RES 2004-0841 - Redevelopment agmt with Beacon Partners LLC for East Omaha redevelopment plan OWNER'S AFFIDAVIT
STATE OF NEBRASKA
) SS.
COUNTY OF DOUGLAS
THE UNDERSIGNED,BEING DULY SWORN ACCORDING TO LAW,DEPOSES AND SAYS:
1. THE UNDERSIGNED IS THE OWNER ("THE OWNER") OF ALL THAT CERTAIN PROPERTY DESCRIBED IN CHICAGO
TITLE INSURANCE COMPANY'S COMMITMENT FOR TITLE INSURANCE NO.20042926("THE PROPERTY").
2. THAT THE UNDERSIGNED HAS THE ABILITY TO EXECUTE ALL INSTRUMENTS NECESSARY TO MORTGAGE OR
CONVEY THE PROPERTY.
3. AS OWNER, UWE HAVE PERSONAL FAMILIARITY WITH THE MANAGEMENT AND OPERATION OF THE PROPERTY,
INCLUDING THE EXISTENCE OF ANY TENANCIES, LEASES, PARTIES IN POSSESSION AND OTHER OCCUPANCIES, AND
PAYMENT OF TAXES AND ASSESSMENTS IN CONNECTION HEREWITH.
4. THE OWNER'S ENJOYMENT OF THE PROPERTY HAS BEEN PEACEFUL AND UNDISTURBED AND THE TITLE TO THE
PROPERTY HAS NEVER BEEN DISPUTED OR QUESTIONED TO MY KNOWLEDGE,NOR DO UWE KNOW OF ANY FACTS BY
REASON OF WHICH TITLE TO, OR POSSESSION OF THE PROPERTY MIGHT BE DISPUTED OR QUESTIONED, OR BY
REASON OF WHICH ANY CLAIM TO THE PROPERTY OR ANY PORTION THEREOF MIGHT BE ADVERSELY ASSERTED.
5. A COMPLETE LIST OF ALL PARTIES IN POSSESSION ("TENANTS") OF ANY PORTION OF THE PROPERTY IS
ATTACHED HERETO AND MADE A PART HEREOF. THERE ARE NO OTHER TENANCIES, LEASES, PARTIES IN
POSSESSION OR OTHER OCCUPANCIES OF THE PROPERTY,AND THAT ALL TENANTS ARE AS TENANTS ONLY,WITH NO
RIGHT OF FIRST REFUSAL OR OPTIONS TO PURCHASES.
6. THAT ALL MANAGEMENT FEES AND SITE AND/OR ASSESSMENT FEES,ARE FULLY PAID.
7. THAT THERE ARE NO UNRECORDED DOCUMENTS AFFECTING TITLE TO THE PROPERTY.
8. UWE HAVE HAD NO NOTICE OF ANY TAXES AND/OR SPECIAL ASSESSMENTS AFFECTING THE PROPERTY OTHER
THAN THOSE SHOWN ON THE COMMITMENT;FURTHER,ALL REAL ESTATE TAXES ARE PAID IN FULL.
9. I/WE HAVE RECEIVED NO NOTICE OF ANY VIOLATION OF ANY COVENANTS, CONDITIONS OR RESTRICTIONS, IF
ANY,AFFECTING THE PROPERTY.
10. THERE ARE NO UNPAID CHARGES FOR TAXES, WATER AND/OR SEWER SERVICES OR UNPAID SPECIAL
ASSESSMENTS FOR ITEMS SUCH AS IMPROVEMENTS FOR SIDEWALKS, CURBS, GUTTERS, SEWERS,ETC.,NOT SHOWN
AS EXISTING LIENS IN THE PUBLIC RECORDS.
11. THERE ARE NO UNPAID BILLS OR CLAIMS FOR LABOR OR SERVICES PERFORMED OR MATERIALS FURNISHED OR
DELIVERED DURING THE LAST 9_ MONTHS FOR ALTERATIONS, REPAIR, WORK, OR NEW CONSTRUCTION ON THE
PROPERTY, INCLUDING BUT NOT LIMITED TO TENANT WORK, EXCEPT
FOR:
12. I/WE KNOW OF NO CONTRACT FOR THE MAKING OF REPAIRS OR IMPROVEMENTS ON THE PROPERTY EXCEPT AS
FOLLOWS: CONTRACTS WITH METROPOLITAN UTILITIES DISTRICT FOR THE REMOVAL OF GAS AND WATER MAINS
FROM THE PROPERTY FOR THE BENEFIT OF THE BUYER.
