REDEVELOPMENT CONTRACT
By
THE CITY OF XXXXXXXX, NEBRASKA
and
NEDAK ETHANOL, LLC
June , 2007
TABLE OF CONTENTS
Page
PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 Terms Defined in this Redevelopment Contract............1
Section 1.02 Construction and Interpretation.........................3
ARTICLE II
REPRESENTATIONS
Section 2.01 Representations by City.................................4
Section 2.02 Representations of Redeveloper..........................5
ARTICLE III
OBLIGATIONS OF THE CITY
Section 3.01 Division of Taxes.......................................6
Section 3.02 Issuance of TIF Indebtedness............................7
Section 3.03 Pledge of TIF Revenues..................................8
Section 3.04 Grant of Proceeds of TIF Bonds..........................8
Section 3.05 Creation of Fund........................................8
ARTICLE IV
OBLIGATIONS OF REDEVELOPER
Section 4.01 Construction of Project; Insurance......................8
Section 4.02 Cost Certification......................................9
Section 4.03 Redeveloper to Operate Project..........................9
Section 4.04 City Costs.............................................10
Section 4.05 No Discrimination......................................10
Section 4.06 Pay Real Estate Taxes..................................10
Section 4.07 Payment in Lieu of Taxes...............................11
Section 4.08 No Assignment or Conveyance............................11
ARTICLE V
FINANCING REDEVELOPMENT PROJECT; ENCUMBRANCES
Section 5.01 Financing..............................................12
Section 5.02 Encumbrances...........................................12
ARTICLE VI
DEFAULT, REMEDIES; INDEMNIFICATION
Section 6.01 General Remedies of City and Redeveloper...............12
Section 6.02 Additional Remedies of City............................13
Section 6.03 Remedies in the Event of Other Redeveloper Defaults....14
Section 6.04 Forced Delay Beyond Party's Control....................14
Section 6.05 Limitation of Liability; Indemnification...............15
ARTICLE VII
MISCELLANEOUS
Section 7.01 Notice Recording.......................................16
Section 7.02 Governing Law..........................................16
Section 7.03 Binding Effect; Amendment..............................16
Section 7.04 Electric Revenue Matters...............................16
Section 7.05 Release of Electric Revenue Claim(s)...................16
Execution by the Issuer.......................................................18
Execution by the Redeveloper..................................................18
Exhibit A - Description of Redevelopment Area
Exhibit B - Description of Project
Exhibit C - TIF Indebtedness
Exhibit D - Project Costs
REDEVELOPMENT CONTRACT
This Redevelopment Contract is made and entered into as of the ___ day of
June, 2007, by and between the City of Xxxxxxxx, Nebraska, acting as the
Community Development Agency of the City of Xxxxxxxx, Nebraska ("City"), and
NEDAK Ethanol, LLC, a Nebraska limited liability company ("Redeveloper").
W I T N E S S E T H:
WHEREAS, the City of Xxxxxxxx, Nebraska (the "City"), in furtherance of the
purposes and pursuant to the provisions of Section 2 of Article VIII of the
Nebraska Constitution and Sections 18-2101 to 18-2154, Reissue Revised Statutes
of Nebraska, 1997, as amended (collectively the "Act"), and pursuant to
Resolution No. 06-01 of the City dated January 16, 2006, has designated an area
in the City as blighted and substandard; and
WHEREAS, pursuant to Section 18-2119 of the Act, the City has solicited
proposals for redevelopment of the blighted and substandard area and Redeveloper
submitted a redevelopment contract proposal;
WHEREAS, City and Redeveloper desire to enter into this Redevelopment
Contract for acquisition and redevelopment of a parcel in the blighted and
substandard area;
NOW, THEREFORE, in consideration of the Redevelopment Area and the mutual
covenants and agreements herein set forth, City and Redeveloper do hereby
covenant, agree and bind themselves as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 Terms Defined in this Redevelopment Contract.
