ORD 33947 - BSDL Investments LLC redevelopment and TIF loan agmt i
i
o�p1AAliA,NFe� RECEIVED
Planning Department
�� 's `� Y �� Omaha/Douglas Civic Center
c? „ �, 1819 Farnam Street,Suite 1100
�i�fC'1 . IMII
"®1'.r 96 JUL 25 A !U• 51 Omaha,Nebraska 28444-5200
o P �y�! w � (402)444-5200
CA ti. (402)444-5150
° Telefax(402)444 6140
o4' r tD FEBRJ
T CITY CLERK p Jeffrey P.Johnson,AICP
CityofOmaha OMAHA, NEBRASKA
Director
Hal Daub,Mayor
Honorable President
and Members of the City Council,
The attached proposed ordinance recommends the approval of the BSDL Investment, LLC,
. Redevelopment Agreement for the construction of a 90,000 square foot warehouse and distribution
center to be located at Lindberg Drive and Hartman Avenue in Omaha,Nebraska. The project is to
provide expansion space for Pomerantz Diversified Services, Inc. The agreement proposes the
development of the 7.64 acre site through the construction of the new warehouse and distribution
facility. The agreement provides the utilization of$271,000 in tax increment financing to assist in
project development. The tax increment financing commitment will be repaid in approximately 12.5
years through the increase in taxes generated as a result of the completion of the project. The total
project cost is estimated to be approximately $3,000,000.
The Contractor has on file a current Annual Contract Compliance Report Form (CC-1). As is City
policy, the Human Relations Director will review the Contractor to insure compliance with the
Contract Compliance Ordinance.
Your favorable consideration of this ordinance will be appreciated.
Sincerely, Referred to the City Council for Consideration:
)1 Jeffr P o so , CP
Pla ng Director pp Mayor Office/Title A.
A oved as to Funding: Approved:
„.. .,,,, Fai\A-
Louis A. D'Ercole Don W. Elliott,P.E.
Acting Director, Finance Department Director, Public Works Department
Approve
Geo L. a 's, Jr. ')-/(.-- ) (I-
Acting Di ctor, Human Relation Department
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ORDINANCE NO. 339 r7
AN ORDINANCE approving a redevelopment and tax increment financing loan agreement with the
BSDL Investments, LLC, 2308 Sunset Road, Des Moines, Iowa 50321, and providing for
an effective date.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA;
Section 1. The Mayor is hereby authorized to execute, and the City Clerk to attest, the
attached Redevelopment Agreement with BSDL Investments,LLC; including any other documents
in connection with the Redevelopment Agreement necessary or appropriate to consummate the loan.
Section 2. Said Redevelopment Agreement contains obligations undertaken pursuant to the •
Nebraska Community Development Law and Sections 18-2147 through 18-2150; and, are not
otherwise obligations of the City of Omaha.
Section 3. This Ordinance shall be in full force and take effect fifteen (15) days from and
after the date of its passage.
INTRODUCED BY COUNCILMEMBER
APPROVED BY:
2
PASSED AUG 1 3 1996 vr%
irriN OR OF THE C OF OMA A
ATTEST:
I CLE OF THE Y OF OMAHA APPROVED AS TO FORM:
ASS CITY ATTORNEY
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REDEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into by and between the City of Omaha, a Nebraska
Municipal Corporation in Douglas County,Nebraska, and BSDL Investments, LLC.
RECITALS:
WHEREAS, on July 23, 1996, the City Council of the City of Omaha approved the BSDL
Investments,LLC Redevelopment Plan for Pomerantz Diversified Services, Inc. which provided for
the development of the site through the construction of a 90,000 square foot warehouse and
distribution center at Lindbergh Drive and Hartman Avenue, Omaha,Nebraska, and the use of the
excess ad valorem taxes generated by such development; and,
WHEREAS, this Agreement is a redevelopment agreement prepared pursuant to the
Nebraska Community Development Law in order to implement the above-referenced
Redevelopment Plan.
IN CONSIDERATION OF THESE MUTUAL COVENANTS THE PARTIES AGREE AS
FOLLOWS:
SECTION 1. DEFINITIONS
The following terms, whether plural or singular, shall have the following meanings for
purposes of this Agreement.
1.1 "City" shall mean the City of Omaha, Nebraska, a Municipal Corporation of the
metropolitan class or such successor entity lawfully established pursuant to the
applicable provision of the Nebraska Community Development Act.