13. NOTHE OWNER,IN BANKRUPTCY HAS EVER BEEN INSTITUTED BY OR AGAINST NOR HAS THE
OWNER MADE ANY ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
14. THERE IS NO ACTION OR PROCEEDING RELATING TO THE PROPERTY IN ANY STATE OR FEDERAL COURT IN THE
UNITED STATES, NOR ARE THERE ANY STATE OR FEDERAL JUDGMENTS OR ANY FEDERAL LIENS OF ANY KIND OR
NATURE WHATEVER WHICH NOW CONSTITUTES A LIEN OR CHARGE UPON THE PROPERTY.
15. THIS AFFIDAVIT IS GIVEN TO INDUCE CHICAGO TITLE INSURANCE COMPANY TO ISSUE ITS POLICY OR POLICIES
OF TITLE INSURANCE WITH FULL KNOWLEDGE THAT IT WILL BE RELYING UPON THE ACCURACY OF SAME.
CITY OF OMAHA Approved as to Form
;;1`"ta�`''t`a � 41710
X X Wiz- , c�
By: Assistant City Attorney
# I I 6502.v01 8/16/2004 11:54 AM O%\rer's Affidavit(rev) ! ,
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS, that the CITY OF OMAHA, a Municipal
Corporation in the State of Nebraska, hereinafter referred to as CITY, in consideration of One
Dollar ($1.00) and other valuable consideration in hand paid, does hereby grant, bargain, sell,
convey and confirm unto Beacon Partners, LLC, a Virginia limited liability company, hereinafter
referred to as Grantee, the following described real estate, situated in the County of Douglas and
State of Nebraska to-wit:
Lot 1, Final Plat, DHS/INS Site Addition, being a Replat of a portion of Block 8 and
Blocks 9, 10 and 11, Goff Terrace, an addition to the City of Omaha, Douglas County,
Nebraska recorded July 29, 2004, as Instrument No. 2004100265 in the records of
Douglas County, Nebraska
together with all the tenements, hereditaments, and appurtenances to the same belonging, and all
the estate, title, claim or demand whatsoever of the CITY of, in, or any part thereof.
TO HAVE AND TO HOLD the above described premises, with the appurtenances, unto
the Grantee and to its successors and assigns forever, and the CITY for itself and its successors
and assigns, do covenant with said Grantee and its successors and assigns that the CITY is
lawfully seized of said premises, that they are free from encumbrance except those of record, that
the CITY has good right and lawful authority to sell the same and that the CITY will and its
successors and assigns shall warrant and defend the same unto the said Grantee and its successors
and assigns forever, against the lawful claims of all persons whomsoever.
IN WITNESS WHEREOF, the CITY OF OMAHA, a Municipal Corporation, has caused
these presents to be executed by its Mayor and its Corporate Seal to be affixed hereto as of the
17`h day of August, 2004.
THE CITY OF OMAHA,
(Corporate Seal) A Municipal Corporation
By: YIA-A-10-4 p7
ATTEST: APPROVED AS TO FORM:
C Y CLE ASSISTANT CITY ATTORNEY
Deed to Beacon(rev)
Warranty Deed
Page -2-
STATE OF NEBRASKA
) SS
COUNTY OF DOUGLAS )
On this/71 day of Cix-k-o.c.L--t" , 2004, before me, the undersigned, a Notary Public in
and for said County, personally came 'z'h ti.l x.. 4e1._c.ki_ , Mayor and
/'5 aL.JL i-6-1 rn , City Clerk of the City of Omaha, a Municipal Corporation, to
me personally known to be the Mayor and the City Clerk and who executed the above
conveyance, and acknowledged the execution thereof to be the voluntary-act and deed of the City
of Omaha, a Municipal Corporation, and that the Corporate Seal of the City of Omaha was
thereto affixed by its authority.
In testimony whereof, I have hereunto set my hand and affixed my Notary Seal at Omaha
in Douglas County, on the day and date last above written.
GENERAL NOTARY-State of Nebraska
CYNTHIp.I.FORD 0 (- tieL. f.
�' My Comm.Bp.Aup.16,2001
NOTARY PUBLIC
My Commission expires: '//t /O 7
AFFIDAVIT
STATE OF NEBRASKA)
) SS:
COUNTY OF DOUGLAS)
Mike Fahey , of lawful age and being first duly sworn, on his oath deposes and
says:
. 1. The City of Omaha is the owner of a tract of land ("the Land") in Douglas
County, Nebraska, described as Lots 4 and 5 in Block 11 off Goff Terrace-,-a- subdivision in
Douglas County, Nebraska (now a portion of Lot 1 and Outlot "A", FINAL PLAT,
DHS/INS SITE ADDITION, being a replat of a portion of Block 8 and all of Blocks 9, 10
and 11, Goff Terrace, an addition to the City of Omaha, Douglas County, Nebraska,
recorded July 29, 2004, as Instrument No. 2004100265 in the records of Douglas, County,
Nebraska).
