ORD 38039 - ALDI Inc TIF AgreementCity of Omaha
Mike Fahey, Mayor
Honorable President
and Members of the City Council,
j' I ' ' 1' -.
February 26, 2008
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Planning Department
Omaha/Douglas Civic Ccnrcr
1819 Farnam Strcec, Suite 1100
Omaha, Nebraska 68183
(402) 444-5150
Telefax (402) 444-6140
. Steven N.Jensen, AICP, LA
Director
The attached Ordinance transmits a Tax Increment Finance (TIF) Redevelopment Agreement between the
City of Omaha and Aldi Inc. (Kansas), a Kansas for-profit Corporation implementing the Aldi Inc., Tax
Increment Financing (TIF) Redevelopment Project Plan for the Aldi Inc. Sutherlands Plaza
Redevelopment Project to be located in the Sutherlands Plaza Redevelopment Plan area at Dahlman
Avenue and "L" Street. The Agreement provides for the construction of a discount grocery store located
to the north of the initial Sutherland's Plaza Redevelopment project site. Community values
enhancements on the site will include landscaping and pedestrian walkways connecting to the existing
Sutherlands Plaza.
The Agreement contemplates that the City will provide $691,000.00 in Tax Increment Financing, as
detailed in the Plan, that will be used for site preparation, public improvements and community values
enhancements. The total project cost is estimated to be approximately $3,043,919.00. This project will
compliment the most recent redevelopments in the South Omaha area including Sutherlands Plaza, the
Stockyards Business Park and the Livestock Exchange Building.
Your favorable consideration of this Ordinance will be appreciated.
Respectfully submitted,
t. (
Date
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Date C,,., Carol A. Ebdon 1f11V
r ~-Finance Director v ~
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Human Rights and Relations Director ( /( i. _,
PLNLSF I 060-cover letter
Referred to City Council for Consideration:
Mayor's Office
.... -·
obert G. Stubbe,
Public Works Director
Date
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Date
ORDINANCE NO. , Jf(),)Cj_
AN ORDINANCE approving a Tax Increment Financing (TIF) Redevelopment Loan
Agreement between the City of Omaha and Aldi Inc. (Kansas), a Kansas for-profit Corporation,
for the rehabilitation of a dilapidated industrial site adjacent to the Sutherlands Plaza
Redevelopment Project area, located near Dahlman Avenue and "L" Street, Omaha Nebraska,
through the development of a 101,365 square foot site with a 17,093 sq. ft. Aldi Inc. discount
grocery store; the Redevelopment Loan Agreement authorizes $691,000.00 in TIF to be used for
site preparation, public improvements and community values enhancements; and providing for
an effective date.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
Section I. The Mayor is hereby authorized to execute, and the City Clerk to attest, the
attached Tax Increment Financing (TIF) Redevelopment Loan Agreement between the City of
Omaha and Aldi Inc. (Kansas), a Kansas for-profit Corporation, and any other documents in
connection with the Redevelopment Agreement necessary or appropriate to consummate the
loan. The Agreement implements the construction of new facilities to accommodate the
expansion of goods and services at the Sutherlands Plaza Redevelopment Project area by the
development ofthelOl,365 square foot site with a 17,093 sq. ft Aldi Inc. discount grocery store
on Lot 3, Sutherlands Plaza Replat at Dahlman Avenue and "L" Street Omaha, Douglas County,
Nebraska, 68107. The project will incorporate other project amenities, public improvements and
related facilities as may be required.
o...f./JZllJ-4AJC€ ,()0.
Page 2
Section 2. Said Redevelopment Agreement contains obligations undertaken pursuant to
the Nebraska Community Development Law and Sections 18-2147 through 18-2150; and, is not
otherwise an obligation of the City of Omaha.
Section 3. That this Ordinance, not being legislative in character, shall take effect upon
the date of its passage in accord with Section 2.12 of the Omaha Municipal Code.
INTRODUCED BY COUNCILMEMBER
APPROVED BY:
~ dJ~ 3/lslog
MAYOR OF THE CrT~ OMAHA DATE
PASSED _M_A_R_l_l _2008_,_~{,_-~0 __ _
APPROVED AS TO FORM:
CiJff,: ~ ·~o?
CITY ATTORNEY DAE
PLNLSF1060-TIF ord
REDEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into by and between the City of Omaha, a Nebraska
Municipal Corporation in Douglas County, Nebraska, and Aldi Inc. (Kansas), (Kansas) a Kansas
for-profit Corporation.
RECITALS:
WHEREAS, on November 14, 2006, the City Council of the City of Omaha approved the
Aldi Inc., Tax Increment Financing (TIF) Redevelopment Project Plan for the Aldi Inc.