1.2 "Developer" shall mean BSDL Investments, LLC.
1.3 "Director" shall mean the Director of the City of Omaha Planning Department.
1.4 "Redevelopment Project" shall mean development of the site through the
construction of a 90,000 square foot warehouse and distribution facility, 'as shown
on the Site Plan Exhibit "A".
1.5 "Redevelopment Site" shall mean the area legally described on Exhibit "B", attached
hereto.
1.6 "Redevelopment Note(TIF Funds/TIF Proceeds)" shall mean any obligation issued
by the City and secured by the excess ad valorem taxes generated within the
Redevelopment Site.
1.7 "Excess ad valorem taxes" shall mean the additional real estate property taxes
generated by this Redevelopment Project pursuant to Section 18-2147 of the
Nebraska Revised Statutes.
SECTION 2. OBLIGATIONS OF THE CITY
The City shall:
2.1 Execute and deliver to the Developer at closing the Redevelopment Note in
substantially the same form as the copy attached hereto as Exhibit "C".
2.2 Grant Redevelopment Loan proceeds to the Developer for construction of a 90,000
square foot warehouse and distribution facility up to the sum of Two Hundred
Seventy One Thousand and No/100 Dollars ($271,000.00).
2.3 Pay debt retirement principal and interest from the Excess Ad Valorem Taxes (TIF
tax proceeds). Interest on monies in the special fund shall accrue first to debt
retirement interest and then to principal.
2.4 Ensure that prior to expenditure or disbursement of Redevelopment Loan proceeds,
the following shall be obtained,to wit:
2.4.1 Developer shall provide the Director with evidence, acceptable to the
Director, that the private funds have been irrevocably committed to the
Redevelopment Project in the amount sufficient to complete the
redevelopment project.
2.4.2 Developer shall provide evidence of,and maintain,adequate performance and
labor materials bonds during the period of construction of the project. The
City shall be specified as a co-obligee.
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2.5 Establish a special fund under Section 18-2147 of the Nebraska Revised Statutes for
the purpose of collecting the excess ad valorem taxes generated by the
Redevelopment Project. Monies collected and held in the special fund shall be used
for no purpose other than to repay the Redevelopment Loan.
SECTION 3. OBLIGATIONS OF THE DEVELOPER
The Developer shall:
3.1 Complete the Redevelopment Project on or before September of 1997,creating a real
property taxable base by reason of such construction of at least$2,160,000.00.
3.2 Cause all real estate taxes and assessments levied on the Redevelopment Project to
be paid prior to the time such become delinquent.
3.3 Loan redevelopment funds to the City in the principal amount of$271,000.00 as set
forth in Section 2.1,which, when combined with other private funds available, will
be sufficient to construct the redevelopment project. Execution and delivery of the
Redevelopment Promissory Note shall be at closing which shall be as soon as
reasonably possible after execution of this Agreement but not more than 60 days
thereafter. At closing,the loan to be accomplished by this Section and the obligation
of the City to use the redevelopment loan proceeds for redevelopment purposes under
Section 2.2 may be accomplished by offset so that the Developer retains the loan
proceeds. If the City so requests,the developer shall, from time to time, furnish the
City with satisfactory evidence as to the use and application of the redevelopment
loan proceeds.
3.3.1 Such loan funds shall be disbursed as provided in Section 2.
3.3.2 Such loan shall bear a nine percent(9%) interest rate.
3.3.3 The principal shall be repaid by the City from the special fund established
pursuant to Section 2.5, as excess ad valorem taxes, pursuant to the
Redevelopment Plan and Section 18-2147 of the Nebraska Revised Statutes,
become available to the City for such use. To the extent of such excess ad
valorem taxes are unavailable to the City,the loan shall be forgiven and the
obligations of the Developer shall remain unaffected.
3.4 Shall provide the City with quarterly progress reports during the redevelopment and
allow the City reasonable access to any relevant financial records pertaining to the
Redevelopment Project.