2. Affiant has been familiar with the Land since before 1978,
3. Affiant and his predecessors in title have been in actual, open, notorious,
exclusive and continuous possession of the Land, under a belief of ownership, since before
1978 to the present date.
4. Said possession has consisted of the following acts:
Holding and maintaining said land as a site for future redevelopment.
4. Affiant and his predecessors in title have paid any real estate taxes due on the
Land for many years.
5. No claim of a right to possession or ownership has ever been made by anyone
claiming adversely to affiant.
AND FURTHER AFFIANT SAITH NAUGHT.
1 r ►'�_ f � 8�7/b' /
-- 7
Affiant
APPROVED AS TO F
I
ASSISTANT CITY ATTORNEY I
40e,
City Clerk
Harwood Omaha(Affidavit)
i
.. .
JURAT
Subscribed and sworn to before me, a Notary Public for the County and State
aforesaid,this /7El— day of Cu.c_/0....it , 20c' .
GENERAL NOTARY-State of Nebraska
CYNTHIA I.FORD
Jim My Comm.Exp.Aug.16,2007
•
..3.�,c,ti k.,..
,_ �.9_ 0,2 .E
Notary Public
Harwood_Omaha(Affidavit)
4
•
ot,AAHA,Nob
`�,`, 4,s1 RECEIVED Planning Department
ul� � > Omaha/Douglas Civic Center
W yti •.1 t1 1819 Farnam Street,Suite 1100
ri M- 014 JU N 2 5 P 2' 0 Omaha,Nebraska 68183-0002
%o�ro (402)444 5200
�4TBo FEBRVI CITY C E R!R (402)444-5150
t t e !"K Telefax 402 444-6140
City of Omaha h' 1A�[ `� 3 �t :�r� ( )
Robert C.Peters
Mike Fahey,Mayor Director
June 29, 2004
Honorable President
and Members of the City Council,
The attached proposed Resolution approves a Redevelopment Agreement between the City of
Omaha and Beacon Partners, LLC for the development of a new facility for the United States
Department of Homeland Security's Bureau of Immigration and Customs Enforcement and
Bureau of Customs and Immigration Services. The facility will be located at Avenue "H" and
North 15th Street East in the East Omaha Redevelopment Plan area.
This Agreement begins the implementation of the Harwood & Associates Tax Increment
Financing Redevelopment Project Plan approved by the City Council on June 8, 2004. Beacon
Partners, LLC (Harwood & Associates) is the developer of the Department of Homeland
Security's Omaha District Office that serves the States of Nebraska and Iowa. The planned
facility will be approximately 71,000 square feet and it is projected that employment levels will
grow from 137 to 160 staff members in the new facility.
The agreement provides for the City to sell approximately 10.34 acres of land for $400,000 to
Beacon Partners and to provide site improvements and public improvements. The developer will
construct the facility and lease the facility to the U.S. Government Services Administration.
The project account is the 2004 Northeast Sewer Connection Fund, Airport Industrial Park/East
Omaha Detention Cell account, Fund No. 13181, Organization No. 116926. This account will
subsequently be reimbursed by Tax Increment Financing funds generated by the project.
Your favorable consideration of this Resolution is requested.
Sincerely, Referred to City Council for Consideration:
Peter Date a or's ffice /Date
il
,,d�- Robert C. y
Planning Director
Approved as to Funding:
(ojsloa
Carol A. Ebdon , Date
Finance Director J�
P:\PLN2\10942pjm.doc
REDEVELOPMENT AGREEMENT
BY AND BETWEEN BEACON PARTNERS,LLC
AND THE CITY OF OMAHA,NEBRASKA
Regarding
THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY'S
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT and
BUREAU OF CUSTOMS AND IMMIGRATION SERVICES
THIS REDEVELOPMENT AGREEMENT (the "Agreement") is entered into by and between
the City of Omaha(the "City"), a Nebraska metropolitan class city acting as a redevelopment
authority pursuant to the Nebraska Community Development Law(the "Act"), and Beacon
Partners, LLC (the "Developer") (collectively the "Parties"):
WHEREAS, a Memorandum of Understanding (the "MOU") was entered into on the 6th day of
January, 2004, by and between the General Services Administration (the "GSA"), and the City,
regarding the United States Department of Homeland Security's Bureau of Immigration and
Customs Enforcement(the `RICE") and Bureau of Customs and Immigration Services (the
"BCIS"); and
WHEREAS, the East Omaha Redevelopment Plan Amendment Four was approved by the City
of Omaha City Council on the 8th day of June, 2004, after recommendation of the City of Omaha
Planning Board and due advertisement providing for a redevelopment project to be constructed
by the Developer(formally identified as Harwood and Associates); and
WHEREAS, the MOU provides for the development of the BICE/BCIS regional offices in the
Redevelopment Plan area; and
WHEREAS, the GSA has competitively procured a build-to-suit lease (the "Lease") of
approximately 71,000 ANSIIBOMA Office Area square feet of office and related space to be
occupied by the BICEBCIS in the area of the East Omaha Industrial Park (the "Building") and
on-site parking and landscaped area(the "Leasehold Property"); and
WHEREAS, the GSA has entered into the Lease with the Developer; and
WHEREAS, the City will sell to the Developer the Leasehold Property consisting of
approximately 10.34 acres in the East Omaha Industrial Park generally bound by North
15th Street East,North 18th Street East, Avenue G and Avenue H (the "Property"), as more
particularly described on Exhibit"A" and the Site Plan attached hereto as Exhibit"Al".
