfront Place Redevelopment Agreement Easement Plan, and
termination of the Gallup Storm Sewer Easement. The new easement for the relocated storm
sewer, to be granted on Project Parcel 4 in the location shown on the Riverfront Place
Redevelopment Agreement Easement Plan, shall not exceed 10 feet in width. The Developer
shall be responsible for the physical construction/relocation of the storm sewer.
2.16 Amendment to Gallup Redevelopment Covenants. The City shall
obtain all necessary agreements, consents, approvals and executions of all parties, including, but
not limited to the City and Gallup, that Developer, in its sole discretion, deems necessary or
desirable to modify the Gallup Redevelopment Covenants in order to expressly permit the land
uses contemplated for the Project and so that the Amendment to Gallup Redevelopment
Covenants when recorded will have a priority over any third party lien or interest. All such
agreements, consents, approvals and executions shall be obtained by the City not later than the
date of execution of this Agreement. The form of the Amendment to Gallup Redevelopment
Covenants attached hereto as Exhibit G, is acceptable to Developer. The Amendment to Gallup
Redevelopment Covenants shall be recorded by the City in the Register of Deeds of Douglas
County, not later than five(5) days after the date of this Agreement.
2.17 Architectural Approvals. The City shall cooperate with Developer in
obtaining conceptual architectural and site plan approvals of the Project from the Architectural
Review Committee as provided for in the Gallup Redevelopment Covenants, not later than the
date of execution of this Agreement. Such agreements, consents and approvals shall be in a form
acceptable to Developer.
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2.18 Riverfront Place Redevelopment Covenants. The Riverfront Place
Redevelopment Covenants shall benefit the Project Area and be binding on and burden the
Outlots 4 and 5, Gallup Riverfront Campus, as surveyed, platted and recorded in Douglas
County,Nebraska. The City shall execute and deliver the Redevelopment Covenants by the date
of Closing. When any of the property covered by the Riverfront Place Redevelopment
Covenants has been replatted, at the request of either the City or the Developer for the purpose of
ensuring that the Riverfront Place Redevelopment Covenants are recorded against and benefit
and burden all of the real estate intended to be covered thereby, the Riverfront Place
Redevelopment Covenants shall be amended and restated and recorded against all of such
property, describing such property as replatted, and all owners and holders of interests in such
property shall execute such amended or restated Riverfront Place Redevelopment Covenants for
that purpose.
2.19 Subsequent Action by City. Developer has entered into this Agreement
in reliance upon existing laws, ordinances, rules codes and regulations. If any subsequent law,
ordinance, rule, code or regulation shall require or permit Developer to perform any act or shall
prohibit Developer from performance any act such that Developer may be materially adversely
affected or such that Developer may be in material conflict with the terms of this Agreement, to
the extent permissible by law, the City shall not impose such law, ordinance, rule, code or
regulation with respect to this Agreement or the Project. If the City or Developer determines that
a material provision of this Agreement is affected by such changed or new law, ordinance or
regulation, the City and Developer shall enter into good faith negotiations to modify this
Agreement to conform with such changes requirements.
Section 3. OBLIGATIONS OF THE DEVELOPER.
3.1 Construction of Improvements. The Developer shall design and
construct buildings and improvements creating a minimum stipulated aggregate value for real
estate tax assessment purposes of $19,500,000 on Project Parcel 1, Outlot A and Outlot B;
$15,900,000 on Project Parcel 4, $2,300,000 on Project Parcel 5 and Outlot C; and, $1,600,000
on Project Parcel 2. Developer shall complete the improvements on Project Parcel 1, Outlot A
and Outlot B by the date set forth in the Schedule of Performance for Phase I. Developer shall
complete the improvements on Project Parcels 4 and 5 within twenty-four (24) months after the
associated TIF funds, for Project Parcels 4 and 5, are granted to developer pursuant to Section
2.11, above. The minimum stipulated aggregate value shall be allocated among each
condominium unit or separate tax parcel on a pro-rata basis, as determined by sales price (or for
unsold units comparable sales price). The amount so allocated to a particular condominium unit
or tax parcel shall be the minimum stipulated value for such condominium unit or tax parcel. The
Developer shall also construct related parking and other improvements, including landscaping.
Construction of the improvements shall be consistent with the Riverfront Place Redevelopment
Agreement Site Plan. Developer shall have the right to develop the Project Parcels in Phase II
for any uses allowable by applicable zoning. In the event the Developer does not construct the
residential improvements planned in Phase II, then the foregoing minimum tax valuation and
related TIF reimbursement amount shall be adjusted in accordance with the revised project.
Developer shall have the right to develop Project Parcel 2 for any uses allowable by applicable
zoning.
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3.2 [intentionally omitted]
3.3 Cash Payment for Land.
(i) As a part of the consideration for the conveyance of the Project
Area to the Developer, the Developer shall pay to the City the total
sum of $1,600,000 which amount shall be allocated among the
Project Parcels at Developer's discretion, provided, however the
amount allocated to Project Parcels 1, Outlot A and Outlot B, in
total, shall not be less than $450,000 and to Project Parcel 2 shall
not be less than $200,000. On the Closing Date for Phase I, the
Developer shall pay the $1,600,000 into escrow, to be held and
disbursed as provided herein, and the City shall convey the Phase I
Project Parcels. The amount of the purchase price allocated to the
Phase I Project Parcels shall be disbursed from escrow to the City,
at the time of closing. The escrowed deed for the Phase II Project
Parcels shall be delivered to Developer and the remaining
escrowed funds, and accrued interest shall be disbursed to the City
at the date designated by Developer in writing which shall in any
event not be later than three years after the certificate of occupancy
is issued for the Phase I residential tower.
(ii) If the Phase I TIF proceeds have not been disbursed to Developer,
then the Developer shall have the right to draw upon the escrowed
funds to pay for the costs of Phase I improvements shown on
Exhibit E and to the extent such funds are disbursed, the
Developer shall be deemed to have assigned an equal dollar
amount of Developer's share of TIF proceeds for Phase I to the
City. The Developer and City shall provide joint instructions to the
escrow agent to carry-out the terms of this Section.
(iii) The Developer shall have the right to withdraw the escrowed funds
and substitute in place thereof an evergreen letter of credit in a
form, and issued by a financial institution, reasonably acceptable to
the City, provided, however, such withdrawn funds may be used
only for the Project.
3.4 Streets. The Developer shall construct and complete the Riverfront Plaza
on Outlot A, as shown on the Riverfront Place Redevelopment Agreement Site Plan, and all
related improvements, including but not limited to paving, integral curbs and gutter, sidewalks,
signage, site lighting and signage, landscaping, and utilities (water, electric, telephone, cable t.v.,
gas, storm and sanitary) and the modification to Riverfront Drive (parallel parking, sidewalks
and landscaping). Ornamental street lighting for Riverfront Place shall be in conformance with
City standards using poles and fixtures of design reasonably acceptable to the Developer.
Sidewalks are to be provided along all streets within the Redevelopment Plan Area. Traffic
signage and control devices for the Redevelopment Plan Area shall conform to the Riverfront
Place Redevelopment Covenants and City standards for public safety and maintenance.
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3.5 Public Plaza Area Riverwalk Recreational Trail. The Developer shall
construct the public plaza and riverwalk recreational trail referred to in Section 2.5 in accordance
with the Riverfront Place Redevelopment Agreement Site Plan and grant the City an easement
for the public use of the recreational trail and an access and maintenance easement across the
public plaza to provide public access to the recreational trail from Riverfront Plaza. Any other
public use of the public plaza shall be only as agreed to by the City and the Developer from time
to time.
3.6 Bridge Landing View Corridor Development and Maintenance.
Developer shall design, construct, install and maintain landscaping on the Bridge Landing View
Corridor. The Developer agrees that such landscaping shall be harmonious and compatible with
the improvements and landscaping and other improvements in the Bridge Landing Parcel. The
Developer agrees to cooperate with the City in creating and maintaining a smooth surface grade
transition between the Bridge Landing Parcel and the Project Area.
3.7 Site Preparation. Any Site Preparation which has not been completed as
of the date of this Agreement may be completed by Developer. The City shall reimburse
Developer for Developer's costs in completing any Site Preparation on a monthly basis based on
percentage of completion of the particular Site Preparation work undertaken. The Developer
shall provide the City with reasonably satisfactory documentation of such costs.
3.8 Certain Agreements Regarding TIF Financing. While the TIF Bonds
issued with respect to specific portions of the Project Area are outstanding, the Developer, or its
successors as provided below, shall as to the relevant portion of any of the Project Area which it
owns and for which such bonds were issued:
(i) pay all real estate taxes before delinquent;
(ii) not convey the Project Area, or any portion thereof, to any entity
which would cause the Project Area to be exempt from full ad
valorem real estate taxes on the improvements thereto, except for
any public dedication of right of ways or easements contemplated
in this Agreement;
(iii) not lease the Project Area, or portion thereof, to any entity which
would cause the improvements to be taxed separately and diminish
the full ad valorem real estate tax value;
(iv) maintain insurance for the full value of the structures on the
Project Area. In the event of casualty, the Developer shall cause
equivalent value of improvements to be reconstructed, or shall
escrow funds sufficient to amortize the outstanding TIF Bonds;
and,
(v) not protest the real estate assessed value in the amount, or less than
the amount of the valuation set out in Section 3.1 above as to the
Project Area.
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Each of the foregoing covenants set forth in this Section 3.8 shall run with the
land and be binding on subsequent owners of the Project Area, or any part thereof as long as any
TIF Bond is outstanding, and shall be referenced in a Notice of Redevelopment Agreement to be
recorded in the office of the Register of Deeds of Douglas County, Nebraska after the final plat
of the Project Area is recorded in the office of the Register of Deeds of Douglas County,
Nebraska. Without the prior written consent of the City and the Developer, until the final plat of
the Project Area is recorded, neither this Agreement nor any memorandum of this Agreement
shall be recorded. The Developer, or its successors, as the case may be, agree to include the
covenants set forth in this Section in any subsequent sale, assignment, sale-leaseback or other
transfer of any portion of the Project Area and shall thereupon be released from any further
responsibility with respect to such covenants insofar as they apply to the portion of the Project
Area so transferred.
3.9 Penal Bond. The Developer shall provide the City with a penal bond as
required by § 18-2151 of the Redevelopment Law in an amount mutually acceptable to the City
and the Developer. A reasonably sufficient payment and performance bond from the Developer's
general contractor or contractors will satisfy this requirement.
3.10 Contingencies. City acknowledges that the Project Area may be of no use
to Developer unless certain conditions precedent to such use exist. Developer's obligation to
close the transaction contemplated herein shall therefore be conditioned upon Developer
satisfying itself that the following contingencies are met:
(a) Developer has received all Development Approvals pertaining to the use and
development of the Project Area, including the approval by all required governmental authorities
of the Redevelopment Plan, none of which shall be subject to any conditions, limitations or
requirements not acceptable to Developer in its absolute discretion. The appeal period for all of
the Development Approvals must have expired without challenge or contest.
(b) Developer may use the Project Area for its purposes without being in violation of
any zoning classification, land use classification, environmental requirement, or any other land
use classification or building classification or requirement established by any entity or authority
having legal jurisdiction or authority thereover. The availability or probability of the issuance of
a variance or special use permit necessary to satisfy this condition shall not be considered
sufficient unless the actual issuance thereof is or will be unconditional. In addition, Developer
must be satisfied that as of the date of Closing, the Riverfront Place Redevelopment Agreement
Site Plan has been or will be approved, with no condition, limitation or requirement not
acceptable to Developer in its absolute discretion, and if it applied for or were to apply for a
building permit for the Project improvements, its sign permit and all other permits for
construction of improvements and paid all required application fees, Developer would be entitled
to obtain a building permit, sign permit and all other permits without further act, assuming the
Project improvements complied with all applicable building codes, existing as of the date of this
Agreement.
(c) The construction of the Project improvements contemplated by Developer will not
require extraordinary, excessive, or unusually costly construction techniques, and drainage of
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both surface and subsurface water can be accomplished by ordinary construction techniques not
involving unusual or excessive costs.
(d) At the time of Closing, all utilities, including electricity, gas, water (fire and
domestic), storm and sanitary sewer will be available at the boundary line of the Project Area or
within the street right-of-way adjacent thereto. All utilities serving the Project Area shall be in
size and capacity sufficient for the operation of the Project Area, and Developer will be
immediately entitled to connect into such utilities.