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3.5 During the period that the Redevelopment Note (TIF Funds) is outstanding, (1) not
protest a real estate improvement valuation on the Redevelopment Site of$82,500.00
or less prior to and during construction; and$2,242,500.00 or less after substantial
completion or occupancy of the 90,000 square foot warehouse and distribution center
at Lindbergh Drive and Hartman Avenue by Pomerantz Diversified Services, Inc.;
(2) not convey the Redevelopment Site or structures thereon to any entity which
would be exempt from the payment of real estate taxes or cause the nonpayment of
such 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 of
the Redevelopment Site; (4)maintain insurance for ninety percent(90%) of the full
value of the structures on the Redevelopment Site; (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 Redevelopment Site to be paid prior to the time such
become delinquent. In lieu of the above,the Developer may surrender any remaining
amount outstanding of the Redevelopment Promissory Note 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 to be included 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 these covenants are
breached by such third parties if the Developer no longer owns the property.
3.6 Shall provide the City of Omaha Finance Department with an executed copy of the
Redevelopment Promissory Note prior to disbursement of any proceeds for
repayment of such Note pursuant to Section 2.5, so that such payment can be noted
on the Note and the Note returned to Developer.
SECTION 4. PROVISIONS OF THE CONTRACT
4.1 Equal Employment Opportunity Clause. Annexed hereto as Exhibit "D" and made
a part hereof by reference are the equal employment provisions of this contract,
wherein the "Developer" is referred to as "Contractor".
4.2 Non-discrimination. The Developer shall not, in the performance of this Contract,
discriminate or permit discrimination in violation of federal or state laws or local
ordinances because of race,color,sex,age,political or religious opinions, affiliations
or national origin.
4.3 Captions. Captions used in this Contract are for convenience and are not used in the
construction of this Contract.
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4.4 Applicable Law. Parties to this Contract shall conform 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 the
performance under this Contract.
4.5 Interest to the City. Pursuant to Section 8.05 of the Home Rule Charter, no elected
official or any officer or employee of the City of Omaha shall have a financial
interest, direct or indirect, in any City of Omaha contract. Any violation of this
section with the knowledge of the person or corporation contracting with the City of
Omaha shall render the contract voidable by the Mayor or Council.
4.6 Merger. This Contract shall not be merged into any other oral or written contract,
lease or deed of any type.
4.7 Modification. This Contract contains the entire agreement of the parties. No
representations were made or relied upon by either party 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 herein unless done in writing and signed by
an authorized officer of the respective parties.
4.8 Assignment. The Developer may not assign its rights under this contract without the
express prior written consent of the City; such consent not to be unreasonably
withheld. The Mayor may, without City Council approval, approve, in writing,the
assignment of all rights hereunder to a successor entity owned by, or under common
control with Developer.
4.9 Strict Compliance. All provisions of this Contract and each and every document that
shall be attached shall be strictly complied with as written, and no substitution or
change shall be made except upon written direction from authorized representatives
of the parties.
4.10 This Agreement shall be binding upon the Developer's successors and assigns, and
shall run with the land described in Exhibit"B",attached hereto,to the benefit of the
City of Omaha.
SECTION 5. AUTHORIZED REPRESENTATIVE
In further consideration of the mutual covenants herein contained,the parties hereto expressly
agree that for the purposes of notice, including legal service of process, during the term of this
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Contract and for the period of any applicable statute of limitations thereafter, the following named
individuals shall be the authorized representatives of the parties:
(1) City of Omaha:
Jeffrey P. Johnson, Director Legal Service
City Planning Department do City Clerk
Omaha/Douglas Civic Center Omaha/Douglas Civic Center
1819 Farnam Street 1819 Farnam Street
Omaha,NE 68183 Omaha,NE 68183
42) Developer:
BSDL Investments, LLC
2308 Sunset Road
Des Moines, Iowa 50321
Either party may designate additional representatives or substitute representatives by giving
written notice thereof to the designated representative of the other party.
Executed this/ 4 day of , 19 y .
ATTEST: CITY OF MAHA:
CITY CLE OF THE TY OF O _�, YOR OFT TY OF OMAHA
Executed this /today of �,, , 19 PC
DEVELOPER:
BSDL INVESTMENTS, LLC
By kgirte/
APPROVED AS TO FORM:
V.4uD Id/wee-1/ Cfo
vS CITY ATTORNEY
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STATE OF NEBRASKA )
)SS.
COUNTY OF DOUGLAS )
The foregoing Redevelopment Agreement was acknowledged before me this J7Aday of
July, 1996 by David Lettween, CEO or Bruce Sherman, President of BSDL Investments,LLC on
behalf of said corporation.