NOW,THEREFORE, in consideration of the foregoing, and the mutual covenants and
promises set forth below, the Parties hereto agree as follows:
Section 1. 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:
01-602789.03
•
1.1 The Property to be transferred by the City shall be environmentally clean. The
City shall indemnify, defend, and hold harmless the GSA, the BICEBCIS, the
Developer, and any other owner or occupant of any portion of the Property, and each
of those persons' or entities' respective employees, agents, successors and/or assigns
(hereinafter referred to individually and collectively as 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, on account of the existence
of any"hazardous substance" as defined in the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), any regulations
promulgated thereunder, and any similar Nebraska statute, including all petroleum
products (both crude oil and 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, notwithstanding the exclusion of those substances from the
definition of"hazardous substance" in CERCLA, (collectively for this Agreement
"Hazardous Substance"or"Hazardous Substances") at, on, or under the Property
transferred from the Property through subsurface migration or intentional
transportation connected with any remediation or removal activity. 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 this indemnity. This indemnity shall exclude any
Hazardous Substances placed at, on, or under the Property by an Indemnified Party
after the date of this Agreement, except that any claims that environmental conditions
were exacerbated by construction,presence or maintenance of buildings, structures,
walkways and green spaces to be developed and maintained by the Developer shall
not be excluded from the City's indemnification of the Indemnification Parties.
Notwithstanding the foregoing, Developer acknowledges that it has information from
the GSA that a portion of the Property was previously used for operation of a landfill
and that careful analysis of the Property's soils and load bearing capabilities should
be conducted. Such information was conveyed in writing as a portion of the
documents issued by the GSA for the open competitive process for the selection of
the Developer.
The City represents and warrants as follows:
a. The City has prepared Phase I and Phase II Environmental Site Assessment
Reports for all parcels of the site in accordance with American Society for
Testing and Materials (ASTM Practice E 1527-00).
b. The City shall prepare and implement a Characterization of Soils and Surface
Water and a Groundwater Characterization satisfactory to Developer.
c. The City shall, in the event required, design and implement a remediation
proposal or workplan which will achieve the Remediation Objectives, if any,
including but not limited to the studies referred to in clauses "a" and "b"
01-602789.03 2
above. If Hazardous Substances are discovered that are not accounted for in
such remediation proposal or workplan, such proposal or workplan shall be
amended by the City to provide for remediation of such Hazardous
Substances.
d. The City shall design and implement the remedy, or remedies, selected by
GSA and approved by the Developer that will meet Remediation Objectives.
e. The City shall operate and maintain all Future Remediation and Monitoring
Measures indefinitely, but may discontinue any one or more Future
Remediation and Monitoring Measures as such time as Developer determines,
in writing,that such Measure(s) is (are)no longer necessary and may,
therefore, be terminated.
f. The City shall provide the Developer's designated environmental consultants
with copies of all reports and correspondence submitted to GSA, and will
meet and confer with the Developer and its designated environmental
consultants prior to presenting a first draft remediation proposal or workplan,
if needed,to Developer and prior to proposing Remediation Objectives to
Developer.
1.2 The City shall convey Marketable Title, as defined below, to the Property to the
Developer for the sum of Four Hundred Thousand ($400,000) Dollars (the "Purchase
Price"). The net Purchase Price shall be paid at closing. City shall pay closing costs
and title insurance premium. City agrees to use its best efforts to close and convey
the Property to Developer within thirty (30) days of the City's receipt of written
notification from the Developer that the Developer is in the position to accept title to
the parcel and to begin construction of the proposed Building. The net Purchase Price
received by City shall be used as part of the financing for either or both Public
Improvements and/or reimbursements to the Developer for Developer Improvements
as defined herein. "Marketable Title" shall mean fee simple absolute title free and
clear of all liens, encumbrances, claims, reversionary interests, leasehold estates,
easements, rights-of-way, covenants, restrictions, special assessments, delinquent
taxes and party-wall and similar agreements, excepting only easements for sewers and
utilities shown on Site Plan.