(e) Developer shall be satisfied that City has secured all Development Approvals and
that City has secured all other approvals and consents necessary from all third parties for
Developer to construct its improvements and to operate its business on the Project Area.
(f) Developer shall be satisfied with the matters and conditions disclosed by the
engineering and environmental reports, investigations and tests received or performed by
Developer.
(g) Developer shall have closed on a construction loan for the improvements on the
Project Parcels to be developed on terms and conditions acceptable to Developer, at its sole and
absolute discretion.
(h) Developer shall have entered into binding agreements of sale for not less than
60% of the condominium units to be constructed on Project Parcel 1.
3.11 Replatting and Rezoning. The Developer shall replat and rezone the
Project Area MU-CBD in accordance with the Riverfront Place Redevelopment Agreement Site
Plan by the date indicated in the Schedule of Performance, defined below. The City agrees to
cooperate with the Developer in such replatting and rezoning and agrees to sign the plat and all
other agreements reasonably necessary to carry out this Section 3.11.
3.12 Riverfront Place Redevelopment Covenants. The Developer shall
execute and agree to be bound by the Riverfront Place Redevelopment Covenants by the date set
forth in the Schedule of Performance.
Section 4. PROVISIONS OF THE CONTRACT.
4.1 Schedule of Performance. The City and the Developer intend that the
planning and development of Phase I shall be achieved pursuant to the Schedule of Performance
attached hereto as Exhibit D. From time to time following the date of this Agreement, however,
the Developer and the City may, by mutual written agreement, refine and revise the Schedule of
Performance as may be necessary to accommodate any unforeseen factors, events or unexpected
occurrences which may necessitate such refinement or revision. All actions required to be taken
by the City and the Developer pursuant to the terms of this Agreement shall be taken in
accordance with the Schedule of Performance in existence at the time when such performance is
required. The Developer and the City shall each use their best efforts to ensure that development
of the Project Area occurs in accordance with the Schedule of Performance.
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4.2 Failure of Timely Performance. Subject to force majeure or economic
impracticability as set forth in Sections 4.3 and 4.4 below, in the event that either party fails to
perform any of its obligations which are set forth in or contemplated by this Agreement or in the
Schedule of Performance in a timely manner, and should such failure not otherwise be excused
by agreement of the parties or by the terms of this Agreement, such failure shall be considered to
be a breach of this Agreement and the nonbreaching party shall have their respective remedies
set forth in this Agreement.
4.3 Excused Delay in Performance. In addition to the specific provisions of
this Agreement, the performance by either party hereunder shall not be deemed to be a default
where delays or defaults are due to war, insurrection, terrorism, strikes, lockouts, riots, floods,
earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine
restrictions, freight embargoes, lack of transportation, governmental restrictions or priority(other
than restrictions or priorities of the City, which shall not excuse performance by the City, unless
the result of a board or agency of the City exercising its legislative or administrative discretion in
good faith), unusually severe weather, inability (when the party required to perform is faultless)
of any contractor, subcontractor or supplier to perform acts for such party, or acts or the failure
to act of any public or governmental agent or entity (other than acts or failure to act of the City,
which shall not excuse performance by the City, unless the result of a board or agency of the
City exercising its legislative or administrative discretion in good faith), litigation relating to the
Project Area initiated by a third party other than Developer or the City (and where the party
hereto is without fault in connection with such litigation), or any other causes beyond the control
or without the fault of the party claiming an extension of time to perform. In the event that one
party to this Agreement is unable or fails to perform due to an event constituting force majeure
as provided above, and such excused delay is the proximate cause of the other party being unable
or failing to perform in accordance with the terms of this Agreement, then the time for the
performance of the other party shall be extended for a period of time equal to the period of the
delay plus a reasonable start-up period. An extension of time for any such cause shall only be for
the period of the forced delay, which period shall commence to run from the time of the
commencement of the cause. No party hereto shall be liable to any other party hereto for direct
or consequential damages suffered or incurred as the result of delays in completion of the Project
proximately caused by an event constituting force majeure as provided above. However, the
party whose performance hereunder is thus impeded shall use reasonable efforts to eliminate or
overcome such delays.
4.4 Economic Impracticability. The City hereby acknowledges that
circumstances and events may occur whereby the Developer determines, for reasons of market
considerations, adverse interest rates or other market factors, that it is no longer economically
feasible to pursue or complete the development of Phase I in accordance with this Agreement
and/or the Schedule of Performance. Without limiting the generality of the foregoing, the parties
agree that a delay in construction of the pedestrian bridge over the Missouri River beyond the
time set forth in the Schedule of Performance is a circumstance that would justify a
determination by the developer of economic impracticability, however the Developer shall not be
entitled to claim monetary damages against the City for such a delay. In the event that the
Developer makes such a determination and provides notice of such to the City, the City and
Developer shall work together to mutually agree to a suspension of the Developer's performance
for a reasonable period of time, and a like suspension for any performance required of the City
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where performance by the Developer is practically required or is required as a condition
precedent to the City's obligation to perform, whereupon the Schedule of Performance shall be
accordingly revised. In the event that the Developer and the City are unable to agree upon a
reasonable revised Schedule of Performance, and either Developer or the City reasonably believe
that the economic considerations of development of the Project Area can be cured by further
modifying Agreement, then, in that event, the City and the Developer shall meet in good faith
and attempt to resolve such economic infeasibility by, among other things, reallocating uses of
Phase I or processing further modifications and amendments to the Agreement as may be
reasonable to permit economically feasible development thereof. If the Developer and the City
are unable to agree upon a reasonable revised Schedule of Performance and neither party
believes the economic considerations of development of the Phase I can be cured by further
modifying the Agreement, the Developer shall have the right to terminate this Agreement by
written notice to the City; provided, however, that the City shall thereupon have the right to
repurchase the Project Area pursuant to the City's rights and subject to the limitations thereon set
forth in Section 4.23 below.
4.5 Delays; Termination. Delivery of the Project Area to the Developer in
the condition required by this Agreement on a timely basis is of the essence of this Agreement.
Accordingly, if the City fails for any reason whatsoever other than default by the Developer in
the performance of its obligations hereunder, including reasons caused by events constituting
force majeure, to convey and deliver the Project Area to the Developer within the time period set
forth in this Agreement (without extension of time due to events constituting force majeure),
then without limiting any other remedy available to the Developer on account of such failure, at
any time prior to conveyance and delivery of the Project Area to the Developer in the condition
required by this Agreement, the Developer shall have the right to terminate this Agreement by
written notice to the City, whereupon the Developer shall have no further obligations under this
Agreement. In addition to other remedies available to Developer, if the Developer elects to
terminate this Agreement pursuant to this Section, unless the City's failure to timely convey and
deliver the Project Area in the condition required by this Agreement was due to events
constituting force majeure, or are the result of a board or agency of the City exercising its
legislative or administrative discretion in good faith, the City shall reimburse the Developer for
all actual out-of-pocket expenses incurred, after November 5, 2003 (being the date the City
selected Developer to develop the Project), by the Developer to third parties in connection with
the planning, design and implementation of the Project and the negotiation, preparation and
approval of the Redevelopment Plan and this Agreement by the City, including but not limited to
real estate development consulting fees, sales and marketing costs, travel costs, and fees of
architects, engineers, attorneys, accountants and other professionals.
4.6 Notice and Cure. In the event Developer is in default of an obligation
under this Agreement, or has failed to perform any obligation under this agreement, including
but not limited to a failure to timely act or complete performance of an obligation, no such
failure or default shall give rise to any rights of City to terminate or otherwise enforce this
Agreement unless City shall have first notified Developer of such failure or default in writing,
and Developer shall have, thereafter failed to cure such failure or default within one hundred and
eighty (180) days after receipt of such notice from City. In the event City is in default of an
obligation under this Agreement, or has failed to perform any obligation under this agreement,
including but not limited to a failure to timely act or complete performance of an obligation, no
20
such failure or default shall give rise to any rights of Developer to terminate or otherwise enforce
this Agreement unless Developer shall have first notified City of such failure or default in
writing, and City shall have, thereafter failed to cure such failure or default within sixty(60) days
after receipt of such notice from Developer provided however, the foregoing notice and cure
period shall not apply to the City's obligation to convey title to the Project Area to Developer.
4.7 Equal Employment Provisions. Attached hereto as Exhibit F are the
equal employment provisions of this Agreement, wherein the Developer is referred to as the
"Contractor."
4.8 Nondiscrimination. The Developer shall not in the performance of this
Agreement discriminate or permit discrimination in violation of federal or state laws or local
ordinances because of race, color, sex, age, disability, political or religious affiliations, or
national origin.
4.9 Captions. Captions used in this Agreement are for convenience and are
not to be used in the construction of this Agreement.
4.10 Compliance with Law. Each party hereto shall perform its obligations
under this Agreement in accordance with all existing and applicable City ordinances, resolutions,
state laws, federal laws, and all existing and applicable rules and regulations. Nebraska law will
govern the terms and performance under this Agreement.
4.11 Section 8.05 of Home Rule Charter. Pursuant to Section 8.05 of the
Home Rule Charter, no elected official or any officer or employee of the City shall have any
financial interest, direct or indirect, in any City contract. Any violation of this section with the
knowledge of the person or corporation so contracting with the City shall render the offending
contract voidable by the City Council.
4.12 No Merger. This Agreement shall not be merged into any other oral or
written contract, lease, or deed of any type delivered in connection herewith unless otherwise
specifically agreed.
4.13 Severability. In the event any clause or provision in this Agreement is
held to be illegal, invalid or unenforceable by a court of competent jurisdiction, or by other
governmental authority with jurisdiction thereof, the remaining portion of this Agreement shall
not be affected thereby. The parties hereto agree that, in lieu of such illegal, invalid or
unenforceable clause or provision, a provision that is legal, valid and enforceable, with as
substantially similar terms as possible, shall be inserted in place thereof.
4.14 Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof and there are no agreements, either oral or
written, between them other than as set forth in this Agreement. This Agreement supersedes and
revokes all previous negotiations, arrangements, letters of intent, offers, proposals,
representations, promises, understandings, and agreements, whether oral or in writing, between
the parties hereto, their respective representatives or any other person purporting to represent the
parties hereto. No agent, employee, or other representative of any party is empowered to alter
21
any of the terms hereof unless done in writing and signed by an authorized officer of the
respective parties.
4.15 Multiple Counterparts. This Agreement may be executed by the parties
hereto on separate counterparts, each of which when so executed and delivered shall be an
original,but all such counterparts shall together constitute but one and the same instrument.
4.16 Administrative Amendments. The parties hereto recognize that certain
administrative amendments may need to be made to this Agreement in order to carry out the
intent of this Agreement and the Redevelopment Plan. In that regard, the parties hereto hereby
nominate the following individuals, or their successors, to be their respective authorized
representatives, acting in their specific capacities, to execute any such administrative
amendments to this Agreement on their behalf:
For the City: The Mayor
For the Developer: Kim R. McGuire and Ross L. Robb
The parties hereto recognize that any such amendments to this Agreement negotiated and
executed by the parties' respective representatives, other than those defined in § 18-2117 of the
Redevelopment Law, shall be considered and treated as administrative in nature and not as a
legislative amendment to this Agreement or the Redevelopment Plan. However, amendments of
the following types shall be referred to the City Council for approval:
(i) Those that materially alter or reduce existing areas or structures
otherwise available for public use or access;
(ii) Those that require the expenditure of$75,000.00 or more of City
funds above the levels contained in this Agreement; and
(iii) Those that increase City loans, bonded indebtedness, deferred
payments of any types, or other financial obligations above the
levels contained in this Agreement.
4.17 Delegation of Developer's Duties; Assignment of Rights. Developer
shall have the right from time to time, to delegate some or all of Developer's duties hereunder to
any one or more persons or entities Developer believes to be creditworthy, qualified, and capable
of performing duties delegated to it. Developer shall give the City reasonable prior notice and
information concerning the identity, creditworthiness, and qualifications of any party to whom
Developer delegates any of its duties hereunder. The Developer's rights under this Agreement are
assignable in whole or in part. Such delegations and assignments may include, but shall not be
limited to: assignments and delegations to a master property owner's association and/or a
condominium unit owners association created in conjunction with development of the Project;
and, assignments and delegations to persons or entities for the purpose of owning, managing,
developing and redeveloping particular Project Parcels or portions thereof. Developer shall also
provide the City with a true and complete copy of documentation evidencing such a delegation
of duties promptly after it has been executed by the parties thereto. The Developer shall give the
City prompt notice of any such assignment. Until such a notice of an assignment has been given
22
to the City, the City shall have the right to deal with the Developer as the owner of the rights of
the Developer under this Agreement and shall have no liability to any third party on account of
any such dealing with the Developer prior to receipt of such notice of assignment. Assignment
of the rights to develop Phase I and/or Phase II to a third party (other than a third party that is
owned by Developer or is controlled by the same parties that control Developer), shall be made
only with the consent of the City, which consent shall not unreasonably be withheld.