MELA JOYCE WICKS l
U A PA February 3,1998
Notary Public, State
My commission expires on 07-Z
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EXHIBIT"C"
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
" '33 ACT")AND MAY NOT BE TRANSFERRED,ASSIGNED, SOLD OR HYPOTHECATED
UNLESS A REGISTRATION STATEMENT UNDER THE '33 ACT SHALL BE IN EFFECT
WITH RESPECT THERETO AND THERE SHALL HAVE BEEN COMPLIANCE WITH THE
'33 ACT AND ALL APPLICABLE RULES AND REGULATIONS THEREUNDER, OR THERE
SHALL HAVE BEEN DELIVERED TO THE CITY OF OMAHA PRIOR TO TRANSFER,
ASSIGNMENT,SALE OR HYPOTHECATION AN OPINION OF COUNSEL,SATISFACTORY
TO THE CITY OF OMAHA TO THE EFFECT THAT REGISTRATION UNDER THE '33 ACT
IS NOT REQUIRED.
REDEVELOPMENT PROMISSORY NOTE
$271,000.00 , 19
FOR VALUE RECEIVED,the Undersigned,Borrower,promises to pay BSDL Investment
LLC, 2308 Sunset Road, Des Moines,Iowa 50321,Holder, and/or its assigns,the principal sum of
Two Hundred Seventy One Thousand and No/100 Dollars ($271,000.00), together with interest
thereon at the rate of nine per cent(9%)per annum from the date of the execution of this Note until
paid in full. The principal balance and interest thereon shall be due and payable to the holder of said
Redevelopment Promissory Note as and at such time as any excess ad valorem taxes generated by
the Redevelopment Project as set forth in that certain Redevelopment Agreement dated the
/3 7 day of dert9 - , 19 9A by and between the City of Omaha,
Borrower, and the Holder, (the "Redevelopment Agreement") are collected by the City of Omaha
and available for the retirement of this debt.
In the event of default under said Redevelopment PromissoryNote, all sums secured bythis
P
Note or any other agreement securing this Note shall bear interest at a rate equal to five percent(5%)
above the regional prime or base rate as used by the BSDL Investments, LLC, Omaha, Nebraska,
from time to time,however, in the event said interest rate exceeds the maximum rate allowable by
law then such rate of interest shall equal the highest legal rate available.
Borrower may prepay the principal amount outstanding in whole or in part,without the prior
consent of the Holder.
In the event the monies collected and held in that special fund established under Section
18-2147 of the Nebraska Revised Statutes and pursuant to the Redevelopment Agreement are
insufficient to pay in full all amounts due and owing at a date fifteen(15) years from the effective
date of the Redevelopment Plan, and all excess ad valorem taxes generated by the Redevelopment
Project,as set forth in the Redevelopment Agreement,have been collected by the City of Omaha and
have been paid, immediately upon being available, towards the retirement of the amounts due
hereunder, then, at said date fifteen (15) years from the effective date of the Redevelopment Plan,
the Holder shall waiver any unpaid portion of the principal and interest due upon written request of
the City of Omaha.
In the event this Note is referred to an attorney for collection the Holder shall be entitled to
reasonable attorney fees allowable by law and all Court costs and other expenses incurred in
connection with such collection.
The Borrower shall be in default in the event the Borrower shall fail to pay, when due, any
amount required hereunder.
Unless prohibited by law, the Holder may, at its option,declare the entire unpaid balance of
principal and interest immediately due and payable without notice or demand at any time after
default, as such term is defined in this paragraph.
Holder may at any time before or after default, exercise his right to set off all or any portion
of the indebtedness evidenced hereby against any liability or indebtedness of the Holder to the
Borrower without prior notice to the Borrower.
Demand, presentment, protest and notice of nonpayment under this Redevelopment
Promissory Note are hereby waived.
No delay or omission on the part of the Holder in exercising any remedy, right or option
under this Redevelopment Promissory Note shall operate as a waiver of such remedy,right or option.
In any event, a waiver on any one occasion shall not be construed as a waiver or bar to any such
remedy, right or option on a future occasion.
Any notice provided for in this Redevelopment Promissory Note to the Borrower or the
Holder shall be in writing and shall be given by regular mail to the Holder or Borrower, or at such
other address as either party may designate by notice in writing.
This Redevelopment Promissory Note shall be governed by and construed in accordance with
the Laws of the State of Nebraska. All payments hereunder shall be payable in lawful money of the
United States of America and shall be legal tender for public and private debts at the time of
payment.
