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RES 2001-2023 - Agmt for for leasehold interest of Trifinery Petroleum Services and Carbogen Corporation .,0 .BRA RECEIVED Planning Department ��s c',1. `.iW' Omaha/Douglas Civic Center a�,�j. ,? 01 A�� - O� � 1819 Farnam Street,Suite 1100 i ( p z. IO iry 4 eD FEaR� CITY CLERK Omaha,Nebraska 68183-0110 (402)444-5200 • 47' (402)444-5150 O M A N A S Telefax(402)444-6140 City of Omaha Robert C.Peters Mike Fahey,Mayor Director Honorable President and Members of the City Council, Attached herewith is a Resolution authorizing the acquisition of the leasehold interest of Trifinery Petroleum Services and Carbogen Corporation, co-lessees of facilities managed by the Dock Board of the City of Omaha. The City Council previously authorized the acquisition of the leasehold interest in an Ordinance of Necessity to implement the Gallup University Riverfront Redevelopment Project. The City of Omaha, in accordance with necessity Ordinance No. 35543 passed April 10, 2001, is purchasing this property to enable construction of a portion of the Gallup University Campus to be completed. Additionally, the site will also contain the relocated National Forest Service Building and the Pedestrian Footbridge. There may also be a portion of the property devoted to mixed-use development. The City of Omaha and the lessees have set forth their understanding and agreements with regard to the acquisition and payment for the acquisition. Further, the costs incurred will be paid from the Gallup University Riverfront Redevelopment Plan Project, Organization 1190,Fund 368, Agency 195, Year 2001 funding. Your favorable consideration and approval of this Resolution is requested. Respectfully submitted, Referred to City Co cil for Consideration: i\-h,/ p•L •ey !i c( 1— 3—©( Robert C. Peters Date Mayor's Of ce/Title Date Planning Director Approved as to Funding: 3/0/ Stanley P. mm—/i44/144 -8/ Date Finance Director • P:\Lawl\21.41 sap.doc • .. f'�1 AGREEMENT FOR CONVEYANCE OF LEASEHOLD INTEREST, IMPROVEMENTS AND BUSINESS ASSISTANCE 1. In consideration of the sum of One Dollar ($1.00) and other valuable consideration in hand paid, the receipt whereof is hereby acknowledged, the undersigned (hereinafter called the "Lessees") hereby agrees, upon the terms and conditions hereinafter stated, to convey to the City of Omaha (hereinafter called the "City"), their real property leasehold interest in the property lying and being in the County of Douglas, State of Nebraska, together with all buildings and improvements thereon, as more particularly described below: See Attached Exhibit "A" (hereinafter, "Property") 2. The purchase price for the leasehold interest of Lessees in the Property shall be as follows: Four Million Two Hundred Sixty-two Thousand Four Hundred Dollars and No/100 ($4,262,400) (hereinafter, "Leasehold Purchase Price"). Upon payment by the City to Lessees of the Leasehold Purchase Price, and the additional sums set forth in Paragraph 13.1, Lessees shall be deemed to have conveyed their leasehold interest in the Property to the City; provided, however, it is expressly understood that the Lessees shall be entitled to remain at the Property with all rights of ingress and egress and rail transportation to and from the Property, and all other rights provided under the Lease Agreement between Lessees and the Dock Board of the City of Omaha, and shall convey possession of the Property to the City no later than April 1, 2002. It is understood that, prior to April 1, 2002, City may move the entrance road to the Property to a new location to accommodate sewer work, and the City shall do so only upon reasonable advance notice to Lessees and with minimal disruption to Lessees' business. Upon approval of this Agreement by the City Council of the City of Omaha, the Lessees from that date onward shall not be liable for the payment of any rent through April 1, 2002, after which possession of the Property is to be delivered to the City free and clear of any tenants in possession. As part of the consideration hereunder, Lessees agree that they will permit engineers and City personnel upon the Property to perform inspections, and soil sampling related to redevelopment of the Property. The City agrees to provide reasonable advance notice of the need for such work to the Lessees and to arrange for mutually convenient times for such work to be performed, and agrees that such work shall not disrupt Lessees' business operations. Lessees further agree, as part of the consideration hereunder, that they will not sublet the premises. 