1.3 City shall be responsible for the design, installation, construction and inspection
costs of the Public Improvements, as described on Exhibit"B", necessary to serve
and operate the Property Improvements. The Public Improvements shall include, but
not be limited to, improvements to both"H" and 15th Streets, and a fully functioning
traffic signal at Avenue H and Abbott Drive. The City will not deny or delay the
issuance of any certificate of occupancy or other permit required for the lawful use
and occupancy of the Property, which denial or delay is solely associated with the
City's failure to timely perform any of the duties or obligations set forth in this
Agreement. The City will cooperate with the Developer to obtain all approvals and
permits necessary for the completion of the Public Improvements from any and all
governmental authorities with jurisdiction over the same.
1.4 The City shall complete the Public Improvements on or before the 30th day of
July, 2005. Because BICEBCIS needs to take occupancy of the proposed office
01-602789.03 3
building on or before the 30th of July, 2005, the Parties agree to use their best efforts
to effectuate the intent of this Agreement.
Section 2. OBLIGATIONS OF THE DEVELOPER. The Developer shall take all
actions necessary, and executing documents, to carry out the intent of this Agreement, including
but not limited to the following:
2.1 The MOU provides that the Property to be transferred by the City to Developer
shall be ready to build upon and above the five hundred (500) year flood plain as
determined in the last detailed hydraulic analysis of the Missouri River through the
Omaha Council Bluffs area completed by the Omaha District of the Corps of
Engineers in 1977. In order to expedite the Project and provide overall cost savings,
the Developer shall contract for the site work necessary to accomplish the above tasks
and be reimbursed for their costs by the City. Such tasks are collectively defined as
the "Developer Improvements" and fully described on Exhibit"C". The Parties agree
that this Agreement does not release the City from any obligation that may exist
under the MOU.
2.2 After the Property has been conveyed to the Developer, the Developer shall
construct the Building, as defined above, on the property, for approximately
$11,000,000, to be initially occupied by the BICE/BCIS under the Lease as a single
tenant building with approximately 300 on-site parking spaces, as shown on the Site
Plan, for BICE/BCIS employees, guests, and those having business with the
BICEBCIS (collectively the "Private Improvements").
2.3 The Developer shall be responsible for the costs of connecting the Private
Improvements to the public electrical, water, sewer, gas, and telephone lines existing
in the abutting right of way or brought to the property line of the Property, and funded
as a Public Improvement or Developer Improvement. The City will specifically
direct the location of these utilities. Utility service and meters serving the Property
shall be maintained in the name of GSA or Developer and GSA or Developer shall be
solely responsible for the charges incurred. All utility lines within the Property must
be installed underground.
2.4 The Developer agrees to comply with all federal, state, and local laws, ordinances,
rules and regulations, including but not limited to building, fire, electrical,
mechanical, and safety codes, applicable to the improvements on the Property.
2.5 Developer shall be required to maintain the Property in a clean, safe, and sightly
condition. Developer shall be responsible, at its cost, for snow removal on pedestrian
access walkways and parking spaces within the Property. The City shall be
responsible for public street maintenance and snow removal.
2.6 Developer shall submit, for City approval, its storm water drainage plan in
advance of commencement of construction and to design such plan in a manner that
will minimize the effect of storm water drainage and discharge on walkways,public
trails and other public amenities on the Property or in the areas surrounding the
01-602789.03 4
•
Property. Wherever possible,the storm water plan shall minimize volume and
velocity of storm water runoff. Techniques including the utilization of underground
storm water drains,pipes and lines and temporary and/or permanent storm water
storage structures shall be evaluated and utilized where appropriate and reasonable.
Section 3. MATTERS CONCERNING FINANCING. The Parties shall take all
actions necessary, and executing documents, to carry out the intent of this Agreement, including
but not limited to the following:
3.1 The City shall reimburse the Developer for the total cost of designing and
constructing the Developer Improvements. The City shall make payment of these
reimbursements to the Developer within 30 days of receipt of Developer's written
request and certification that the particular task or tasks have been completed, or in
the case of progress payments,partially completed, in accordance with the Agreement
or the plans and specifications.
3.2 The City intends to fund a portion of its cost of this redevelopment by the
issuance of bonds (collectively the "Redevelopment Bond") secured in part by the
excess ad valorem taxes caused by the redevelopment of the Property and the
construction of the Private Improvements.