4.18 Remedies. The parties understand and agree that with respect to the
various obligations of the parties hereunder, time is of the essence, and in the event that any
party hereto shall fail to carry out any of its obligations under this Agreement, the remaining
parties hereto may have no adequate remedy at law. Therefore, the parties hereto shall be
entitled to enforce the obligations of any defaulting party under this Agreement pursuant to all
available equitable remedies, including, but not limited to, specific performance, injunction, and
mandamus together with their remedies at law, including but not limited to,money damages.
4.19 Survival. All of the obligations, warranties, and indemnities of the parties
to this Agreement shall survive all conveyances of real estate required pursuant to this
Agreement.
4.20 No Reliance on Others. Except for any specific representations and
warranties set forth in this Agreement, each party hereto agrees that it is relying on its own
opinions, estimates, studies, and information with regard to such party's respective obligations
under this Agreement and no party hereto or its agents or contractors shall be responsible or
liable for estimates or opinions of costs given to other parties in connection herewith.
4.21 Legal Opinions. Each party to this Agreement shall deliver to the other
parties to this Agreement the legal opinion of its respective counsel, in form and substance
reasonably satisfactory to the other parties hereto, which opinions shall be to the following effect
as indicated for that respective party. The opinion of the City Attorney shall expressly state that
it may be relied on by the Developer and any future owner or mortgagee (including the
beneficiary under a deed of trust) of the Project Area, or any part thereof.
4.21.1 In the case of the City:
(i) that it is a duly created and validly existing body corporate and
politic and a city of the metropolitan class of the State of Nebraska;
(ii) that the execution, delivery, and performance of this Agreement by
it has been duly authorized and approved by all necessary
governmental action required to be obtained or taken by it and that
this Agreement and any agreements, documents, or commitments
executed or delivered pursuant hereto are the legal, valid, and
binding obligations of it, enforceable in accordance with their
terms, except as may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium, and other similar laws
affecting the enforcement of creditors' rights generally and
principles of equity; and
23
(iii) that the negotiation, approval, execution, delivery, and
performance by it of this Agreement in any agreements,
documents, or commitments executed or delivered pursuant hereto
do not and will not violate or breach (a) any other oral or written
agreement to which it is bound, (b) the City ordinances, the City
Charter, the Nebraska statutes governing the rights and authority of
cities of the metropolitan class or the Constitution of the State of
Nebraska, or(c) to the best of counsel's knowledge any other laws,
statutes, rules, regulations,judgments, or orders applicable to it.
4.21.2 In the case of the Developer:
(i) that it is duly organized and validly existing, under applicable
laws;
(ii) that the execution, delivery, and performance of this Agreement by
it has been duly and validly authorized and approved by all
necessary corporate or company action required to be obtained or
taken by it and that this Agreement and any agreements,
documents, or commitments executed or delivered pursuant hereto
are the legal, valid, and binding obligation of it, except as may be
limited by applicable bankruptcy, reorganization, insolvency,
moratorium, or similar laws affecting the enforcement of creditors'
rights generally and principles of equity; and
(iii) that the negotiation, approval, execution, delivery, and
performance by it of this Agreement, and any agreements,
documents, or commitments executed or delivered pursuant hereto
do not and will not violate or breach (a) any other oral or written
agreement to which it is bound, (b) its Articles of Organization or
Operating Agreement, or (c) to the best of counsel's knowledge,
any other ordinances, laws, statutes, rules, regulations, judgments,
or orders applicable to it.
4.21.3 Such opinions shall be delivered by and to the respective parties
hereto within fifteen (15) days after this Agreement has been executed by each of the parties
hereto.
4.22 Cooperation and Coordination. The City and the Developer shall
cooperate with each other and seek to coordinate their respective demolition, utility relocation,
removal, and construction activities hereunder so as to minimize to the extent reasonably
practical the costs of such work for all parties and to expedite the work; provided that the
foregoing shall not be construed to permit or require that the Developer consent to any delays or
extensions of the times set forth herein for the City to commence or complete their respective
obligations under this Agreement.
24
4.23 City Reacquisition Right. If Developer fails to obtain a building permit
for the contemplated improvements on Project Parcel 1 and commence construction of the
improvements on Project Parcel 1 by the time required in the Schedule of Performance (as such
date may be extended or modified by other provisions of this Agreement), and the City is not
then in default in the performance of any of its other obligations under this Agreement, then the
City shall have the right, exercisable by written notice to the Developer, to obtain a
reconveyance of the Project Area at the price set forth in Section 3.3. For purposes hereof, the
Developer shall be deemed to have commenced construction of the improvements if construction
of the footings and foundations for the improvements has commenced. If the City exercises such
right to reacquire, the Developer shall reconvey the Project Area to the City by special warranty
deed, subject to easements, restrictions, covenants, and other encumbrances of record as of the
date of conveyance of the Project Area to the Developer, or thereafter created pursuant to this
Agreement or otherwise approved or consented to by the City, and any other easement,
restriction, covenant, or encumbrance of record not materially adversely affecting marketability
of title to the Project Area. If the City exercises such right to reacquire, the rights and
obligations of the Developer pursuant to this Agreement shall terminate as of the date of
conveyance of the Project Area to the City. The City's right to reacquire the Project Area shall
terminate if not exercised as of the date of commencement of construction of any improvements
on Parcel 1. Further, the City agrees that the City will execute and deliver to the Developer and
any lender providing financing for improvements to be constructed on any Project Parcel(s), a
written instrument releasing and terminating the City's right to reacquire the Project Area
pursuant to this paragraph upon receipt by the City of reasonably satisfactory evidence that
financing for construction of the buildings on Project Parcel 1 has been committed to or agreed
upon by a financially responsible lender and the Developer is prepared to commence
construction within the next one hundred twenty (120) days; provided, however, that if
construction of the building has not commenced within one hundred twenty (120) days after
delivery of such release by the City, the City's right to reacquire pursuant to this paragraph shall
be reinstated.
Section 5. NOTICES. Any notice, demand, consent, or approval required or
permitted to be given by this Agreement shall be in writing and either sent by United States
certified mail, postage prepaid, or hand delivered to the other party at the following address or at
such other address as the party may specify by notice given in like manner:
City: City of Omaha
Omaha City Attorney
Omaha/Douglas Civic Center
1819 Farnam Street
Omaha,NE 68183
Developer: Kim R. McGuire
P.O. Box 505
Park City, Utah 84060
And Ross L. Robb
Benton-Robb Development Associates
180 So. Ash Ave.
25
Tempe, AZ 85281
Section 6. EXHIBITS. The exhibits attached to this Agreement and referred to
herein are part of this Agreement and are incorporated herein by reference.
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
set forth beneath their respective signatures, the latter of which shall be considered the date of
this Agreement for reference purposes.
THE CITY OF OMAHA,NEBRASKA
ATTES : --
By: 11"-4--4-• )11,4-42/ 7/2 .0)Z
City Clerk Title: /�ify4
A d as to Form RIVERFRONT PARTNERS LLC,
a Nebraska limited liability company
By: e �
Kim R. McGuire, Member
Ci ttomey
Robb M - n ent Services,Inc.,Member
By: i<���
Ross L.Robb,President
John C. Kinnear,III,Member
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me on c7
2004, by .Pi/t...-1-t.) , who is the Mayor of the City o Omaha, Nebraska,
on behalf of the City of Omaha,Nebraska.
GENERAL NOTARY-State of Nebraska �y
CYNTHIA I.FORD
My Comm.Exp.Aug.16,2007 Notary Public
My Commission expires: Si l `6 '7
27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
set forth beneath their respective signatures, the latter of which shall be considered the date of
this Agreement for reference purposes.
THE CITY OF OMAHA, NEBRASKA
ATTEST:
By:
City Clerk Title:
Approved as to Form RIVERFRONT PARTNERS LLC,
a Nebraska limited liability company
By:
Kim R. McGuire, Member
City Attorney
Robb Management Services, Inc., Member
By:
Ross L. Robb, President
J hn C. Kinnear, Ill, Member
•
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me on
2004, by , who is the Mayor of the City of Omaha, Nebraska,
on behalf of the City of Omaha, Nebraska.
Notary Public
My Commission expires:
27 •
STATE OF W(1 )
)
COUNTY OF. r -)ss.
The foregoing instrument was acknowledged before me orj3 l9 411, , 2004,
by Kim R. McGuire, , of , as a Member of
Riverfront Partners LLC, a Nebraska limited liability company, on behalf of the limited liability
company.
=�*�• SUSAN IRWIN
J't: NO?AAYPUBiIC•STATE of UTAH
i; .�'4 900 W BITNER RD#H35
PARK CITY UT 84098
•�` `+, COMM.EXP.09/03/2004 i6( _A-A—A.
1�2 o ublic
My Commission expires: Ct"V:J
STATE OF ( )
) ss.
COUNTY OF( )
The foregoing instrument was acknowledged before me on CiL)I (p' Y , 2004,
by
Ross L. Robb President of Robb Management Services, Inc., as a Ivtember of Riverfront
Partners LLC,a NcbLaska company,on behalf of the limited liability company.
.� .*.•T..9.• SUSAN IRWIN
�,r' NOTARY •STATE.; •-.•_.. of UTAH
900 W BITNER RD#H35
+ PARK CITY UT 84098
' COMM.EXR 09/03/2004 �Ae6f,Sq
2 q�� ublic
-
My Commission expires: C:( -t)✓ /
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on , 2004,
by John C. Kinnear, III, , of , as a
Member of Riverfront Partners LLC, a Nebraska limited liability company, on behalf of the
limited liability company.
Notary Public
My Commission expires:
28
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on , 2004,
by Kim R. McGuire, , of , as a Member of
Riverfront Partners LLC, a Nebraska limited liability company, on behalf of the limited liability •
company.
Notary Public
My Commission expires:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on , 2004,
by Ross L. Robb, President of Robb Management Services, Inc., as a Member of Riverfront
Partners LLC, a Nebraska limited liability company, on behalf of the limited liability company.
Notary Public
My Commission expires:
•
STATE OFC Ji '$N1 c` )
) ss.
COUNTY OFScvr4u R. \,a t
The foregoing instrument was acknowledged before me on J uklui -7 , 2004,
by John C. Kinnear, III, Me v,A.\o e v- , of t(Li.A.s-r Pct i erg , as a
Member of Riverfront Partners LLC, a Nebraska limited liability company, on behalf of the
limited liability company. •
Notary Public
My Commission expires. 2. -0 .-.,,� USA K.D'ANOREA
1• Commission* 1441240
r Notary Public -California
Santa Barbara County
My Cornm.ExpiresSep 23,2037
28
EXHIBIT A
RIVERFRONT PLACE REDEVELOPMENT AGREEMENT SITE PLAN
EXHIBIT B
RIVERFRONT PLACE REDEVELOPMENT AGREEMENT EASEMENT PLAN
EXHIBIT C
CURRENT SITE CONDITIONS
EXHIBIT D
SCHEDULE OF PERFORMANCE
EXHIBIT E
PUBLIC IMPROVEMENT COST SCHEDULE
EXHIBIT F
EQUAL EMPLOYMENT OPPORTUNITY CLAUSE
EXHIBIT G
AMENDMENT TO GALLUP REDEVELOPMENT COVENANTS
EXHIBIT H
29
RIVERFRONT PLACE REDEVELOPMENT COVENANTS
EXHIBIT_I
ENVIRONMENTAL COVENANTS
30
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EXHIBIT A-1
LEGAL DESCRIPTION Plat Boundary
Lots 16 and 18, GALLUP RIVERFRONT UNIVERSITY CAMPUS, a subdivision, as
surveyed, platted and recorded in Douglas County, Nebraska, described by metes and bounds
as follows:
Beginning at the southwest corner of Lot 5, GALLUP RIVERFRONT UNIVERSITY
CAMPUS;
Thence South 76°37'49" East (bearings referenced to the Final Plat of GALLUP
RIVERFRONT UNIVERSITY CAMPUS) for 669.67 feet along the south line of Lots 3, 4 and 5,
GALLUP RIVERFRONT UNIVERSITY CAMPUS to the northwest corner of Outlot 4, GALLUP
RIVERFRONT UNIVERSITY CAMPUS;
Thence South 19°05'20" West for 76.79 feet along said west line to an angle point
therein;
Thence South 14°48'59" West for 122.74 feet along said west line to the northwest
corner of Outlot 5, GALLUP RIVERFRONT UNIVERSITY CAMPUS;
Thence South 17°51'06" West for 192.58 feet along the west line of Outlot 5 to the
northeast corner of Lot 19, GALLUP RIVERFRONT UNIVERSITY CAMPUS;
Thence South 87°31'46" West for 86.44 feet along said north line;
Thence along a curve to the left (having a radius of 191.00 feet and a long chord bearing
South 77°19'13" West for 362.80 feet) for an arc length of 478.41 feet along said north line;
Thence along a curve to the right (having a radius of 193.00 feet and a long chord
bearing North 77°35'17" West for 124.84 feet) for an arc length of 127.12 feet along said north
line to the east right of way line of Riverfront Drive;
Thence North 02°33'51" East for 586.49 feet along said east right of way line to the Point
of Beginning.