3. The leasehold interest in the Property shall be conveyed by Lessees free and clear of all judgments and liens. The Lessees' leasehold interest in the Property (and any personal property contracted for) as of date of this Agreement, and in its present condition will be preserved and delivered intact at the time possession is given, except as modified by Paragraph 13.4 of this Agreement, or otherwise in this Agreement. Except, however, in case of loss or destruction of part or all of said premises from causes covered by the insurance thereon, the City agrees to accept such insurance recovery (proceeds to be applied as the interests of the parties appear) in Page 1 of 8 lieu of that part of the damaged or destroyed improvements and Lessees shall not be required to repair or replace same. The City shall thereupon complete the contract and accept the Property. 4. The parties agree that there are no current taxes assessed on or due respecting the Property. In the event any taxes on the Lessees' leasehold interest in the Property are assessed and become due and payable prior to the date Lessees deliver possession of the premises to the City, Lessees agree to pay their prorated portion of such taxes for the applicable tax year, subject to all rights to challenge or protest such taxes. 5. Time is of the essence in this Agreement. 6. The contract shall apply to and bind the heirs, executors, administrators, assigns and successors in interest of the respective parties. 7. Words and phrases herein, including any acknowledgment hereof shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender, according to the context. 8. The City shall pay to Lessees the Leasehold Purchase Price, plus the Capital Investment Payment specified in Paragraph 13.1,plus one-half of the Business Assistance Payment specified in Paragraph 13.1, for a total payment of$6,800,769.50, as soon as practicable upon approval of this Agreement by the City Council, but in no event later than five (5) business days thereafter. The remainder of the Business Assistance Payment, $487,272.50, shall be paid to Lessees by the City upon delivery of possession of the premises to the City. All sums payable under this Agreement shall be divided in half and paid by separate checks in equal amounts to each Lessee. Payment of all such sums shall be deemed full and just compensation for all obligations of the City hereunder and all claims which the Lessees may have or assert by reason of the possession or occupancy of the land by the City, whether acquisition be by direct purchase or through condemnation proceedings as provided in Paragraph 9 hereof. 9. In the event that the City considers it necessary or advantageous to its interests to have the Property acquired through condemnation proceedings, the Lessees agree that the sums stated in Paragraphs 2 and 13.1 shall be the fair market value of the Properly inclusive of every interest therein not expressly excepted in Paragraph 1 hereof, and shall be in full and just compensation payable by the City for the taking of the Property. The parties further agree that in the event of the institution of condemnation proceedings to cure defects not caused by Lessees, this Agreement and the acceptance thereof shall constitute and be a stipulation which may be filed in such condemnation proceedings fixing the fair market value and just compensation to be paid for the taking thereof in the amount of the contract price herein set forth. 10. The Lessees will pay One Hundred percent (100%) of any personal property taxes due and owing for the current year, if applicable. Page 2 of 8 • 11. All personal property that integrally belongs to or is part of said real estate shall be considered a part of real estate and included in this transaction, subject to the provisions of Paragraph 13.4 below. 12. Any notices which may be or is required to be given pursuant to the provisions of this Agreement shall be in writing and either hand delivered, telecopied, e-mailed or sent by prepaid overnight courier of United States mail, addressed as follows: Lessees to: Carbogen Corporation Peter Wittich Carbogen Corporation 2308 SE 21st Street Ft. Lauderdale,FL 33316 FAX: (954) 525-1357 Trifinery Petroleum Services Sanford Brass Trifinery Petroleum Services 1001 McKinney Suite 1600 Houston,TX 77002-6401 FAX: (713) 759-2003 Copy to: Stephen M. Bruckner 500 Energy Plaza 409 South 17th Street Omaha, NE 68102-6000 FAX: (402) 341-8290 E-mail: sbruckner@fraserstryker.com City's to: Frederick J. Coffman City of Omaha,Law Department Omaha/Douglas Civic Center 1819 Farnam Street, Suite 804 Omaha, NE 68183 FAX: (402) 444-5125 E-mail: fcoffman@ci.omaha.ne.us 13. Special Provisions: 13.1 The City shall pay Lessees, in addition to the Leasehold Purchase Price specified in Paragraph 2, and in accordance with the provisions of Paragraph 8, (a) Page 3 of 8 $2,051,097.00 for capital investments pursuant to Section XII of the Lease Agreement between the Dock Board and Lessees ("Capital Investment Payment") and (b) $974,545.00 for moving, relocation and reestablishment expenses ("Business Assistance Payment"). The Business Assistance Payment is not contingent on Lessees' actual relocation of their business. 