3.3 During the period that the Redevelopment Bond is outstanding, the developer
shall (1)not protest a real estate ad valorem tax payment of the Property of
$120,000.00 or less after substantial completion of the Private Improvements based
upon an estimated initial valuation by the Douglas County Assessor considering a fair
market rental rate; (2) not convey the Property or structures thereon to any entity
which would be exempt from the payment of real estate taxes; (3) not apply to the
Douglas County Assessor for the structures, or any portion thereof, to be taxed
separately from the underlying land; (4) maintain insurance for ninety percent(90%)
of the full value of the structures on the property; (5) in the event of casualty, apply
such insurance proceeds to their reconstruction; and (6) cause all real estate taxes and
assessments levied on the Property to be paid prior to the time such become
delinquent. The Developer shall be given reasonable time to cure any default of the
above covenants. In lieu of the above, the Developer may surrender any remaining
amount outstanding of the Redevelopment Bond to City. Each of the foregoing
covenants shall be referenced in a Notice of Redevelopment Agreement to be
recorded with the Douglas County,Nebraska Register of Deeds. The Developer
agrees to include the same restrictions in any subsequent sale, assignment,
sale-leaseback or other transfer of the Property, but shall not be responsible otherwise
for the actions of the third parties if such third parties breach these covenants if the
Developer no longer owns the Property.
Section 4. MISCELLANEOUS.
4.1 Equal Employment Provisions. Attached hereto as Exhibit"D" are the equal
employment provisions of this Agreement, wherein the Developer is referred to as the
"Contractor."
01-602789.03 5
4.2 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.
4.3 Captions. Captions used in this Agreement are for convenience and are not to be
used in the construction of this Agreement.
4.4 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.
4.5 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.
4.6 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.
4.7 Entire Agreement. This Agreement contains the entire agreement of the parties
hereto with respect to the subject matter hereof. No representations were made or
relied upon by any party hereto other than those that are expressly set forth herein.
No agent, employee, or other representative of either party is empowered to alter any
of the terms hereof unless done in writing and signed by an authorized officer of the
respective parties.
4.8 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.
4.9 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. The attached Site Plan
may be amended with the approval of the Planning Director in the manner provided
by the City of Omaha zoning code, as it may from time to time exist. In that regard,
the parties hereto hereby nominate the following, 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: Planning Director
For the Developer: Manager
01-602789.03 6
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.
4.10 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.
4.11 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.
4.12 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.
4.13 Delays. 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
Redevelopment Project One proximately caused by External Causes (as defined
below). In addition, to the extent the City or the Developer is prevented or delayed in
timely performing its obligations hereunder due to External Causes, its performance
shall be excused for so long as any such External Causes stand as an impediment to
such performance and the amount of time for such party to fulfill its obligations under
this Agreement shall be extended for a like period of time. However, the party whose
performance hereunder is thus impeded shall use reasonable efforts to eliminate or
overcome such delays. If the City or the Developer is delayed in the performance of
its obligations hereunder due to External Causes, then the other party shall be entitled
to an extension for a like period of time for performance of its obligations reasonably
related to the obligations the performance of which is delayed by External Causes.As
used herein, the term "External Causes" shall mean litigation or other legal
proceedings, including administrative governmental actions or enforcement
proceedings brought by someone else against the Developer or the City, or either or
both, or war, insurrection, natural disaster, acts of God, strikes, or latent defects in the
conditions of any Redevelopment Project Area, but shall not include the failure to
source the necessary funds for performance or other causes within the reasonable
control of a party.
01-602789.03 7
• 4.14 Successors and Assigns. The benefits and obligations of this Agreement shall
run with the Property and also inure to the benefits of Developer's secured lenders.
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: do Damon Harwood Company, Inc.
11350 Random Hills Road, Su 800
Fairfax,VA 22030
Attention: Damon Harwood
Section 6. EXHIBITS. The exhibits attached to this Agreement and referred to
herein are part of this Agreement and are incorporated herein by reference.
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.
CITY OF OMAHA
By: /
Title: Mayor of the City o maha
Date: 9.1 2.e19/
Attest:.
CityC
A roved As to F rm.
City Attorney
01-602789.03 8
•
BEACON PARTNERS, LLC
By:
Title: MASia ;K ,j "ie.% ioel
Date: -71.4 v. a a..8" 'COO£f
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
The foregoing Agreement was acknowledged before me this /•-,e- day of
, 2004, by The Honorable Michael Fahey, who is the Mayor of the City of
Oma a,Ne raska, on behalf of the City.