Unless the context otherwise requires, the following terms shall have the
following meanings for all purposes of this Redevelopment Contract, such
definitions to be equally applicable to both the singular and plural forms and
masculine, feminine and neuter gender of any of the terms defined:
"Act" means Section 2 of Article VIII of the Nebraska Constitution,
Sections 18-2101 through 18-2154, Reissue Revised Statutes of Nebraska, 1997, as
amended, and acts amendatory thereof and supplemental thereto.
"Agency" means the Community Development Agency of the City of Xxxxxxxx,
Nebraska.
"Certificate of Completion" means a certificate, executed by a Manager or
other duly authorized officer of Redeveloper, representing and warranting that
the Project is substantially complete.
"City" means the City of Xxxxxxxx, Nebraska.
"Governing Body" means the Mayor and City Council of the City.
"Holder" means the holders of TIF Indebtedness issued by the City from time
to time outstanding. "Liquidated Damages Amount" means the amounts to be repaid
to City by Redeveloper pursuant to Section 6.02 of this Redevelopment Contract.
"Project" means the improvements to the Redevelopment Area, as further
described in Exhibit B attached hereto and incorporated herein by reference and,
as used herein, shall include the Redevelopment Area real estate.
"Project Cost Certification" means a statement prepared and signed by an
independent certified public accountant verifying the payment of Project Costs
identified on Exhibit D.
"Project Costs" means only costs or expenses incurred by Redeveloper to
acquire, construct and equip the Project pursuant to the Act as identified on
Exhibit D.
"Redeveloper" means NEDAK Ethanol, LLC, a Nebraska limited liability
company.
"Redevelopment Area" means that certain real property situated in the City
of Xxxxxxxx, Xxxx County, Nebraska, which has been declared blighted and
substandard by the City pursuant to the Act, and which is more particularly
described on Exhibit A attached hereto and incorporated herein by this
reference.
"Redevelopment Contract" means this redevelopment contract between the City
and Redeveloper with respect to the Project.
-2-
"Redevelopment Plan" means the Redevelopment Plan for the Redevelopment
Area as set forth in the Redevelopment Contract, prepared by the Agency and
approved by the City pursuant to the Act, as amended from time to time.
"Resolution" means the Resolution of the City, as supplemented from time to
time, approving this Redevelopment Contract.
"TIF Indebtedness" means any bonds, notes, loans, and advances of money or
other indebtedness, including interest and premiums, if any, thereon, incurred
by the City pursuant to Article III hereof and secured in whole or in part by
TIF Revenues.
"TIF Revenues" means incremental ad valorem taxes generated by the Project
which are allocated to and paid to the City pursuant to the Act.
Section 1.02 Construction and Interpretation.
The provisions of this Redevelopment Contract shall be construed and
interpreted in accordance with the following provisions:
(a) Wherever in this Redevelopment Contract it is provided that any
person may do or perform any act or thing the word "may" shall be deemed
permissive and not mandatory and it shall be construed that such person
shall have the right, but shall not be obligated, to do and perform any
such act or thing.
(b) The phrase "at any time" shall be construed as meaning "at any
time or from time to time."
(c) The word "including" shall be construed as meaning "Including, but
not limited to."
(d) The words "will" and "shall" shall each be construed as mandatory.
(e) The words "herein," "hereof," "hereunder," "hereinafter" and words
of similar import shall refer to the Redevelopment Contract as a whole
rather than to any particular paragraph, section or subsection, unless the
context specifically refers thereto.
-3-
(f) Forms of words in the singular, plural, masculine, feminine or
neuter shall be construed to include the other forms as the context may
require.
(g) The captions to the sections of this Redevelopment Contract are
for convenience only and shall not be deemed part of the text of the
respective sections and shall not vary by implication or otherwise any of
the provisions hereof.
ARTICLE II
REPRESENTATIONS
Section 2.01 Representations by City.
The City makes the following representations and findings:
(a) The Agency is a duly organized and validly existing community
development agency under the Act.
(b) The Redevelopment Plan has been duly approved and adopted by the
City pursuant to Section 18-2109 through 18-2117 of the Act.