13.2 Prior to delivery of possession of the Property to the City, Lessees shall remove the pumpable inventory from the storage tanks at the Property, except for the heels (approximately 6-12 inches in the bottom of the tanks) and clingage (residue on the insides of the tank walls) portion of such inventory. Lessees agree that, after the date of approval of this Agreement by the City Council, Lessees will not deposit additional inventory into the storage tanks at the Property except to the extent such inventory is needed for contracted sales to Lessees' customers. 13.3 (a) Except as otherwise provided in this Agreement, Lessees retain no liability, obligation, or responsibility to City or its successors from arising out of, or relating to any conditions or activities at or involving the Property under any Environmental Law. City hereby forever waives, releases, and covenants not to bring or assist in bringing any demand, claim, lawsuit, or any other type of administrative or judicial action, whether known or unknown, actual or contingent, against the Lessees which City may now or hereafter have or accrue which arises from or relates to the operation or violation at any time of any Environmental Laws on the Property or any other adjoining property. City reserves the right to raise any defenses it may have against any third party claims for violation of any Environmental Laws or remediation of any Hazardous Materials at the Property. (b) City shall indemnify, hold harmless and defend Lessees and their successors and assigns from and against, and shall reimburse Lessees and their successors and assigns with respect to, any and all costs and charges or remediation, clean-up, removal, disposal, response, abatement, containment, closure, restoration, monitoring or similar work and any and all fines, penalties, costs, and assessments levied or assessed against Lessees and their successors and assigns by any local, state or federal governmental entity, together with any and all claims, demands, causes of action, loss, damage, liabilities, costs, and expenses (including without limitation attorney fees and court costs) of every kind or character, known or unknown, fixed or contingent, asserted against or incurred by Lessees and their successors and assigns at any time after the execution of this agreement and from time to time thereafter (a "Claim") by reason of, or arising from, the presence of any Hazardous Material, or Hazardous Page 4 of 8 Substances or any other environmental contamination in, on or within the Property or the violation of any Environmental Laws in, on or within the Property. The foregoing indemnification shall not extend to fines, penalties or assessments levied by the Environmental Protection Agency and/or the Nebraska Department Of Environmental Quality or levied as a result of others (except the City) suing under Environmental Laws which arise out of, or are based upon any illegal criminal activity or any willful misconduct or any intentional or deliberate wrongful act of Lessees, their successors and assigns. (c) The covenant not to sue and indemnification provided herein shall not apply to any Claim arising from a Release of Hazardous Material at the Property that requires the incurrence of Response Costs and is caused by Lessees' negligence or intentional wrongdoing in the removal of equipment and improvements as provided in Paragraph 13.4 of this Agreement. (d) For purposes of this Section 13.3, the following terms have the meanings indicated: (i) "Environmental Laws" means any laws, regulations, ordinances, orders, permits, licenses, common laws, or other requirements pertaining to the protection of the environment, health or safety or persons, waste management or Hazardous Material Activity (as defined below), and includes (together with any amendments), without limitation, Comprehensive Environmental Response, Compensation and Liability Act as amended by the Superfund Amendments and Reauthorization Act of 1986; the Resource Conservation and Recovery Act; Solid Waste Disposal Act; Federal Water Pollution Control Act; Toxic Substances Control Act of 1976; OSHA; Emergency Planning and Community Right to Know Act of 1986; the Clean Air Act; the Nebraska Asbestos Control Act; the Nebraska Environmental Lead Hazard Control Act; the Nebraska Remedial Action Plan Monitoring Act; the Nebraska Petroleum Products and Hazardous Substance Storage and Handling Act; the Nebraska Environmental Protection Act; Oil Pollution Act of 1990; the Nebraska Petroleum Release Remedial Action Act; the Nebraska Safe Drinking Water Act; and any similar or implementing law, and all amendments, rules, regulations, guidance documents and publications promulgated thereunder; (ii) the terms "Asbestos Containing Material," "Discharge," "Disposal," "Release," "Remedial Action," or "Removal," "Response," "Solid Waste" and "Spill" have the meaning set forth in the definition of those terms in the Environmental Laws as of the effective date of this Agreement. However, if the definition of any of those terms is subsequently broadened or expanded, the broadened or expanded definition shall be used for purposes of this Agreement. If a term is defined more than once by the Environmental Laws, the broadest Page 5 of 8 • definition of such term shall be used for purposes of this Agreement; (iii) the terms "Hazardous Material" or "Hazardous Substances" shall mean any substance, material or waste (whether solid, liquid or otherwise), including, without limitation, asbestos, lead, petroleum products and derivatives thereof(including but not limited to crude oil or any fraction thereof) and urea formaldehyde, which is defined,prohibited, controlled or regulated by any Environmental Law. "Hazardous Material Activity" shall mean any and all activities, events or occurrence involving a Hazardous Material or Hazardous Substance, including without limitation, the use, generation, storage or disposal (as those terms are defined in any Environmental Laws) of any Hazardous Material or Hazardous Substance. 13.4 Prior to conveying possession of the Property, Lessees may remove in an orderly and safe manner and retain certain equipment and improvements installed at the Property by Lessees ("Leasehold Improvements"), to wit: heaters, heater coils, pumps, mixers, loading equipment, compressors, electrical equipment, piping, insulation, and storage tank #3. In addition to the removal and retention of such Leasehold Improvements, Lessees may remove and retain additional equipment or improvements (including tanks up to 20,000 gallons in size that can be removed intact without cutting) that Lessees will specify on a list that will be submitted to the City for review and approval, which approval will not unreasonably be withheld, thirty (30) days prior to commencement of removal of the first such item. Lessees shall not utilize scrap contractors in the removal and retention of the Leasehold Improvements or other items pursuant to this paragraph. Lessees agree that if they remove any item pursuant to this paragraph, such removal will not reasonably interfere with any demolition or site preparation at the Property by the City. Lessees assume any risks and liabilities that may be associated with the removal of the Leasehold Improvements and other items of equipment and improvements from the Property, including any environmental Claims covered by Paragraph 13.3 above. Lessees will hold the City harmless from any such liabilities. 13.5 This Agreement is contingent upon approval by the City Council of the City of Omaha. The Agreement shall be submitted to the City Council as soon as practicable upon execution. 13.6 Lessees and City covenant not to disclose prior to execution and approval by the city Council of the City of Omaha the price or terms of this transaction to any person or entity other than Lessees', City's and the City's legal, financial advisors, shareholders, officers and directors (in the case of the city, its council members and administration), who will likewise be bound by this duty of confidentiality, except when disclosure to a third party is required by law (in Page 6 of 8 which case the party to such disclosure will notifythe other partyof the subject intended disclosure as far in advance as practicable) or when both Lessees and City give specific written consent to a disclosure. Lessees and City agree that breach of this covenant will cause the other party irreparable harm and, therefore, either party shall have the right to have any unauthorized disclosure by the other party enjoined. Notwithstanding the foregoing, Lessees acknowledge and agree that certain disclosures to public bodies or agencies concerning this transaction will be required in order for City to obtain governmental approvals relating to this transaction and the project for which the Property is being acquired and to the extent City is excused from this duty of confidentiality. Effective this 30th day of July, 2001. Carbogen Corporation By: Name: Erm ifi Title: A/ Date: 271 Zeal Trifinery Petroleum Services By: / /)� Name: 5 tL ' Title: Pr7t1 Er/4� AJ FSeZ Il9L /�f7/1/ee Date: `7 2.7/O 1 City of Omaha :7 Ap roved as Fo . mes R. Thele, Real Property Manager Date: 7 /3 0/ o �•--- rederic . C ff W267860.4 Page 7 of 8 1 4 Authorization for Approval Of Agreement for Conveyance of Leasehold Interest,Improvements and Business Assistance Executed at Omaha,Nebraska of August /4, 2001 by CITY OF OMAHA By: KfZu...,i— Tit,;a4ayor of City of Omaha ACTIN ATTEST: r' By: Title: City Clerk of City of Omaha Page 8 of 8 • ( c Exhibit"A" 701 Abbott Drive Part of Government Lots 3 and 4, AND accretions thereto, all in Section 14, Township 15 North,Range 