Contains 6.182 acres.
NOTE: The above Description is over Lots 1 through 6, inclusive, AND Outlots A, B, and C, in
proposed RIVERFRONT PLACE.
April 23,2004
LAMP, RYNEARSON&ASSOCIATES,INC.
03075.01 003 (Entire Boundary)
I Point of Beginning #2 `, t
S487.36'40"E.
� '; rn 6 R=50.00'
S87'26'09"E S23'05'4 6"E
^ S66. E
z . 69.67, C=99.34
11 ' .OUTLOT C
5
O ; PHASE 2 IP
OUTLOTA
2300,3E
R=118.50 ,v0 d-
w S68'01 25' E co "
C=78.77' dp
L=80.30'1 i\
OUOT B .
TL
O rp' 2 cp
PHASE 1 ��cv ��
Point of n 0
Beginning #1 of
-R=191.00'
' f\149'50'05"W S87'31'46'W
/ / ,C=123.81' 86.44' /
,' /' L=126.08' '.qui:.
'' • -•-...-1\,, R=191.00'
/ S58'24'33"W
C=304.46'
L=352.33'
N
N7T35'17"W,'
--, C=1'24.84' /
i L=127.12' / 100 50 0 100
r
Riverfront I Partners, LLC
Riverfront Place Redevelopment Plan Area
03075\dwg\0375bnd1.dwg
Boolc Page Date 4/21/04 Dwn By CTM Job Number 03075.01-003
J (4_, Lamp, Rynearson & Associates, Inc. WWW.LRA-INC.COM
14710 West Dodge Road, Suite 100 (Ph) 402.496.2498
Omaha, Nebraska 68154-2027 (Fax) 402.496.2730 J
' u
LEGAL DESCRIPTION Phase 1
That part of Lots 16 and 18, GALLUP RIVERFRONT UNIVERSITY CAMPUS, a
subdivision, as surveyed, platted and recorded in Douglas County, Nebraska, described as
follows:
Beginning at the northwest corner of said Lot 19, GALLUP RIVERFRONT UNIVERSITY
CAMPUS;
Thence North 02°33'51" East (bearings referenced to the Final Plat of GALLUP
RIVERFRONT UNIVERSITY CAMPUS) for 506.53 feet along the east right of way line of
Riverfront Drive;
Thence South 87°26'09" East for 17.50 feet;
Thence along a curve to the right (having a radius of 118.50 feet and a long chord
bearing South 68°01'25" East for 78.77 feet) for an arc length of 80.30 feet;
Thence South 48°36'40" East for 81.37 feet;
Thence South 67°58'33" East for 230.01 feet;
Thence along a curve to the right (having a radius of 50.00 feet and a long chord bearing
South 23°05'46" East for 99.34 feet) for an arc length of 168.54 feet;
Thence South 22°01'2close7" West for 120.46 feet to the north line of said Lot 19;
Thence along a curve to the left (having a radius of 191.00 feet and a long chord bearing
South 58°24'33" West for 304.46 feet) for an arc length of 352.33 feet along said north line;
Thence along a curve to the right (having a radius of 193.00 feet and a long chord
bearing North 77°35'17" West for 124.84 feet) for an arc length of 127.12 feet along said north
line to the east right of way line of Riverfront Drive;
Thence North 02°33'51" East for 586.49 feet along said east right of way line to the Point
of Beginning.
Contains 3.189 acres.
NOTE: The above Description is over Lot 1 AND Outlots A and B, in proposed RIVERFRONT
PLACE.
April 23,2004
LAMP, RYNEARSON&ASSOCIATES,INC.
03075.01 003 (Phase 1 Boundary)
LOu
\ \ Lou 4 LnF, 3
i
I `
, f
/
1 S87'26'09"E ". ....�` `, I'
17.50' R=118.50' i 1
. : S68'01'25"E - ,` / 1
C=78.77'
q L=80.30'
S48'36'40"E
. 81 .37'
O
r ____________________________________
S23'05'46"E
C=99.34'
L=168.54'
w
in (.0 01.it. oi., 4
N S
o
Z PHASE 1
OUTLOT n ^a
O cS
Nry cv
Point of
Beginning Phase
=191.00' ,. ' •
S58'24'33"W -__ ____,/R=193.00' C=304.46'
N77'35'17"W L=352.33' /
•
L=127.12'
- '✓ c l N
1 ' ", / / 100 150 0 100
l
Riverfront Partners, LLC
Riverfront Place Redevelopment Plan Area — Phase 1
03075\dwg\0375bnd1A.dwg
Book Page Date 4/21/04 Dwn.By CTM Job Number 03075.01-003
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14710 West Dodge Road, Suite 100 (Ph) 402.496.2498
Omaha, Nebraska 68154-2027 (Fax) 402.496.2730 J
LEGAL DESCRIPTION Phase 2
That part of Lots 16 and 18, GALLUP RIVERFRONT UNIVERSITY CAMPUS, a
subdivision, as surveyed, platted and recorded in Douglas County, Nebraska, described as
follows:
Beginning at the southwest corner of Lot 5, GALLUP RIVERFRONT UNIVERSITY
CAMPUS;
Thence South 76°37'49" East (bearings referenced to the Final Plat of GALLUP
RIVERFRONT UNIVERSITY CAMPUS) for 669.67 feet along the south line of Lots 3, 4 and 5,
GALLUP RIVERFRONT UNIVERSITY CAMPUS to the northwest corner of Outlot 4, GALLUP
RIVERFRONT UNIVERSITY CAMPUS;
Thence South 19°05'20" West for 76.79 feet along said west line to an angle point
therein;
Thence South 14°48'59" West for 122.74 feet along said west line to the northwest
corner of Outlot 5, GALLUP RIVERFRONT UNIVERSITY CAMPUS;
Thence South 17°51'06" West for 192.58 feet along the west line of Outlot 5 to the
northeast corner of Lot 19, GALLUP RIVERFRONT UNIVERSITY CAMPUS;
Thence South 87°31'46" West for 86.44 feet along said north line;
Thence along a curve to the left (having a radius of 191.00 feet and a long chord bearing
North 49°50'05" West for 123.81 feet) for an arc length of 126.08 feet along said north line;
Thence North 22°01'27" East for 120.46 feet;
Thence along a curve to the left (having a radius of 50.00 feet and a long chord bearing
North 23°05'46" West for 99.34 feet) for an arc length of 168.54 feet;
Thence North 67°58'33" West for 230.01 feet;
Thence North 48°36'40" West for 81.37 feet;
Thence along a curve to the left (having a radius of 118.50 feet and a long chord bearing
North 68°01'25" West for 78.77 feet) for an arc length of 80.30 feet;
Thence North 87°26'09" West for 17.50 feet to the east right of way line of Riverfront
Drive;
Thence North 02°33'51" East for 79.97 feet to the Point of Beginning.
Contains 2.993 acres.
NOTE: The above Description is over Lots 2 through 6, inclusive, and Outlot C, in proposed
RIVERFRONT PLACE.
April 23,2004
LAMP, RYNEARSON&ASSOCIATES,INC.
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Book__ Page Date 4/21/04 Dwn.By CTM Job Number 03075.01-003
J k__ Lamp, Rynearson & Associates, Inc. WWW.LRA-INC.COM
14710 West Dodge Road, Suite 100 (Ph) 402.496.2498
Omaha, Nebraska 68154-2027 (Fax) 402.496.2730
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Exhibit D
Schedule of Performance Page 1
Action Performance date
Developer to replat and rezone Project Area
(Section 3.11) Date of Agreement
Developer to execute Riverfront Place Redevelopment
Covenants (Section 3.12) Date of Agreement
City to obtain Gallup Storm Sewer Removal and
Relocation Approvals (Section 2.15) Date of Agreement
City to obtain all agreements and approvals to
implement Amendment to Gallup Redevelopment
Covenants (Section 2.16) Date of Agreement
City to name Developer as additional insured under
Environmental Insurance Policy (Section 2.2.4) Closing Date
City to provide Developer with an endorsement to
the Commitment changing the effective date to a
date subsequent to the date of the Agreement Within 15 days of the date
(the AUpdate Endorsement:,-) of the Agreement
City to provide Developer with Survey accurately
reflecting information contained in Update Endorsement Within 15 days of the date
of Update Endorsement
Developer to deliver to City a statement containing any
may objections
Developerhave to Commitment and/or
p
Survey Within 30 days of later of
(i) Receipt of both Update
Endorsement and Survey
or (ii) Date of Agreement
City to deposit warranty deed for Phase II into escrow Closing Date
City to execute and deliver the Redevelopment
Covenants (Section 2.18) Closing Date
Exhibit D
DRAFT Schedule of Performance Page 2
Action Performance date
City to complete riverwalk trail from southerly boundary
of Project Area to southerly boundary of Bridge
Landing Parcel Within 180 days of Closing
Date
City to plant, at a minimum, a grass dust cap on the Within 180 days of Closing
Bridge Landing Parcel Date
Developer to obtain building permit and commence
Project Parcel 1 improvements September 1, 2005
The "time set forth in the Schedule of Performance"
referenced in the second sentence of Section 4.4. September 1, 2005
City to issue TIF Bonds for Phase I (Project parcel 1)
and grant 50% of net proceeds to Developer Within 180 days after
issuance of Phase 1
Building Permit
Developer to complete the improvements of Project
Parcel 1 , Outlot A and Outlot B and receive
Certificate of Occupancy (Section 3.1) August 31, 2007
Developer to close on Project Parcel II and City to
receive escrowed funds (Section 3.3(i)) Within 3 years of
Certificate of Occupancy
for Phase I
OMADOCS 692019v2
r
0
RIVERFRONT PARTNERS LLC
REVISED 7 07 04
EXHIBIT E
PUBLIC IMPROVEMENT COST SCHEDULE
THESE COSTS ARE CURRENT BEST ESTIMATES BASED ON AVAILABLE
• CONCEPTUAL AND SCHEMATIC INFORMATION.AT THIS TIME THERE ARE NC
SITE SPECIFIC ENGINEERING PLANS OR SPECIFICATIONS.
ACCORDINGLY,THIS SCHEDULE WILL BE ADJUSTED AS THE ENGINEERING
IS DEVELOPED.