GENERAL NOTARY-State of Nebraska
CYNTHIA I.FORD Notary Yublic
My Comm.Exp.Aug.16,2007
My Commission expires: 6/ 7 G'/0 7
STATE OF 1,2fr1.4010... )
) ss.
COUNTY OFej.e )
The foregoing Agreement was acknowledged before me this Q.V day of
al u I c , 2004, by 1D4 al 04 H wrAr d , Ave''. Mom be r of
Beacon Partners, LLC, on behalf of the company. 7i'
a--AdZio00-0,----
otary Public
My Commission expires:
Notary Rubllo-State of Nevada
` `"•=' County of Clark
JEANNE M.ANDERSON
�, Q ,';;.,•;;s'` My Appointment Expires
No:9e-4587-1 September 17,2006
01-602789.03 9
EXHIBIT A
To East Omaha redevelopment Agreement Amendment Four
LEGAL DESCRIPTION — DEVELOPER"S PROPERTY
LOTS 1 THRU 7 AND A PORTION OF LOTS 16 THRU 22, BLOCK 8; AND LOTS 1
THRU 22, BLOCK 9; AND LOTS 1 THRU 22, BLOCK 10; AND LOTS 12 THRU 22
AND A PORTION OF LOTS 1 THRU 11, BLOCK 11, ALL IN GOFF TERRACE, AN
ADDITION TO THE CITY OF OMAHA, DOUGLAS COUNTY, NEBRASKA,
TOGETHER WITH THE ENTIRE RIGHT OF WAYS OF 16TH STREET EAST, 17TH
STREET EAST AND 17TH AVENUE EAST LOCATED ADJACENT TO AND
BETWEEN SAID BLOCKS, ALL BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS: REFERRING TO THE NORTHWEST CORNER OF LOT 22 OF SAID
BLOCK 8; THENCE N 87°19'40" E (ASSUMED BEARING), 80.00 FT. ON THE
SOUTH RIGHT OF WAY LINE OF AVENUE "H" TO THE POINT OF BEGINNING;
THENCE S 02°58'31" E, 336.80 FT. TO THE SOUTH LINE OF SAID LOT 16,
BLOCK 8; THENCE N 87°17'58" E, 133.84 FT. ON THE SOUTH LINE OF SAID
LOTS 16 AND 7, BLOCK 8 TO THE SOUTHEAST CORNER OF SAID LOT 7;
THENCE S 02°55'58" E, 193.10 FT. ON THE WEST RIGHT OF WAY LINE OF 16TH
STREET EAST TO THE NORTH RIGHT OF WAY LINE OF AVENUE "G";
THENCE N 87°19'32" E, 764.88 FT. ON SAID NORTH RIGHT OF WAY LINE OF
AVENUE "G"; THENCE N 02°55'17" W, 529.80 FT. TO THE SOUTH RIGHT OF
WAY LINE OF SAID AVENUE "H"; THENCE S 87°19'40" W, 899.08 FT. ON SAID
RIGHT OF WAY LINE TO THE POINT OF BEGINNING, CONTAINING 10.34
ACRES MORE OR LESS.
•
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EXHIBIT B
PUBLIC IMPROVEMENTS
Off-site Improvements
Avenues 'G' and 'H' Roadway& Utility work
N 15th St East Roadway& Utility work
Storm drainage pipe &structures
Seeding , sod and landscaping (if required); Stabilization of fills outside property limits
Expansion of the Regional City Owned Detention Cell
Clearing, grubbing, excavation, grading and backfilling
Fence removal, modification, installation
Liner installation, if required
All concrete headwalls, plumes, channels, etc.
Seeding, sod and landscaping
Mechanical piping, pumps and equipment, electrical, controls, if required
General Conditions Costs:
Any and all survey work required for design, and/or to start, support and complete construction
Any and all field and laboratory testing of soils
Staff Costs for on site supervision; Project management expenses, costs &fees
Telephone, fax, copier, reproduction, photo, computer, courier, shipping &express, etc.
Temporary barricades, toilets, signage, safety equipment/supplies
All permit insurance, legal and bond costs
Expendable supplies such as survey stakes, string line, spay paint, etc.
Temporary facilities, water for dust control, compaction, etc.
EXHIBIT C
DEVELOPER IMPROVEMENTS
COSTS TO BE REIMBURSED TO DEVELOPER
On-site Improvements
Erosion/sediment control measures
Clearing &Grubbing, tree, foundation, slab& roadway removal
Excavation, (including undercutting), Grading, Backfilling
Utility/services demolition, removal, replacements and relocations
Concrete/excavation work for retaining walls to minimize fills
Retaining walls, stairs and handrails where necessitated by grade changes to minimize fills
Additional storm drainage piping &structures required due to grade issues
On site detention pond, fence &structures
General Conditions Costs:
Any and all survey work required for design, and/or to start, support and complete construction
Any and all field and laboratory testing of soils
Staff Costs for on site supervision; Project management expenses, costs&fees
Telephone, fax, copier, reproduction, photo, computer, courier, shipping & express, etc.