13 East of the 6th P.M.,Douglas County,Nebraska, the uplands described as follows: Commencing at the intersection of the east line of said ORIGINAL CITY OF OMAHA with the north right of way line of Seward Street, said north line also being the north line of Government Lot 2; Thence South 02°26'24" East(assumed bearings) for 1931.15 feet along said east of the ORIGINAL CITY OF OMAHA; Thence North 87°24'36" East for 133.70 feet parallel with and 725.00 feet north of the south line of Government Lot 3 to the TRUE POINT OF BEGINNING: Thence continuing North 87°24'36" East for 76.50 feet along said parallel line; Thence South 10°55'24" East for 58.30 feet; Thence North 87°37'36" East for 295.85 feet; Thence South 60°41'46" East for 336.00 feet along the accretion line called for in the deed recorded in Deed Book 1254 at page 451 to a point on the west High Bank of the Missouri River; Thence South 21°05'19" West for 429.87 feet along said west High Bank; Thence South 16°59'57" West for 394.14 feet along said west High Bank; Thence South 03°08'51" East for 954.09 feet along said west High Bank to the north line of THE SMELTER REPLAT, a subdivision, as surveyed, platted and recorded in Douglas County,Nebraska; Thence South 87°37'29" West for 380.27 feet along said north line; Thence North 44°04'28" West for 72.54 feet along the line as called for in quit claim deed recorded in Book 378,Page 382 in the office of the Douglas County Register of Deeds to the centerline of vacated Cass Street; Thence North 87°36'29" East for 157.77 feet along said centerline to the extended east line of Block 33; Thence North 02°13'06" West for 266.82 feet along the said east line of Block 33 to the east line of the Original City of Omaha; Thence North 20°57'23" West for 754.86 feet along said east line to the east right of way line of Abbott Drive; Thence North 06°41'22" East for 218.00 feet along said east right of way line; Thence along a curve to the left(having a radius of 2341.83 feet and a long chord bearing North 03°55'49" East for 225.46 feet) for an arc length of 225.55 feet along said east right of way line; Thence North 00°39'00" East for 84.67 feet along said east right of way line; Thence along a curve to the right (having a radius of 1095.92 feet and a long chord bearing North 02°37'46" East for 168.66 feet) for an arc length of 168.83 feet along said east right of way line; Thence North 11°10'55" East for 231.95 feet to the Point of Beginning. c-ate. CITY OF OMAHA LEGISLATIVE CHAMBER Omaha,Nebr RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: WHEREAS, the City of Omaha, as part of the Gallup University Riverfront Redevelopment Project, has plans for the construction of facilities which require the clearance and redevelopment of land occupied by the City Dock of the City of Omaha; and, " WHEREAS, the Dock Board of the City of Omaha has entered into a long-term lease with Trifinery Petroleum Services (Trifinery) and Carbogen Corporation (Carbogen) for the use of approximately 5 acres of the City Dock property. In order to effectuate the Gallup University project, the leasehold interest of Trifinery and Carbogen must be acquired; and, WHEREAS, on April 10, 2001 the City Council of the City of Omaha approved Ordinance of Necessity, No. 35543, that authorized the acquisition of all of the leasehold interests in the City Dock property; and, WHEREAS, the City of Omaha and co-lessees Trifinery and Carbogen desire to enter into an agreement for the purchase of the leasehold interest; and, WHEREAS, the City of Omaha, Trifinery and Carbogen have set forth their respective understandings and agreements with regard to this acquisition for the total consideration of Seven Million Two Hundred Eighty-eight Thousand Four Hundred Two Dollars ($7,288,402) in an Agreement for Conveyance of Leasehold Interest, Improvements and Business Assistance which is attached. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: THAT, the Mayor is hereby authorized to execute, and the City Clerk to attest, the attached Agreement for Conveyance of Leasehold Interest, Improvement and Business Assistance between the City of Omaha, Trifinery and Carbogen to provide for the acquisition of leasehold interest that will allow for the Gallup University Campus facilities. It is further resolved that the Finance Department is authorized to make payment pursuant to the Purchase Agreement from the Gallup University Riverfront Redevelopment Plan Project, Organization 1190, Fund 368, Agency 195, Year 2001 funding. P:\Law1\2140sap.doc APPROVED AS TO F e '. . r1 3 GI By SPECIA ' ' 4J��' ATTORNEY DATE Co ilmember Adopted AUG 1 ' l � ity Clerk Approved / ACTING Mayor 1 r i., 71) C., 0 (.1) i.., = SW ,—, cn CD o o y TS CD 'C3 � 4. s P., rr p qtD v, "� '--1 - O ~ cn a aL fD c r- ':Ic:i c)\-) b. (,) CD <--1- CD i a:. 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