Current
Estimated
Total TIF 1 TIF 2
Riverfront Plaza(Private Drive)
Paving(Street Only) $90,000 $90,000 $0
Integral Curb&Gutter $27,000 $27,000 $0
Sidewalks $21,000 $21,000 $0
Signage&Rails $7,000 $7,000 $0
Site Lighting&Signage $73,700 $73,700 $0
Utilities(water,storm,sanitary) $125,000 $125,000 $0
Sub-total $343,700 $343,700 $0
Riverfront Drive
Paving,curb and gutter $17,500 $17,500 $0
Demo $2,500 $2,500 $0
Sidewalks $10,150 $10,150 $0
Sub-total $30,150 $30,150 $0
Public Plaza and Parking Areas
Site Sidewalks $25,000 $0 $25,000
Plaza&Amenities $45,000 $0 $45,000
Art in Public Places Competitior $35,000 $0 $35,000
Hardscape&Amenities $60,000 $0 $60,000
Pergola $15,000 $0 $15,000
Ashalt Paving/Curb&Gutter $100,000 $30,000 $70,000
Parcel 1 Circle Entry $37,000 $37,000
Landscaping&Site Amenities $50,000 $30,000 $20,000
Landscaping&Site Amenities $20,000 $0 $20,000
Sub-total $387,000 $97,000 $290,000
Bridge Landing View Corridor
Ornamental Fence $28,050 $28,050
Landscape and Irrigation $137,500 . $137,500
Sub-total $165,550 $165,550 $0
Riverfront Walk
Concrete path $16,800 $0 $16,800
Bollard Lighting $22,000 $0 $22,000
Misc.electrical $5,500 $0 $5,500
Landscape and Irrigation $8,100 $0 $8,100
Refurbish Omaha Dock $10,000 $0 $10,000
Sub-total $62,400 $0 $62,400
Sub-surface Site Prep
Subsruface Site Prep Phase 1 (pilings) $320,000 $320,000 $0
Subsurface Site Prep Phase 2(pilings) $350,000 $0 $350,000
Sub-total $670,000 $320,000 $350,000
City Provided Storm Relocation
54"RCP $32,000 $0 $32,000
Excavate&Backfill $61,000 $0 $61,000
HeadwalVOutfall Structure $25,000 $0 $25,000 I
Abandon Old $7,000 $0 $7,000
Sub-total $125,000 $0 $125,000
Pre-Contingency Totals $1,783,800 $956,400 $827,400
Architecture and Engineering 10% $178,380 495,640 $82,740
Sub-total 41,962,180 $1,052,040 4910,140
Contingency 5% 498,109 452,602 $45,507
TOTAL PUBLIC IMPROVEMENT/SITE PREP $2,060,289 $1,104,642 $955,647
EXHIBIT F
EQUAL EMPLOYMENT OPPORTUNITY CLAUSE
During the performance of this contract, the Authority(as the "Contractor") agrees as follows:
(1) The Contractor shall not discriminate against any employee or applicant for employment
because of race, religion, color, sex, national origin, or disability as defined by the
Americans With Disabilities Act of 1990 and Omaha Municipal Code 13-82. The
Contractor shall take affirmative action to ensure that applicants are employed and that
employees are treated during employment without regard to their race, religion, color, sex
or national origin. The Contractor shall take all actions necessary to comply with the
Americans With Disabilities Act of 1990 and Omaha Municipal Code (Chapter 13)
including, but not limited to, reasonable accommodation. As used herein, the word
"treated" shall mean and include, without limitation, the following: Recruited, whether
advertising or by other means; compensated; selected for training, including
apprenticeship; promoted; upgraded; demoted; downgraded; transferred; laid off; and
terminated. The Contractor agrees to and shall post in conspicuous places, available to
employees and applicants for employment, notices to be provided by the contracting
officers setting forth the provisions of this nondiscrimination clause.
(2) The Contractor shall, in all solicitations or advertisements for employees placed by or on
behalf of the Contractor, state that all qualified applicants will receive consideration for
employment without regard to race, religion, color, sex, national origin, or disability as
recognized under 42 USCS 12101 et seq.
(3) The Contractor shall send to each labor union or representative of workers with which he
has a collective bargaining agreement or other contract or understanding a notice
advising the labor union or worker's representative of the Contractor's commitments
under the Equal Employment Opportunity Clause of the City and shall post copies of the
notice in conspicuous places available to employees and applicants for employment.
(4) The Contractor shall furnish to the contract compliance officer all Federal forms
containing the information and reports required by the Federal government for Federal
contracts under Federal rules and regulations, and including the information required by
Sections 10-192 to 10-194, inclusive, and shall permit reasonable access to his records.
Records accessible to the Contract Compliance Officer shall be those which are related to
Paragraphs (1) through (7) of this subsection and only after reasonable notice is given the
Contractor. The purpose for this provision is to provide for investigation to ascertain
compliance with the program provided for herein.
31
EXHIBIT G
FIRST AMENDMENT TO REDEVELOPMENT COVENANTS
THIS FIRST AMENDMENT TO REDEVELOPMENT COVENANTS (the
"Amendment") is made and entered into as of the day of , 2004, by and
among The City of Omaha,Nebraska("City"), Riverfront Campus Developers, LLC ("RCD"),
and Riverfront Campus Developers II, LLC ("RCDII"), and Riverfront NPS, Inc. ("RNPS").
RECITALS :
A. City and RCD entered into that certain Declaration of Redevelopment Covenants
(the "Declaration") pursuant to the terms of that certain Redevelopment Agreement among the
City, RCD and Douglas County, Nebraska, dated as of April 19, 2001, as amended by that
certain First Amendment to Redevelopment Agreement dated March 28, 2002, and as further
amended by that certain Second Amendment to Redevelopment Agreement dated June 24, 2002.
The Declaration was recorded in the office of the Register of Deeds of Douglas County,
Nebraska on July 31, 2003., as part of Instrument No. 2003144737. The Declaration governs
certain real property located in Douglas County,Nebraska, described therein as the
Redevelopment Area, and legally described on the attached Exhibit A.
B. The City, RCD, RCDII and RNPS collectively own, or in the case of RCDII have
the right to acquire, all of the real property described on the attached Exhibit A.
C. The parties wish to modify certain land use provisions applicable to Lots 16
and 18, GALLUP RIVERFRONT UNIVERSITY CAMPUS, a subdivision, as surveyed, platted,
and recorded in Douglas County,Nebraska(the "Property").
D. City and Riverfront Partners, LLC ("Developer") have entered or are about to
enter into a Redevelopment Agreement, pursuant to which Developer will acquire and develop
the Property.
NOW THEREFORE, in consideration of the covenants set forth herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City,
RCD, RCDII and RNPS agree as follows:
OM-173278-3
L
' o
7-
1. The Declaration is hereby amended as follows:
a. Notwithstanding any other provision of the Declaration to the contrary, the
Property may only be used for multiple-family residential use and any use permitted as a
"Permitted Use" in the City of Omaha Community Commercial zoning district, set forth
in Section 55-363 of the Omaha Municipal Code, as adopted, amended, and in effect
from time to time, except that the following uses will not be permitted for the Property:
automotive washing, communication services unless ancillary to another permitted use,
funeral services, pawnshop services, restaurant (drive-in), service station, veterinary
services, and emergency residential care. Uses listed in Section 55-364 and 55-365 of the
Omaha Municipal Code as "Conditional Uses" and"Special Permit Uses" will not be
permitted on the Property, except for multiple family residential use.
b. Section 1.D of the Declaration is deleted in its entirety.
2. All other terms and provisions of the Declaration remain in full force and effect,
including provisions relating to architectural approval.
3. City, RCD, RCDII and RNPS hereby represent and warrant that they are party to
the Declaration or their successors or assigns, and that the individuals executing this Amendment
have been duly authorized to execute same on behalf of City, RCD,RCDII or RNPS, as the case
may be. Further, City, RCD, RCDII and RNPS hereby represent and warranty that all required
corporate and company action has been taken authorizing the undersigned to act on behalf of
City, RCD, RCDII and RNPS, and that execution of this Amendment will not conflict with any
other agreement to which City, RCD, RCDII or RNPS may be a party.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
THE CITY OF OMAHA, NEBRASKA
ATTEST:
By:
City Clerk
Title:
Approved as to form:
City Attorney
2
OM-173278-3
RIVERFRONT NPS, INC., RIVERFRONT CAMPUS
a Nebraska corporation DEVELOPERS,LLC
By: Gallup, Inc., Manager
By:
By:
Title:
Title:
RIVERFRONT CAMPUS
DEVELOPERS II, LLC
By: Gallup, Inc., Manager
By:
Title:
STATE OF NEBRASKA )
) ss.:
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me on this day of
, 2004, by , who is the
of the City of Omaha, Nebraska, on behalf of
the City of Omaha,Nebraska..
Notary Public
My Commission Expires:
3
oM-173278-3
1
n
STATE OF NEBRASKA )
) ss.:
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me on this day of
, 2004, by
of Riverfront NPS, Inc., a Nebraska corporation, on behalf of the corporation.
Notary Public
My Commission Expires:
STATE OF NEBRASKA )
) ss.:
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me on this day of
, 2004, by , who is the
of Gallup, Inc., Manager of Riverfront
Campus Developers, LLC, on behalf of Riverfront Campus Developers, LLC.
Notary Public
My Commission Expires:
STATE OF NEBRASKA )
) ss.:
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me on this day of
2004, by , who is the
of Gallup, Inc., Manager of Riverfront
Campus Developers II, LLC, on behalf of Riverfront Campus Developers II, LLC. .,
Notary Public
My Commission Expires:
4
OM-173278-3
EXHIBIT A
Legal Description of Redevelopment Area
The Campus:
Lots 1 and 3 through 15, inclusive, Gallup University Riverfront Campus, a subdivision, as
surveyed, platted and recorded, in Douglas County, Nebraska; and
Lots 2 and 2A, Gallup University Riverfront Campus Replat 1, being an administrative
subdivision of Lot 2, Gallup University Riverfront Campus, a subdivision, as surveyed,
platted and recorded, in Douglas County, Nebraska.
Future Parking Structure Area:
Lot 16, Gallup University Riverfront Campus, a subdivision, as surveyed, platted and
recorded, in Douglas County,Nebraska.
Future Redevelopment Site One:
Lots 18 through 22, Gallup University Riverfront Campus, a subdivision, as surveyed,
platted and recorded, in Douglas County, Nebraska, formerly described as follows:
That part of Blocks 7, 32, AND 360, ORIGINAL CITY OF OMAHA, a subdivision,
as surveyed, lithographed and recorded in Douglas County, Nebraska; TOGETHER WITH
part of vacated Webster, California, Cass, AND 8th Streets as dedicated in the ORIGINAL
CITY OF OMAHA; AND ALSO TOGETHER WITH part of Government Lot 4, all in Section
14, Township 15 North, Range 13 East of the 6th P.M., Douglas County, Nebraska, described
as follows:
Beginning at the southwest corner of Lot 16, GALLUP UNIVERSITY RIVERFRONT
CAMPUS, a subdivision, as surveyed, platted and recorded in Douglas County, Nebraska;
Thence North 87°31'46" East (bearings referenced to the Final Plat of GALLUP
UNIVERSITY RIVERFRONT CAMPUS) for 584.79 feet along the south line of said Lot 16
to an angle point therein;
Thence South 76°13'17" East for 27.91 feet to the southeast corner of said Lot 16 and
the west bank of the Missouri River as defined in the Final Plat of GALLUP UNIVERSITY
RIVERFRONT CAMPUS;
Thence South 09°51'39" West for 416.24 feet along said defined west bank extended
south;
Thence along a curve to the left (having a radius of 11183.37 feet and a long chord
bearing South 02'54'19" East for 813.79 feet) for an arc length of 813.97 feet along said
defined west bank extended south to the north line of Lot 1, SMELTER PLANT REPLAT, a
subdivision, as surveyed, platted and recorded in Douglas County, Nebraska;
A-1
Thence South 85°00'35" West for 30.23 feet along said north line;
Thence South 87°37'29" West for 525.64 feet along said north line to the east right of
way line of 6th Street as platted in the Final Plat of GALLUP UNIVERSITY RIVERFRONT
CAMPUS;
Thence along said east right of way line for the following 5 courses:
1) Thence North 27°36'17" West for 136.06 feet;
2) Thence along a curve to the right(having a radius of 474.50 feet and a long chord bearing
North 09°24'36" West for 296.32 feet) for an arc length of 301.36 feet;
3) Thence North 08°47'04" East for 384.75 feet;
4) Thence along a curve to the left (having a radius of 1225.49 feet and a long chord
bearing North 05°40'27" East for 132.99 feet) for an arc length of 133.06 feet;
5) Thence North 02°33'51" East for 303.51 feet to the Point of Beginning.
Contains 741346 square feet or 17.019 acres.