(c) The City has requested proposals for redevelopment of the
Redevelopment Area pursuant to section 18-2119 of the Act, and deems it to
be in the public interest and in furtherance of the purposes of the Act to
accept the proposal submitted by Redeveloper as specified herein.
(d) The Redevelopment Project will achieve the public purposes of the
Act by, among other things, increasing employment, improving public
infrastructure, increasing the tax base, and lessening conditions of blight
and substandard in the Redevelopment Area.
(e) (1) The Redevelopment Plan is feasible and in conformity with the
general plan for the development of the City as a whole and the plan is in
conformity with the legislative declarations and determinations set forth
in the Act, and
(2) (i) the Project would not be economically feasible without
the use of tax-increment financing,
-4-
(ii) the Project would not occur in the Redevelopment Area
without the use of tax-increment financing, and
(iii) the costs and benefits of the Project, including costs
and benefits to other affected political subdivisions, the
economy of the community, and the demand for public and private
services have been analyzed by the City and have been found to be
in the long-term best interest of the community impacted by the
Project.
(f) The City has determined that the proposed land uses and building
requirements in the Redevelopment Area are designed with the general
purpose of accomplishing, in conformance with the general plan, a
coordinated, adjusted, and harmonious development of the City and its
environs which will, in accordance with present and future needs, promote
health, safety, morals, order, convenience, prosperity, and the general
welfare, as well as efficiency and economy in the process of development;
including, among other things, adequate provision for traffic, vehicular
parking, the promotion of safety from fire, panic, and other dangers,
adequate provision for light and air, the promotion of the healthful and
convenient distribution of population, the provision of adequate
transportation, water, sewerage, and other public utilities, schools,
parks, recreational and community facilities, and other public
requirements, the promotion of sound design and arrangement, the wise and
efficient expenditure of public funds, and the prevention of the recurrence
of insanitary or unsafe dwelling accommodations, or conditions of blight.
Section 2.02 Representations of Redeveloper.
The Redeveloper makes the following representations:
(a) The Redeveloper is a Nebraska limited liability company, having
the power to enter into this Redevelopment Contract and perform all
obligations contained herein and by proper action has been duly authorized
to execute and deliver this Redevelopment Contract.
(b) The execution and delivery of the Redevelopment Contract and the
consummation of the transactions therein contemplated will not conflict
with or constitute a breach of or default under
-5-
any bond, debenture, note or other evidence of indebtedness or any
contract, loan agreement or lease to which Redeveloper is a party or by
which it is bound, or result in the creation or imposition of any lien,
charge or encumbrance of any nature upon any of the property or assets of
the Redeveloper contrary to the terms of any instrument or agreement.
(c) There is no litigation pending or to the best of its knowledge
threatened against Redeveloper affecting its ability to carry out the
acquisition, construction, equipping and furnishing of the Project or the
carrying into effect of this Redevelopment Contract or, except as disclosed
in writing to the City, as to any other matter materially affecting the
ability of Redeveloper to perform its obligations hereunder.
(d) Any financial statements of the Redeveloper or its Members
delivered to the City prior to the date hereof are true and correct in all
respects and fairly present the financial condition of the Redeveloper and
the Project as of the dates thereof; no materially adverse change has
occurred in the financial condition reflected therein since the respective
dates thereof; and no additional borrowings have been made by the
Redeveloper since the date thereof except in the ordinary course of
business, other than the borrowing contemplated hereby or borrowings
disclosed to or approved by the City.
ARTICLE III
OBLIGATIONS OF THE CITY
Section 3.01 Division of Taxes.
In accordance with Section 18-2147 of the Act, the City hereby provides
that any ad valorem tax on real property in the Project for the benefit of any
public body be divided for a period of fifteen years after the effective date of
this provision as set forth in this section. The effective date of this
provision shall be January 1, 2007.