Suther lands Plaza Redevelopment Project; and,
WHEREAS, the Aldi Inc., Tax Increment Financing (TIF) Redevelopment Project Plan
provided for the development of a 101,365 sq. ft. site north of and adjacent to the Sutherlands
Plaza Redevelopment Project at Dahlman Avenue and "L" Street, in Omaha Nebraska which
includes a 17,093 sq. ft. Aldi Inc. discount grocery store utilizing TIF in the amount if
$691,000.00 funded by the use of the excess ad valorem taxes generated by such development;
and,
WHEREAS, the Aldi Inc.-Sutherlands Plaza Redevelopment Plan contemplates
constructing a grocery store with related enhancements applying community value standards and
utilizing Tax Increment Financing for site acquisition, demolition, site preparation and public
improvements; and,
WHEREAS, this Agreement between the parties is 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.
I. I "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 Aldi Inc. (Kansas), a Kansas for-profit Corporation, with
offices at 10505 S. K7 Highway, Olathe, KS 66061.
1.3 "Director" shall mean the Director of the City of Omaha Planning Department.
1.4 "Redevelopment Project" shall mean the rehabilitation of the 2.37-acre Aldi Inc.
Redevelopment Project site to construct the 17,093 sq. ft. Aldi, Inc discount
grocery store adjacent to the Sutherlands Plaza Redevelopment Project at
Dahlman Avenue and "L" Street, Omaha NE. (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 m
substantially the same form as the copy attached hereto as Exhibit "C".
2.2 Grant Redevelopment Loan proceeds to the Developer up to the sum of
$691,000.00 for eligible acquisition, demolition, site preparation, public
improvements and rehabilitation costs.
2.3 Pay debt retirement principal and zero interest from the Excess Ad Valorem
Taxes (TIF tax proceeds). Interest on monies in the special fund shall accrue to
principal debt retirement.
2.4 Ensure that prior to expenditure or disbursement of Redevelopment Loan
proceeds, the following shall be obtained, to wit:
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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.
2.5 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 June 1, 2011, creating an
increase in real property taxable base by reason of such construction of at least
$2,863,262.00.
3.2 Cause all real estate taxes and assessments levied on the Redevelopment Project
to be paid prior to the time such become delinquent, except as provided in Section
3.5, below.
3.3 Loan redevelopment funds to the City in the principal amount of $691,000.00 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 zero percent interest rate 0% per annum.
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.
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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.
3.5 During the period that the Redevelopment Note (TIF Funds) is outstanding, (I)
not protest a real estate improvement valuation on the Redevelopment Site of
$2,685,862.00 plus the base valuation of $177,400.00 for a total valuation of
$2,863,262.00 after substantial completion or occupancy of the new Aldi Inc.
discount grocery store (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, assigmnent, 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.
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.
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SECTION 4. PROVISIONS OF THE CONTRACT
4.1 Equal Employment Opportunity Clause. Annexed hereto as "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.
4.4 Applicable Law. Parties to this Contract shall conform to 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 avoidable 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.
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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 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:
Steven N. Jensen, AICP, LA
Director City Planning Department
Omaha/Douglas Civic Center
1819 Farnam Street
Omaha, NE 68183
(2) Developer
Aldi me.
10505 S. K7 Highway
Olathe, KS 66061
Legal Service
c/o City Clerk
Omaha/Douglas Civic Center
1819 Farnam Street
Omaha, NE 68183
Either party may designate additional representatives or substitute representatives by
giving written notice thereof to the designated representative of the other party .
. 12~ M~i.1 Executed this ..&L.. day of ¥8e1'11ar)' 2008.
APPROVED AS TO FORM:
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~t--CITY ATTORNEY \
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DEVELOPER:
Aldi Inc. (Kansas), a Kansas for-profit
Corporation
10505 S. K7 Highway, Olathe, KS 66061
nt
Executed this;;/(,, -day of February 2008
By: G. Mark Bersted, Vice-President
COUNTY OF <~l\S0r, )§
G. Mark Bersted, Vice-President, Aldi Inc. (Kansas), a Kansas for-profit Corporation 10505 S.
K7 Highway, Olathe, KS 66061 for Aldi Inc., and on behalf of Aldi Inc. acknowledged the
foregoing Redevelopment Agreement before me this c~lf+hday of February 2008. , n n t~ (\ ~ \._'._) .1r o W~<....\J.,~ r ,
tate of Kansas
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REVISIONS1
EXHIBIT "C"
REDEVELOPMENT NOTE
THIS NOTE 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 HA VE BEEN
COMPLIANCE WITH THE '33 ACT AND ALL APPLICABLE RULES AND
REGULA TIO NS THEREUNDER, OR THERE SHALL HA VE 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
$691,000.00
(lb.cch
Februaty 0, 2008
FOR VALUE RECEIVED, the City of Omaha, Nebraska ("Borrower"), promises to pay, Aldi
Inc. (Kansas), a Kansas for profit Corporation, 10505 S. K7 Highway, Olathe, KS 66061 (the
"Payee"; the Payee, together with any subsequent holder(s) hereof, hereinafter collectively
referred to as the "Holder") the principal sum of Six Hundred Ninety One Thousand Dollars
($691,000.00), together with interest thereon at the rate of zero percent (0%) per annum from the
date of the execution of this Note until paid in full. The principal balance thereon shall be due
and payable to the Holder of this Redevelopment Promissory Note as and at such time as any
excess ad valorem taxes generated by the Redeve~1~ Project as set forth in that certain
Redevelopment Agreement dated the~ day of 11.c. , 2008 by and between the city of
Omaha, Borrower, and Aldi Inc. and I or the Holder (the "Redevelopment Agreement"), are
collected by the City of Omaha and available for the retirement of the debt evidenced by this
Note.
In the event of default under this Note, all sums secured by this 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 Aldi Inc., 10505 S. K7 Highway Olathe, KS 66061, its
successors and/or assigns, ("Lender"), 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 al a date fifteen (15) years from the
effective date of the Aldi Inc. 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 Borrower and have been paid, immediately upon being available, towards the retirement
date of Aldi, Inc. Tax Increment Financing Redevelopment Project Plan, the Holder shall waive
any unpaid portion of the principal and no interest on loan due upon written request of Borrower.
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.
Unless prohibited by law, the Holder may, at its option, declare the entire unpaid balance
of principal and no interest immediately due and payable without notice or demand at any time
after default hereunder by Borrower.
Demand, presentment, protest and notice of nonpayment under this Note are hereby
waived.
No delay or omission on the part of the Holder in exercising any remedy, right or option
under this 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 Note to the Borrower or the Holder shail be in writing and
shall be given by hand delivery, commercial courier service which provides a written delivery
receipt, or certified mail to Borrower in care of the Omaha City Finance Director at his official
office address and to the Holder at its address set forth above or at such other address as Holder
may designate by notice in writing.
This 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 OMAHA, NEBRASKA, a municipal corporation
By: ~ d,
Mayor of the C~aha
ATTEST: APPROVED AS TO FORM:
~~
PLNLSFI 060-note
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 uses
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
(5) The Program Provider shall take such actions with respect to any sub-contractor as the City
may direct as a means of enforcing the provisions of Paragraphs (I) through (7) herein,
including penalties and sanctions for noncompliance; however, in the event the Program
Provider 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 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 Program Provider or the City may request the United States to enter
into such litigation to protect the interests of the United States.
(6) The Program Provider shall file and shall cause his sub-contractor, ifany, to file compliance
reports with the Program Provider 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 Program Provider and his sub-contractor.
(7) The Program Provider shall include the provisions of Paragraphs (!) through (7) of this
Section, "Equal Employment Opportunity Clause", and Section I 0-193 in every subcontract
or purchase order so that such provisions will be binding upon each sub-contractor or
vendor.
-2 -
PUBLICATIONS PUBLICATION OF HEARING Date L-/9-(}°J PUBLICATION OF ORDINANCE Date ?rr9-08 .......--;). g-C,. ,/ ORDINANCE NO. '370.3 9_ AN ORDINANCE approving a Tax Increment Financing (TIF) Redevelopment Loan Agreement between the City of Omaha and Aldi Inc. (Kansas) a Kansas for-profit Corporation, for the rehabilitation of a dilapidated industrial site adjacent to the Sutherlands Plaza Redevelopment Project area, located near Dahlman Avenue and "L" Street, Omaha Nebraska, through the development of a 101,365 square foot site with a 17,093 sq. ft. Aldi Inc. discount grocery store; the Redevelopment Loan Agreement authorizes $691,000.00 in TIF to be used for site preparation, public improvements and community values enhancements; and providing for an effective date. PLNLSF\060 ~lo~-PRESENTED TO COUNCIL 1st Reading ,g/.Y-09' 77 FEB 2 6 2008 -dk///£ Hearing MAR -4 2008 -duu d:i ,?h/IDt T" Final Reading MAR 1 1 2008 Passed BUSTER BROWN City Clerk ~/Al'.s-cs