Future Redevelopment Site Two:
Lot 12, Union Pacific Place, a subdivision in Omaha, Douglas County, Nebraska,
formerly described as follows:
Part of Blocks 0, P, Q, 313, 314, 327, 328, AND 329, ORIGINAL CITY OF
OMAHA, a subdivision, as surveyed, lithographed and recorded in Douglas County, Nebraska;
TOGETHER WITH part of Napolean, Nicholas, Izard, Cuming, Burt, AND 8th Streets as
dedicated in the ORIGINAL CITY OF OMAHA, the entire tract described as follows:
Commencing at the southwest corner of Lot 16, GALLUP UNIVERSITY
RIVERFRONT CAMPUS, a subdivision, as surveyed, platted and recorded in Douglas
County, Nebraska;
Thence South 87°31'46" West (bearings referenced to the Final Plat of GALLUP
UNIVERSITY RIVERFRONT CAMPUS) for 130.50 feet along the south line of said Lot
16 extended west to the west right of way line of the Union Pacific Railroad and the True
Point of Beginning;
Thence South 87°31'46" West for 237.21 feet;
Thence along a curve to the left (having a radius of 3022.00 feet and a long chord
bearing North 09°05'59" West for 207.89 feet) for an arc length of 207.93 feet;
Thence along a curve to the left (having a radius of 572.00 feet and a long chord
bearing North 20°54'03" West for 195.31 feet) for an arc length of 196.27 feet;
A-2
oM-173278-3
Thence along a curve to the right (having a radius of 30.00 feet and a long chord
bearing North 09°41'55" East for 21.53 feet) for an arc length of 22.03 feet;
Thence North 11°20'02" East for 185.05 feet;
Thence along a curve to the left (having a radius of 335.00 feet and a long chord bearing
North 21°37'17" West for 364.47 feet) for an arc length of 385.37 feet;
Thence North 54°34'36" West for 130.59 feet;
Thence North 37°46'31" East for 163.40 feet;
Thence North 46°43'31" East for 161.12 feet;
Thence North 37°18'10" East for 226.20 feet;
Thence North 30°05'26" East for 173.49 feet to the west right of way line of the Union
Pacific Railroad;
Thence South 15°03'30" East for 126.17 feet along said west right of way line of the
Union Pacific Railroad;
Thence along a curve to the right (having a radius of 1145.93 feet and a long chord
bearing South 08°41'17" East for 254.29 feet) for an arc length of 254.81 feet along said west
right of way line of the Union Pacific Railroad;
Thence South 02°19'04" East for 932.39 feet along said west right of way line of the
Union Pacific Railroad;
Thence along a curve to the right (having a radius of 2525.00 feet and a long chord
bearing South 00°37'41" West for 259.54 feet) for an arc length of 259.65 feet along said
west right of way line of the Union Pacific Railroad to the Point of Beginning.
Contains 10.595 acres.
Note: Lots 16 and 18 are in the process of being replatted as Lots 1 through 6, inclusive and
If such re platting has been completed at the time this
Riverfront Place. P
Outlots A, B, and C, P g
Amendment is being executed and recorded, a paragraph will be added to the.,above legal
description stating that Lots 16 and 18, Gallup University Riverfront Campus are now known as
Lots 1 through 6, inclusive, Riverfront Place, a subdivision, as surveyed, platted and recorded in
Douglas County,Nebraska.
A-3
OM-173278-3
EXHIBIT H
` o
Return to: Steven D. Johnson, 1299 Farnam Street, Suite 1501, Omaha,NE 68102; (402) 342-1700
DECLARATION OF RESTRICTIONS
This Declaration of Restrictions ("Declaration") is made as of this_day of
, 2004, by THE CITY OF OMAHA,Nebraska, a municipal corporation
("City").
RECITALS:
WHEREAS, City is the owner of the following described real estate (hereinafter
collectively referred to as the "Burdened Property"):
Outlots 4 and 5, GALLUP RIVERFRONT UNIVERSITY
CAMPUS, a subdivision, as surveyed, platted and recorded in
Douglas County, Nebraska; and,
WHEREAS, City is the owner of the following described real estate (hereinafter
collectively referred to as the "Benefited Property"):
Lots 16 and 18, GALLUP RIVERFRONT UNIVERSITY
CAMPUS, a subdivision, as surveyed, platted and recorded in
Douglas County, Nebraska;
WHEREAS, City desires to establish certain restrictions,prohibiting certain development
of the Burdened Property.
AGREEMENTS:
NOW,THEREFORE, City does hereby establish and declare the following covenants,
conditions,reservations and restrictions which shall apply to the Burdened Property:
1. No improvements shall be constructed on any part of the Burdened Property
(hereinafter referred to as the "Restriction"). "Improvements" shall mean any building, structure,
fence, or wall. Notwithstanding anything herein stated to the contrary, these restrictive
covenants shall not apply to any construction or maintenance of storm sewers, storm sewer
outlets, dikes, levees, or flood control structures upon the Burdened Property.
OMADOCS 688944v1
2. Miscellaneous Provisions:
a. Covenants Run With the Land: The terms and provisions of this Declaration shall
run with the land.
b. Successors and Assigns: This Declaration and the Restriction created hereby
shall be binding upon the owners of the Burdened Property, their heirs, personal representatives,
successors and assigns, and upon any person acquiring such land, or any portion thereof, or any
interest therein, whether by operation of law or otherwise.
c. Duration: Except as otherwise provided herein, the term of this Declaration shall
be perpetual.
d. Injunctive Relief: In the event of any violation or threatened violation by any
person of the Restriction contained in this Declaration, the owners of the Benefited Property
shall have the right to enjoin such violation or threatened violation in a court of competent
jurisdiction. The right of injunction shall be in addition to all other remedies set forth in this
Declaration or provided by law.
e. Modification and Termination: This Declaration may be modified or terminated
only by written instrument, duly executed and acknowledged by the owner of the Benefited
Property, recorded in the office of the Register of Deeds of Douglas County, Nebraska.
f. Not a Public Dedication: Nothing herein contained shall be deemed to be a gift or
dedication of any portion of the Burdened Property to the general public or for the general public
or for any public purpose whatsoever, it being the intention of the parties that this Declaration
shall be strictly limited to and for the purposes herein expressed.
g. Waiver: The failure of a person to insist upon strict performance of any of the
Restriction contained herein shall not be deemed a waiver of any rights or remedies that said
person may have, and shall not be deemed a waiver of any subsequent breach or default in the
performance of any of the Restrictions contained herein by the same or any other person.
h. Severability: If any term or provision of this Declaration or the application of it
to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of
this Declaration or the application of such term or provision to persons or circumstances, other
than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term
or provision of this Declaration shall be valid and shall be enforced to the extent permitted by
law.
i. Third Party Beneficiary Rights: This Declaration is not intended to create, nor
shall it be in any way interpreted or construed to create, any third party beneficiary rights in any
person not an owner of the Benefited Property, unless otherwise expressly provided herein.
j. Captions and Headings: The captions and headings in this Declaration are for
reference only and shall not be deemed to define or limit the scope or intent of any of the terms,
covenants, conditions or agreements contained herein.
2
OMADOCS 688944v1
•
k. Recordation: This Declaration shall be recorded in the office of the Register of
Deeds, Douglas County, Nebraska.
EXECUTED as of the day and year first above written.
THE CITY OF OMAHA,NEBRASKA
A'1'i'hST:
By:
City Clerk
Title:
Approved as to form:
•
City Attorney
STATE OF NEBRASKA )
) ss.:
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me on this day of
2004, by , who is the
of the City of Omaha, Nebraska, on behalf of
the City of Omaha, Nebraska..
Notary Public
My Commission Expires:
3
OMADOCS 688944v1
EXHIBIT I
NOTICE OF ENVIRONMENTAL REMEDIATION ACTIVITY
AND COVENANT RESTRICTING USE
This Notice of Environmental Remediation Activity and Covenant Restricting
Use (this "Notice and Covenant"), is made this day of
2004,by the City of Omaha,Nebraska, a municipal corporation (the "City"), Riverfront
NPS, Inc., a Nebraska Corporation("RNPS"), and Riverfront Campus Developers II,
L.L.C., a Nebraska limited liability company("RCD II").
RECITALS
A. WHEREAS, the City is the owner of the real property known as Lots 3, 4, and
5 of the Gallup University Riverfront Campus, a subdivision, as surveyed, platted and
recorded in Douglas County,Nebraska and located in Omaha,Nebraska ("Property I");
and
B. WHEREAS, the City and Riverfront Campus Developers, L.L.C. ("RCD")
entered into a Redevelopment Agreement dated April 19, 2001 (as heretofore and
hereafter amended, the"Redevelopment Agreement")which was approved by Ordinance
No. 35543,passed by the Omaha City Council on April 10,2001, and subsequently
approved by the Mayor of the City on April 19, 2001. The Redevelopment Agreement
provides for the City to convey Property Ito RCD; and
C. WHEREAS, RCD has assigned all its rights under the Redevelopment
Agreement pertaining to Property I, including but not limited to its right to receive such
conveyance of said property to RCD II.
D. WHEREAS, RNPS is the owner of the real property known as Lot 20 of the
Gallup
University
Riverfront Campus, a subdivision, as surveyed,platted and recorded in
Douglas County,Nebraska and located in Omaha,Nebraska("Property II"); and
E. WHEREAS, on September 18, 2001,the City entered into an agreement with
Douglas County, Nebraska which,by Ordinance No. 35915, was passed by the Omaha
City Council and subsequently approved by the Mayor of the City of Omaha,Nebraska;
and
EXHIBIT
F. WHEREAS, on September 27, 2001, the Mayor also entered into a
Memorandum of Understanding By and Between the General Services Administration,
the City of Omaha,Nebraska, and the United States National Park Service. Both the
agreement and the Memorandum of Understanding provide that the City will convey
Property II to a developer for the purpose constructing a National Park Service office
building, and the City has conveyed Property II to RNPS.
G. WHEREAS, the City is the owner of Lots 16, 18, 19 and 22 of the Gallup
University Riverfront Campus, a subdivision, as surveyed,platted and recorded in
Douglas County,Nebraska and located in Omaha,Nebraska ("Property III") (Property I,
II and III will hereinafter be referred to collectively as the "Property").
H. WHEREAS, the Property was legally described as set forth in Attachment A,
attached hereto and incorporated herein prior to being platted as part of Gallup University
Riverfront Campus.
I. WHEREAS, pursuant to the Nebraska Remedial Action Plan Monitoring Act,
Neb. Rev. Stat. § 81-15,181 et seq., the City has submitted to the Nebraska Department
of Environmental Quality("NDEQ") for its approval, and NDEQ has approved, a
Remedial Action Plan identified as the"Remedial Action Plan Omaha Dock Property,
City of Omaha Riverfront Redevelopment Project, August 2003, JHC Project No. 243-
68" and/or the"RAPMA Project# 36-336-4919" ("RAP 2") (RAP 2, together with other
related remediation documentation submitted to and approved by NDEQ pursuant to or in
connection with RAP 2 will hereinafter be referred to as the"Remediation
Documentation").
J. WHEREAS, pursuant to RAP 2, the City agreed to record with the Douglas
County,Nebraska Register of Deeds a deed notice and restrictive covenant for the
Property that touches and concems and runs with the land.
NOW, THEREFORE,the City, RCD II and RNPS hereby declare that the Property
shall hereinafter be bound by,held, sold and conveyed, subject to the following terms,
covenants, restrictions and easements set forth in paragraphs 1 though 11 below,which
shall touch and concern and run with the land, or any part thereof, in perpetuity and shall
be binding on the City, RCD II and RNPS, their heirs, successors, assigns, and
transferees, and all parties acquiring any right, title, interest, or use in the Property.
1. Purpose of the Covenant: The purpose of this Notice and Covenant is to ensure
protection of human health and the environment by minimising the potential for
exposure to any hazardous substance,hazardous waste,hazardous constituent,
and/or solid waste that remains on the Property. This Notice and Covenant will
accomplish this purpose by minimizing or eliminating those activities that result
in disturbing the ground surface, and by creating a review and approval process to
ensure that any such intrusive actions are conducted with appropriate precautions
to avoid or eliminate any hazards.
2
2. Use Restrictions:
a. The Property shall not be used, developed or operated in any
manner that violates any applicable state or federal laws, rules, and
regulations and/or zoning requirements.
b. The Property shall not be used or developed in any manner that
shall have a reasonable degree of scientific probability of
impairing, degrading or compromising the remediation performed
pursuant to the Remediation Documentation.
c. The Property shall not be used to store, treat or dispose of wastes
of any kind, except garbage, rubbish, trash or wastes generated in
the ordinary course of the occupant's business and stored, treated
and disposed of in accordance with all applicable laws, rules and
regulations of governmental authorities.
d. The Property shall have no development where foundation loads
shall be increased above loads specified in any engineering plans
approved by the Permits and Inspections Division of the City of
Omaha Planning Depaitiiient or its successor agency.
e. Domestic, irrigation and water wells of any type shall not be
drilled or maintained on the Property, except for groundwater
monitoring wells. Groundwater beneath the Property shall not be
used as a source of drinking water or for other direct contact
purposes.
f. If the soil capping system described in RAP 2 is penetrated to a
depth that has a reasonable degree of scientific probability of
interfering with or impairing the integrity of the soil capping
system, additional engineering steps will be taken to protect human
health and the environment until the integrity of the capping
system is restored.
g. Prior to a planned penetration of the soil capping system, a
protocol shall be developed for testing and proper management of
any contaminated environmental media(e.g. soils, and ground
water) that may be encountered. Prior to implementation of any
plannedpenetration enetration of the soil capping system,the protocol will be
provided to NDEQ for review and approval.
h. No actions or development shall be allowed on the Property that
will have a reasonable degree of scientific probability of altering
the drainage patterns such that the integrity of the soiling capping
3
L
system would be compromised, or resulting in unstable slopes on
the Property or damaging the rip rap and shoreline armoring.
i. Changes in use or development to the Property to any use other
than commercial, office building, multi-functional hotel or
residential use with no ground floor dwelling units (entry areas
excepted), public parks, open spaces, recreational areas, sewer grit
station, marina, or pedestrian bridge terminus, will require the
approval of NDEQ. NDEQ will evaluate the need for any
additional remedial action prior to implementation of the proposed
changes and will determine whether the changes will be protective
of human health and the environment.