Temporary barricades, toilets, signage, safety equipment/supplies
All permit insurance, legal and bond costs
Expendable supplies such as survey stakes, string line, spay paint, etc.
Temporary facilities, water for dust control, compaction, etc.
Exhibit D
Equal employment opportunity clause.
Pursuant to Omaha Municipal Code Sec. 10-192, during the performance of this
contract, the Contractor agrees as follows:
(1) The contractor shall not discriminate against any employee or applicant
for employment because of race, religion, color, sex, age, disability or national
origin. 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. As used herein, the word
"treated" shall mean and include, without limitation, the following: recruited,
whether by 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, age, or disability.
(3) The contractor shall send to each 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 human relations director all federal
forms containing the information and reports required by the federal government
for federal contracts under federal rules and regulations, including the information
required by sections 10-192 to 10-194, inclusive, and shall permit reasonable
access to his records. Records accessible to the human relations director shall be
those which are related to paragraphs (1) through (7) of this subsection and only
after reasonable notice is give the contractor. The purpose of this provision is to
provide for investigation to ascertain compliance with the program provided for
herein.
(5) The contractor shall take such actions with respect to any subcontractor as
the city may direct as a means of enforcing the provisions of paragraphs (1)
through (7) herein, including penalties and sanctions for noncompliance;
however, in the event the contractor becomes involved in or is threatened with
litigation as the result of such directions by the city, the city will enter into such
litigation as is necessary to protect the interests of the city and to effectuate the
provisions of this division; and, in the case of contracts receiving federal
assistance, the contractor or the city may request the United States to enter into
such litigation to protect the interests of the United States.
(6) The contractor shall file and shall cause his subcontractors, if any, to file
compliance reports with the contractor in the same form and to the same extent as
required by the federal government for federal contracts under federal rules and
regulations. Such compliance reports shall be filed with the human relations
director. Compliance reports filed as such times as directed shall contain
information as to the employment practices, policies, programs and statistics of
the contractor and his subcontractors.
(7) The contractor shall include the provisions of paragraphs (1) through (7)
of this section, "Equal employment opportunity clause," and section 10-193 in
every subcontract or purchase order so that such provisions will be binding upon
each subcontractor or vendor.
2
•c-ZSA,' • CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, a Memorandum of Understanding (the "MOU") was approved by
the City of Omaha City Council on the 2nd day of December, 2003, by and between the General
Services Administration (the "GSA"), and the City, regarding the United States Department of
Homeland Security's Bureau of Immigration and Customs Enforcement (the `RICE") and
Bureau of Customs and Immigration Services (the "BCIS"); and,
WHEREAS, an amendment to the East Omaha Redevelopment Plan was
approved by the City of Omaha City Council on the 8th day of June, 2004, after recommendation
of the City of Omaha Planning Board and due advertisement; and,
WHEREAS, the MOU provides for the development of the BICEBCIS regional
offices in the Redevelopment Plan area; and,
WHEREAS, the GSA has competitively procured a build-to-suit lease of
approximately 71,000 ANSIBOMA Office Area square feet of office and related space to be
occupied by the BICEBCIS in the East Omaha Redevelopment Plan area and on-site parking
and landscaped area; and,
WHEREAS, the GSA has entered into the Lease with the Beacon Partners, LLC;
and,
WHEREAS, the City will sell to Beacon Partners, LLC the Leasehold Property
consisting of approximately 10.34 acres in the East Omaha Industrial Park generally bound by
North 15th Street East,North 18th Street East, Avenue G and Avenue H.
By
Councilmember
Adopted
City Clerk
Approved
Mayor
-C-25A.' CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
PAGE 2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF OMAHA:
THAT, the attached Redevelopment Agreement between the City of Omaha and
Beacon Partners, LLC for the development of a facility for the United States Department of
Homeland Security's Bureau of Immigration and Customs Enforcement and Bureau of Customs
and Immigration Services at Avenue "H" and North 15th Street East in the East Omaha
Redevelopment Plan area is hereby approved. The project account is the 2004 Northeast Sewer
Connection Fund, Airport Industrial Park/East Omaha Detention Cell account, Fund No. 13181,
Organization No. 116926.
P:\PLN2\110943pjm.doc APPROVED • S 1• :• ':
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CITY A • '.1 EY DATE
By •i P1416404
Councilmember
Adopted .N...2..9.2004.
City Clerk
Approved.Jr ' �--.
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