CITY OF 0 ,A Municipal Corporation
By:
M or of the City of Omaha
ATTEST: APPROVED AS TO FORM:
Ci Clerk of the Cityof Omaha Ci ttorn/e
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EXHIBIT "D"
EQUAL EMPLOYMENT OPPORTUNITY CLAUSE
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,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.
(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
•
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4 II
City will enter into such litigation as 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 Contract Compliance Officer. Compliance reports filed at 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.
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i
Brown, Winick, Graves, Gross,
Baskerville and Schoenebaum, P.L.C.
ATTORNEYS AT LAW
666 GRAND AVENUE,SUITE 2000
DES MOINES.IOWA 5 03 09-25 1 0 •
TELEPHONE: (515)242-2400
FACSIMILE: (515)283-0231 Christopher R. Sackett
URL: www.ialawyers.com Writer's Direct Dial No.
(515)242-2470
Offices in:
Pella.Iowa Writer's E-Mail Address
Washington.D.C. sackett@ialawyers.com
June 25, 2003
VIA FEDERAL EXPRESS
City of Omaha, A Municipal Corporation
c/o Kenneth E. Johnson Sr.
Economic Development Manager
Omaha/Douglas Civic Center
1819 Farnam Street, Suite 1100
Omaha, NE 68183-0110
Re: Assignment of Tax Increment Financing Documents, Including Promissory Note
Payable to Pomerantz Diversified Services, Inc.
Dear Mr. Johnson:
We have acted as special counsel to Pomerantz Diversified Services, Inc. ("PDS") in connection with
the assignment by PDS to Engman Properties, L.L.C. (the "Assignee") of that certain
"Redevelopment Note" dated December 6, 1996, in the amount of$271,000 (the "Note"), issued by
the City of Omaha, a Municipal Corporation ("Maker"). This opinion is being delivered pursuant to
the provision of the Note which requires an opinion of counsel be delivered prior to any transfer or
assignment of said Note.
We examined the following documents, the Certified Redevelopment Plan, the Redevelopment
Promissory Note, and the Redevelopment Agreement (hereinafter the "Documents") and reviewed
such questions of law that we considered necessary and appropriate for the purposes of this opinion.
In rendering the opinion set forth below we have assumed the authenticity of all documents
submitted to us as originals, the genuiness of all signatures and the conformity to authentic originals
of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes
relevant hereto of all natural persons, and, with respect to all parties to agreements or instruments
relevant thereto, that such parties have the requisite power and authority to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have been duly
authorized by all requisite action, executed and delivered by such parties and that the agreements or
instruments are valid, binding and enforceable obligation of the parties.
We have also assumed, but have made no independent investigation to verify that the initial sale of
the Note to PDS does not require compliance with the registration requirements of Section 5 of the
Securities Act of 1933, as amended (the "Act").
Based upon the foregoing, we are of the opinion that the assignment of the Note from PDS to the
Assignee is exempt from the registration under the Act.
• •
June 25, 2003
Page 2
The opinion set forth above is subject to the following qualifications and limitations:
1. In rendering the opinions expressed above, we advise you that we have not conducted, nor do
we undertake to conduct, any independent review or investigation of, nor are we expressing any
opinion concerning, the accuracy of the representations, warranties and statements made by PDS, the
Assignee, officers, members, employees and agents of the Assignee or PDS; or anyone else in
connection with the Documents.
2. We are members of the Bar of the State of Iowa only and do not hold ourselves out as experts
on the law of any other state. For purposes of these opinions, we have assumed that the Documents
would be governed by and construed under the laws of the State of Iowa. Consequently, we have
made no independent review of the laws of any jurisdiction other than the State of Iowa and we
express no opinion with respect to the laws of any jurisdiction other than the State of Iowa and the
United States of America.
3. All of our opinions set forth above are based upon existing law as of the date of this letter, all
of which is subject to change prospectively and retroactively. All of our opinions set forth above are
based on the facts and the Documents as they exist on the date of this letter, and we assume no
obligation to revise or supplement such opinions as to future changes of law or fact regardless of
whether such change is by legislative actions,judicial decision or otherwise.
4. This opinion letter is limited to the matters stated herein and no opinion is to be implied or
inferred beyond the matters expressly stated herein.
This opinion is delivered to you upon the instructions of our client, is intended solely for your use,
and may be relied upon by you. This opinion is being furnished to you solely for your benefit and
only with respect to the loan transaction recited herein. Accordingly, it may not be relied upon by,
quoted in any manner to or delivered to, any other person or entity whatsoever without, in each
instance, our prior written consent.