3. Obligations: Notwithstanding any conveyance of any interest of any portion of
the Property, the City shall at all times comply with the obligations set forth in the
Remediation Documentation and this Notice and Covenant. This Notice and
Covenant shall in no way amend, modify, limit or release the City from its duties
under the Remediation Documentation and/or the Redevelopment Agreement,
including but not limited to the duties of the City with respect to hazardous
substances (as defined in the Redevelopment Agreement), environmental
remediation and/or indemnification on account of hazardous substances set forth
in the Redevelopment Agreement. Neither RCD II, RNPS, nor any subsequent
owner of any interest of any portion of the Property shall be required to perform
the duties of the City set forth in the Remediation Documentation and/or the
Redevelopment Agreement; provided,however, that RCD II, RNPS, its heirs,
successors, assigns, and transferees and all parties acquiring any right, title,
interest, or use in the Property, shall not take any action that would violate any
provision of this Notice and Covenant applicable to RCD II and RNPS.
4. Easement: The City reserves and shall have a temporary easement from time to
time to enter upon the Property to the limited extent and for such necessary and
reasonable time as is required to perform the City's obligations under the
Remediation Documentation and this Notice and Covenant. RNPS hereby grants
such easement to the City with respect to Property II. Effective upon its
acquisition of Property I, RCD II hereby grants to the City such easement with
respect to Property I. The City shall perform all work in a good and workmanlike
manner with as little interference with any use or business being conducted on the
Property as is reasonably possible under the circumstances existing at the time.
The City shall give the owner of the portion of the Property on which the City will
enter pursuant hereto as much advance notice as is reasonably possible under the
circumstances existing at the time. The City shall repair and replace any damage
to improvements and landscaping caused by the work performed by the City and
its employees and contractors immediately upon completion of the work.
5. Modifications: This Notice and Covenant runs with the land and is perpetual,
4
i ,
G I
unless modified or terminated with the written approval of the City, NDEQ, and
the fee simple titleholders of not less than one hundred percent (100%) of the land
area of the Property.
6. Recording: This Notice and Covenant, and any modification or termination
shall be recorded in the Douglas County,Nebraska Register of Deeds and indexed
by the legal description and/or lot number of the real property subject to this
Notice and Covenant.
7. No Waiver: No waiver of any default of any obligation by any party under this
Notice and Covenant shall be implied from any omission by any other party to
take any action with respect to such default, nor shall any breach of any provision
of this Notice and Covenant constitute a waiver of a subsequent breach of the
same or any other provision herein.
8. Access: Nothing in this Notice and Covenant shall limit or otherwise affect
NDEQ's rights of entry and access provided by state or federal law, rule or
regulation.
9.No Liability: The NDEQ does not acquire any liability or obligation under
state or federal law by virtue of confirming this Notice and Covenant.
10. Waiver of Certain Defenses: The City, on behalf of itself, its successors,
assigns, and transferees hereby waive any defense of laches, estoppel, statute of
limitations, or prescription.
11. Controlling Law: This Notice and Covenant shall be governed and interpreted
under the laws of the State of Nebraska.
5
IN WITNESS WHEREOF, the parties hereto have executed this Notice and
Covenant on the dates set forth beneath their respective signatures, the latter of which
shall be deemed the date hereof for reference purposes.
THE CITY OF OMAHA, NEBRASKA,
a municipal corporation
ATTEST:
By:
City Clerk Mike Fahey, Mayor
Date:
Approved as to Form
City Attorney
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing instrument was acknowledged before me on
2004, by Mike Fahey, who is Mayor of the City of Omaha,Nebraska, on behalf of the
City of Omaha, Nebraska.
Notary Public
My Commission expires:
6
RIVERFRONT NPS, INC.,
a Nebraska Corporation
By:
Printed Name:
Title:
Date:
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS)
The foregoing instrument was acknowledged before me on
2004, by , on behalf of
Riverfront NPA, Inc., a Nebraska Corporation.
Notary Public
My Commission expires:
7
RIVERFRONT CAMPUS
DEVELOPERS II, L.L.C.
By: Gallup, Inc., a Delaware corporation,
Manager
By:
Printed Name:
Title:
Date:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on
2004,by , of Gallup, Inc., a Delaware
corporation, as Manager of Rive'fiont Campus Developers II, LLC, a Nebraska limited
liability company, on behalf of the corporation and the limited liability company.
Notary Public
My Commission expires:
8
FIRST AMENDMENT TO
REDEVELOPMENT AGREEMENT
BETWEEN CITY OF OMAHA,NEBRASKA, AND
RIVERFRONT PARTNERS LLC
THIS FIRST AMENDMENT TO THE REDEVELOPMENT AGREEMENT ("First
Amendment") is made and entered into by and between THE CITY OF OMAHA, NEBRASKA,
a municipal corporation ("City"), and RIVERFRONT PARTNERS LLC, a Nebraska limited
liability company, and its assignee, RIVERFRONT HOLDINGS LLC, a Nebraska limited
liability company, ("Developer").
WHEREAS, the City and the Riverfront Partners LLC entered into the Redevelopment
Agreement dated July 27, 2004 (the "Redevelopment Agreement"); and
WHEREAS, the Developer has successfully completed its first phase of the development
consisting of a tower with 39 condominiums and adjacent 18 townhomes; and,
WHEREAS, the Developer now seeks to commence construction of the second phase of
its project to build a residential condominium tower with approximately 51 condominium units;
and
WHEREAS, due to change in circumstances, certain modifications to the original
Redevelopment Agreement are required; and
WHEREAS, the modifications to the original Redevelopment Agreement are not major
amendments and thus can be modified by administrative action pursuant to Section 4.16 of the
Redevelopment Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged,the Parties agree to amend the Redevelopment Agreement as follows:
1. Cost Participation.
Section 2.4(b) of the original Redevelopment Agreement is deleted in its entirety and
replaced as follows:
With respect to Phase II the City shall participate in the cost of allowable
TIF improvements constructed by Developer under Section .2.15 by
reimbursing Developer up to a maximum of $223,000 of such costs,
including architectural and engineering costs. Such payment shall be
made by January 15, 2010..
2. Public Plaza Area and Riverwalk Recreational Trail Maintenance.
•
1
Section 2.5 of the original Redevelopment Agreement is deleted in its entirety and
replaced as follows:
The City shall maintain, repair and replace the recreational trails
(including associated lighting, signage and landscaping) to the City's
standards applicable to similar improvements.
3. Dock Lease.
Section 2.8 of the original Redevelopment Agreement is deleted in its entirety and
replaced as follows:
If at anytime after the conveyance of Phase II to the Developer, the
Developer wishes to remove the dock located on Phase II (the "Dock"),
the Developer shall first give the City written notice of its intent to remove
the Dock (the "Removal Notice"). Within 60 days after its receipt of the
Removal Notice, the City, at its option, may elect to lease the Dock from
the Developer upon written notice to the Developer within such 60 day
period. The lease will require the City to pay rent of $1.00, to maintain
and repair the Dock, to indemnify the Developer. If the City does not elect
to lease the Dock within such 60 day period, the Developer may remove
the Dock.
4. TIF Bonds.
Section 2.11 of the original Redevelopment Agreement is supplemented with the
following:
With respect to development of Phase I, the City loaned prior
redevelopment bond proceeds to the Developer. The City will refinance
the loan by issuing TIF Bonds on Phase I for the remaining period left
under the Nebraska Community Development Law. The related notes and
corporate and personal guarantees will be modified accordingly. The net
proceeds from the above-referenced TIF Bonds sale in an anticipated
amount not less than $ 1,974,931 will then be loaned to the Developer as
the TIF Loan for Phase II for construction of Phase II improvements with
appropriate loan documents including corporate and personal, guarantees
as done with Phase I. The funds received by the City from the sale Phase I
TIF Bonds shall be treated as payment of 50 percent of the outstanding
TIF Loan Note for Phase I. The City and Developer agree that the TIF
Loan for Phase II shall be used generally by the Developer as set forth on
Exhibit A, attached hereto and incorporated herein. The Phase II TIF
Loan proceeds may be used by the Developer in any manner allowed by
law.
2
5. Construction of Improvements.
Section 3.1 of the original Redevelopment Agreement is hereby modified to reflect that
the total increase in valuation for Phase II shall be $30,000,000 and that Developer shall
construct a 15-floor condominium tower with a total of 51 condominium units ("Phase II
Condominium Tower").
6. Cash Payment for Land.
The Developer has put into escrow. at the time of the execution of the Redevelopment
Agreement, $850,000 for purchase of Phase II. This amount has been accumulating
interest, and the amount now owing to the City is approximately $1,010,000(the
"Purchase Price"). The City has agreed, to delay receipt of the Purchase Price and to
allow the Purchase Price to be released from escrow and loaned to Developer at the
closing of the Developer's purchase of Phase II from the City (the "Closing"). The City
will be paid the Purchase Price after payment in full of the construction loan on Phase II
from First National Bank of Omaha (the "Construction Loan"). Such payments to the
City will be on similar terms and conditions as provided in the Construction Loan. as set
forth in separate loan documents. In any event, the Purchase Price shall be paid in full,
together with accrued interest at the rate of 5.5 percent per annum on the unpaid balance
•
of the Purchase Price commencing on the date of Closing, no later than 36 months after
the Closing.
7. Public Plaza Area Riverwalk Recreational Trail.
Any reference in Section 3.5 of the original Redevelopment Agreement to the Public
Plaza is hereby deleted. The following shall be added to Section 3.5:
Developer may close and remove the riverwalk recreational trail located in
Phase II (the "Trail") during the construction of the Phase II
Condominium Tower. Within a reasonable time period after the
completion of the construction of the Phase II Condominium Tower,
Developer shall repair and replace the Trail. Developer shall coordinate
with the City Parks.Department to provide an alternate route for trail users
during construction.
8. Assignment and Assumption of Redevelopment Agreement.
Riverfront Partners LLC hereby assigns to Riverfront Holdings LLC all of its rights, title
and interest under the Redevelopment Agreement, as amended herein, and Riverfront
Holdings LLC hereby agrees to assume Riverfront Partners LLC's obligations under the
Redevelopment Agreement, as amended herein.
3
c'
CITY OF OMAHA, NEBRASKA, a municipal
• corporation
.y
By: i-,—_//s%
Jim le, Mayor
ATTEST: AP T F RM.
By:
Buster"Brown, City Clerk' Paul D. Kratz, City ttorney
RIVERFRONT PARTNERS, LLC, a Nebraska
,
limited liability company, Borrower .
By: Riverfront Holdings, LLC, a Nebraska limited
liability company, a Member
•
By:
Kim R. McGuire, Manager
By:
John C. Kinnear III, Manager
•
RIVERFRONT HOLDINGS LLC,
a Nebraska limited liability company
By:
Kim R.McGuire, Manager
By:
John C. Kinnear, III, Manager
4
CITY OF OMAHA, NEBRASKA, a municipal
corporation
By:
Jim Suttle, Mayor
ATTEST: APPROVED AS TO FORM:
By:
Buster Brown, City Clerk Paul D. Kratz, City Attorney
RIVERFRONT PARTNERS, LLC, a Nebraska
limited liability company, Borrower
By: Riverfront Holdings, LLC, a Nebraska limited
liability company, a Member
B /611 (Y)-
y•
'Kim R. McGuire, Manager
By:
John C. Kinnear III, Manager
RIVERFRONT HOLDINGS LLC,
a Nebraska limited liability company
By: //l.L.; .�-
Kim R.McGuire,Manager
By:
John C. Kinnear, III, Manager
4
CITY OF OMAHA, NEBRASKA, a municipal
corporation
By:
Jim Suttle, Mayor
ATTEST: APPROVED AS TO FORM:
By:
Buster.Brown, City Clerk Paul D. Kratz, City Attorney
RIVERFRONT PARTNERS, LLC, a Nebraska
limited liability company, Borrower
By: Riverfront Holdings, LLC, a Nebraska limited
liability company, a Member
By:
Kim R. McGuire, Manager
By: \ -
tC. Kinnear III, Manager
RIVERFRONT HOLDINGS LLC,
a Nebraska limited liability company
By:
Kim R. McGuire, Manager
By:
, Da—
Joil C.Kinnear,III, Manager
hereby certify that th.:1 foregoing is a true
and correct copy !)i. .:)riginal document
nakcv on file in Office.
4
Buster Brown, City Clerk, City of Omaha
•
FIRST AMENDMENT TO
REDEVELOPMENT AGREEMENT
BETWEEN CITY OF OMAHA,NEBRASKA, AND
RIVERFRONT PARTNERS LLC
THIS FIRST AMENDMENT TO THE REDEVELOPMENT AGREEMENT ("First
Amendment") is made and entered into by and between THE CITY OF OMAHA, NEBRASKA,
a municipal corporation ("City"), and RIVERFRONT PARTNERS LLC, a Nebraska limited
liability company, and its assignee, RIVERFRONT HOLDINGS LLC, a Nebraska limited
liability company, ("Developer").
WHEREAS, the City and the Riverfront Partners LLC entered into the Redevelopment
Agreement dated July 27, 2004 (the "Redevelopment Agreement"); and
WHEREAS, the Developer has successfully completed its first phase of the development
consisting of a tower with 39 condominiums_and adjacent 18 townhomes; and,
WHEREAS, the Developer now seeks to commence construction of the second phase of
its project to build a residential condominium tower with approximately 51 condominium units;
and
WHEREAS, due to change in circumstances, certain modifications to the original
Redevelopment Agreement are required; and
WHEREAS, the modifications to the original Redevelopment Agreement are not major
amendments and thus can be modified by administrative action pursuant to Section 4.16 of the
Redevelopment Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged,the Parties agree to amend the Redevelopment Agreement as follows:
1. Cost Participation.
Section 2.4(b) of the original Redevelopment Agreement is deleted in its entirety and
replaced as follows:
With respect to Phase II the City shall participate in the cost of allowable
TIF improvements constructed by Developer under Section 2.15 by
reimbursing Developer up to a maximum of $223,000 of such costs,
including architectural and engineering costs. Such payment shall be
made by January 15, 20.10.
2. Public Plaza Area and Riverwalk Recreational Trail Maintenance.
1
Section 2.5 of the original Redevelopment Agreement is deleted in its entirety
p �' and
replaced as follows:
The City shall maintain, repair and replace the recreational trails
(including associated lighting, signage and landscaping) to the ,City's
standards applicable to similar improvements.
3. Dock Lease.
Section 2.8 of the original Redevelopment Agreement is deleted in its entirety and
replaced as follows:
If at anytime after the conveyance of Phase II to the Developer, the
Developer wishes to remove the dock located on Phase II (the "Dock"),
the Developer shall first give the City written notice of its intent to remove
the Dock (the "Removal Notice"). Within 60 days after its receipt of the
Removal Notice, the City, at its option, may elect to lease the Dock from
the Developer upon written notice to the Developer within such 60 day
period. The lease will require the City to pay rent of $1.00, to maintain
and repair the Dock,to indemnify the Developer. If the City does not elect
to lease the Dock within such 60 day period, the Developer may remove
the Dock.
4. TIF Bonds. .
Section 2.11 of the original Redevelopment Agreement is supplemented with the
following:
With respect to development of Phase I, the City loaned prior
redevelopment bond proceeds to the Developer. The City will refinance
the loan by issuing TIF Bonds on Phase I for the remaining period left
under the Nebraska Community Development Law. The related notes and
corporate and personal guarantees will be modified accordingly. The net
proceeds from the above-referenced TIF Bonds sale in an anticipated
amount not less than $ 1,974,931 will then be loaned to the Developer as
the TIF Loan for Phase II for construction of Phase II improvements with
appropriate loan documents including corporate and personal guarantees
as done with Phase I. The funds received by the City from the sale Phase I
TIF Bonds shall be treated as payment of 50 percent of the outstanding
TIF Loan Note for Phase I. The City and Developer agree that the TIF
Loan for Phase II shall be used generally by the Developer as set forth on
Exhibit A, attached hereto and incorporated herein. The Phase II TIF
Loan proceeds may be used by the Developer in any manner allowed by
law.
2
5. Construction of Improvements.
Section 3.1 of the original Redevelopment Agreement is hereby modified to reflect that
the total increase in valuation for Phase II shall be $30,000,000 and that Developer shall
construct a 15-floor condominium tower with a total of 51 condominium units ("Phase II
Condominium Tower").
6. Cash Payment for Land.
The Developer has put into escrow at the time of the execution of the Redevelopment
Agreement, $850,000 for purchase of Phase II. This amount has been accumulating
interest, and the amount now owing to the City is approximately $1,010,000(the
"Purchase Price"). The City has agreed, to delay receipt of the Purchase Price and to
allow the Purchase Price to be released from escrow and loaned to Developer at the
closing of the Developer's purchase of Phase II from the City (the "Closing"). The City
will be paid the Purchase Price after payment in full of the construction loan on Phase II
from First National Bank of Omaha (the "Construction Loan"). Such payments to the
City will be on similar terms and conditions as provided in the Construction Loan. as set
forth in separate loan documents. In any event, the Purchase Price shall be paid in full,
together with accrued interest at the rate of 5.5 percent per annum on the unpaid balance
of the Purchase Price commencing on the date of Closing, no later than 36 months after
the Closing.
7. Public Plaza Area Riverwalk Recreational Trail.
Any reference in Section 3.5 of the original Redevelopment Agreement to the Public
Plaza is hereby deleted. The following shall be added to Section 3.5:
Developer may close and remove the riverwalk recreational trail located in
Phase II (the "Trail") during the construction of the Phase II
Condominium Tower. Within a reasonable time period after the
completion of the construction of the Phase II Condominium Tower,
Developer shall repair and replace the Trail. Developer shall coordinate
with the City Parks.Department to provide an alternate route for trail users
during construction.
8. Assignment and Assumption of Redevelopment Agreement.
Riverfront Partners LLC hereby assigns to Riverfront Holdings LLC all of its rights, title
and interest under the Redevelopment Agreement, as amended herein, and Riverfront
Holdings LLC hereby agrees to assume Riverfront Partners LLC's obligations under the
Redevelopment Agreement, as amended herein.
3
CITY OF OMAHA, NEBRASKA, a municipal
corporation
By: 6/mod/
Jim le,Mayor
ATTEST: AP T F
By: /ot,T/6
Buster"Brown, City Clerk' Paul Paul D. Kratz, City ttorney
RIVERFRONT PARTNERS, LLC, a Nebraska
limited liability company, Borrower .
By: Riverfront Holdings, LLC, a Nebraska limited
liability company,a Member
By:
Kim R. McGuire, Manager
By:
John C.Kinnear III, Manager
RIVERFRONT HOLDINGS LLC,
a Nebraska limited liability company
By:
Kim R.McGuire, Manager
By:
John C. Kinnear,III, Manager
4
CITY OF OMAHA, NEBRASKA, a municipal
corporation
By:
Jim Suttle,Mayor
ATTEST: APPROVED AS TO FORM:
By:
Buster Brown, City Clerk Paul D. Kratz, City Attorney
RIVERFRONT PARTNERS, LLC, a Nebraska
limited liability company, Borrower
By: Riverfront Holdings, LLC, a Nebraska limited
liability company, a Member
By: -�-
Kim R. McGuire, Manager
By:
John C. Kinnear III, Manager
RIVERFRONT HOLDINGS LLC,
a Nebraska limited liability company
By: /11.cX).
Kim R.McGuire, Manager
By:
John C.Kinnear, III, Manager
4
r
CITY OF OMAHA, NEBRASKA, a municipal
corporation
By:
Jim Suttle,Mayor
ATTEST: APPROVED AS TO FORM:
•
By:
Buster Brown, City Clerk Paul D. Kratz, City Attorney
RIVERFRONT PARTNERS, LLC, a Nebraska
limited liability company, Borrower
By: Riverfront Holdings, LLC, a Nebraska limited
liability company,a Member
By:
Kim R. McGuire, Manager
By: \t•
' C. Kinnear III,Manager
RIVERFRONT HOLDINGS LLC,
a Nebraska limited liability company
By:
Kim R.McGuire, Manager
e
By:
J.II C.Kinnear,III, Manager
•
I hereby certify '.(hat th3 foregoing is a true
and correct copy 01 :: original document
now on file in Ci6 er k's Office.
4
Buster Brown,-City Clerk,City of Omaha
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.NoucE T° BL THE DAILY RECORD
The following Ordinance has been set for
City Council hearing on July 20, 2004, at ,� - TT -
2:00 p.m., in the Legislative Chambers, OF O MAHA
OmahelDouglas Civic Center, 1819 Farnam
Street, at which hearing all persons inter- RONALD A. HENNINGSEN, Publisher
estedmay be
heard. PROOF OF PUBLICATION
AN ORDINANCE approving the Redevel-
opment Agreement between the City of
Omaha and Riverfront Partners, LL.C., a UNITED STATES OF AMERICA,
Nebraska limited liability company, for the
sale and redevelopment of City owned land, The State of Nebraska,
and provide for an effective date (Riverfront District of Nebraska, SS.
Plaza and Riverfront Drive).
BUSTER BROWN, County of Douglas,
7-16-04 City Clerk City of Omaha,
LYNDA K.HENNINGSEN
being duly sworn,deposes and says that she is
ASSOCIATE PUBLISHER
of THE DAILY RECORD, of Omaha, a legal newspaper, printed and
published daily in the English language, having a bona fide paid
circulation in Douglas County in excess of 300 copies, printed in
Omaha,in said County of Douglas,for more than fifty-two weeks last
past; that the printed notice hereto attached was published in THE
DAILY RECORD,of Omaha,on
July 16 , 2004
er during that time was regularly published and
•
qthe Coun of Dougl d State of Nebraska.
Ei;47...1v.p"\
ubs bed in my presence an orn to before
.
•
ab$isher's`Fa:: •-i ..7 0 me this 16th day of
.rt_J
diao.14 l Copieso4 Jul 20�_
• slyl'For }• A. •• 70
eQF NEB Notary Pub in o obgias Eounty,
of Neb asks
Y
"NOTICE TO PUBLIC' THE DAILY RECORD
ORDINANCE NO.36716
AN ORDINANCE approving the-Redevel- OF OMAHA A
opment Agreement between the City of ��1[�
Omaha and Riverfront Partners, L.L.C., a
Nebraska limited liability company, for the RONALD A. HENNINGSEN, Publisher
ate redevelopment City owned land, PROOF OF PUBLICATION
and provide for an effective date (Riverfront
Plaza and Riverfront Drive).
SUMMARY:
AN ORDINANCE approving the Redevel- UNITED STATES OF AMERICA,
opment Agreement between the City of
Omaha and Riverfront Partners, L.L.C., a The State of Nebraska, SS.
Nebraska limited liability company, for the District of Nebraska,
sale and redevelopment of City owned land,
and provide for an effective date(Riverfront County of Douglas,
Plaza and Riverfront Drive). City of Omaha,
PASSED: July 27,2004,7-0
APPROVED BY:
MIKE FAHEY 7/29/04 LYNDA A. HENNINGSEN
MAYOR OF THE
CITY OF OMAHA BUSTER BROWN, beingdulydeposesand says that she is
sworn,
City Clerk
8-4-04 ASSOCIATE PUBLISHER
of THE DAILY RECORD, of Omaha, a legal newspaper,printed and
published daily in the English language, having a bona fide paid
circulation in Douglas County in excess of 300 copies, printed in
Omaha,in said County of Douglas,for more than fifty-two weeks last
past; that the printed notice hereto attached was published in THE.
DAILY RECORD,of Omaha,on
August 4, 2004
That- aid-'Newspaper during that time was regularly published and
in eptil the C • of Dou as d State of Nebraska.
NOT Y ly.9
Su scribed in my presence an orn to before
l�j¢he t ie 44 • me this 4th day of
EXPIRES August 04
ditional Copies t 20
T9TCCOF NOV' Notary Pub c o ounty,
e of Nebraska