Very truly yours,
BROWN, WINICK, GRAVES, GROSS,
BASKERVILLE AND SCHOENEBAUM, P.L.C.
By: (//e (ELJG� 7 2 M{#
Christopher R. Sackett, Member
STATE OF IOWA )
) ss:
COUNTY OF POLK )
On this day of , 2003, before me, the undersigned, a
Notary Public in and for the State of Iowa, personally appeared
, to me personally known, who being by me duly sworn,
did say that he is the of said corporation; that no seal has been
procured by said corporation; that said instrument was signed on behalf of the said
corporation by authority of its Board of Directors; and that the said
as such officer, acknowledged the execution of said instrument to be the voluntary act
and deed of said corporation, by it and by him voluntarily executed.
Notary Public In and For the State of Iowa
3
•
IN WITNESS WHEREOF, the parties have duly executed this ASSIGNMENT
OF TAX INCREMENT FINANCING DOUCMENTS; APPOINTMENT OF
ATTORNEY-IN-FACT as of the 1st day of July, 2003.
ASSIGNOR: ASSIGNEE:
POMERANTZ DIVERSIFIED ENGMAN PROPERTIES, L.L.C.
SERVICES, INC
By: By:
Its: Its:
•
ACKNOWLEDGED AND APPROVED BY THE CITY OF OMAHA
By:
Its: AM VCR APPROVED AS TO FORM:
/WIZ=a c..)2 6/Y/p)
ASSISTANT CITY ATTORNEY
STATE OF IOWA )
) ss:
COUNTY OF POLK ) City C t c;ri:
On this day of , 2003, before me, the undersigned, a
Notary Public in and for the State of Iowa, personally appeared
, to me personally known, who being by me duly sworn,
did say that he is the of said corporation; that no seal has been
procured by said corporation; that said instrument was signed on behalf of the said
corporation by authority of its Board of Directors; and that the said
as such officer, acknowledged the execution of said instrument to be the voluntary act
and deed of said corporation,by it and by him voluntarily executed.
Notary Public In and For the State of Iowa
2
ASSIGNMENT OF TAX INCREMENT FINANCING DOCUMENTS;
APPOINTMENT OF ATTORNEY-IN-FACT
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, POMERANTZ DIVERSIFIED SERVICES, INC., an Iowa
corporation ("PDS"), does hereby quit claim, sell, assign and transfer unto ENGMAN
PROPERTIES, L.L.C., an Iowa limited liability company ("Assignee"), all of PDS's
right, title, and interest in and to any and all documents and instruments (the "Assigned
Documents") relating to or affecting certain tax increment financing which PDS has
received or will be receiving from the City of Omaha in connection with the construction
of a warehouse and distribution center, all as more particularly described in that certain
document (the "Redevelopment Plan") entitled, "BSDL Investments, L.L.C. [n/k/a
BSDL, L.C.] Redevelopment Plan for Pomerantz Diversified Services, Inc."
To have and to hold such Assigned Documents unto Assignee, its successors and
assigns, from and after the date hereof, subject to the terms, covenants, conditions and
provisions contained in such Assigned Documents.
Said Assigned Documents shall include specifically, but without limitation, the
following:
1. The Redevelopment Plan as assigned to PDS on or about September 20,
1996;
2. That certain Redevelopment Agreement by and between the City of
Omaha and BSDL Investments, L.L.C. [n/k/a BSDL, L.C.] as assigned to PDS on or
about September 20, 1996; and
3. That certain Redevelopment Promissory Note from the City of Omaha for
the benefit of BSDL Investments, L.L.C. [n/k/a BSDL, L.C.] as assigned to PDS on or
about September 20, 1996 (the "Note"),
together with any and all other ancillary and/or related documents and rights.
Assignee hereby agrees to assume and perform all obligations of BSDL
Investments, L.L.C. [n/k/a BSDL, L.C.] and/or PDS under said Assigned Documents.
PDS hereby nominates, constitutes and appoints Assignee as the true and lawful
attorney-in-fact of PDS in its name, place and stead to receive, receipt and sue for all
monies due upon the Note, to endorse the name of PDS on all commercial paper given in
payment or in part payment of the Note, and to settle, adjust or compromise any claim
thereunder as fully as PDS could do itself, and that it will deliver to Assignee all sums
that may be collected thereon.
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