(a) That proportion of the ad valorem tax which is produced by levy at
the rate fixed each year by or for each public body upon the Redevelopment
Project Valuation (as defined in the Act)
-6-
shall be paid into the funds of each such public body in the same
proportion as all other taxes collected by or for the bodies; and
(b) That proportion of the ad valorem tax on real property in the
Redevelopment Area in excess of such amount, if any, shall be allocated to,
is pledged to, and, when collected, paid into a special fund of the City to
pay the principal of, the interest on, and any premiums due in connection
with the bonds, loans, notes or advances of money to, or indebtedness
incurred by, whether funded, refunded, assumed, or otherwise, such City for
financing or refinancing, in whole or in part, such Project. When such
bonds, loans, notes, advances of money, or indebtedness, including interest
and premium due have been paid, the City shall so notify the County
Assessor and County Treasurer and all ad valorem taxes upon real property
in such Project shall be paid into the funds of the respective public
bodies.
Section 3.02 Issuance of TIF Indebtedness.
City shall incur TIF Indebtedness in the form and principal amount and
bearing interest and being subject to such terms and conditions as are specified
on the attached Exhibit C. No TIF Indebtedness will be issued until Redeveloper
has (a) acquired fee title to the Redevelopment Area; (b) obtained financing
commitments as described in Section 5.01; (c) obtained approvals necessary for
construction of the Project from the Nebraska Department of Environmental
Quality; and (d) entered into a contract for construction of the Project. The
City shall have no obligation to find a lender or investor to acquire the TIF
Indebtedness, but rather shall issue the TIF Indebtedness to or to the order of
Redeveloper upon payment of the principal amount thereof. The City may (but is
not obligated to), from time to time and subject to the provisions of the Act,
issue additional TIF Indebtedness secured by the TIF Revenues for the purpose of
funding additional Project Costs, if projected TIF Revenues are projected to be
sufficient to pay principal and interest on such additional TIF Indebtedness.
-7-
Section 3.03 Pledge of TIF Revenues.
The City hereby pledges the TIF Revenues as security for the TIF
Indebtedness.
Section 3.04 Grant of Proceeds of TIF Indebtedness.
The City will grant to Redeveloper the proceeds of the TIF Indebtedness
incurred as described on Exhibit C. An amount equal to interest payable on such
TIF Indebtedness prior to projected receipt of TIF Revenues may be retained by
any underwriter, placement agent, or bank and applied for such purpose or, at
the option of any such underwriter, placement agent, or bank, deposited in a
reserve fund of Redeveloper to be applied for such purpose.
Notwithstanding the foregoing, the amount of the grant shall not exceed the
amount of Project Costs certified pursuant to Section 4.02. The grant shall be
paid to the Redeveloper upon receipt of requisitions for Project Costs which
include supporting documentation requested by City and shall, if requested by
Redeveloper, be made in one or more advances.
Section 3.05 Creation of Fund.
The City will create a special fund to collect and hold the TIF Revenues.
Such special fund shall be used for no purpose other than to pay TIF
Indebtedness issued pursuant to Sections 3.02 and 3.03 above.
ARTICLE IV
OBLIGATIONS OF REDEVELOPER
Section 4.01 Construction of Project; Insurance.
(a) Redeveloper will complete the Project and install all improvements,
buildings, fixtures, equipment and furnishings necessary to operate the Project.
Redeveloper shall be solely responsible for obtaining all permits and approvals
necessary to acquire, construct and equip the Project. The City agrees, subject
to its governing ordinances, to approve a use permit for construction and
operation of the Project. Until construction of the Project has been completed,
Redeveloper shall make reports in such detail and at such times as may be
reasonably requested by the City as to the actual progress of Redeveloper with
respect to construction of the Project. Promptly after completion by the
Redeveloper of the Project, the Redeveloper
-8-
shall furnish to the City a Certificate of Completion. The certification by the
Redeveloper shall be a conclusive determination of satisfaction of the
agreements and covenants in this Redevelopment Contract with respect to the
obligations of Redeveloper and its successors and assigns to construct the
Project. As used herein, the term "completion" shall mean substantial completion
of the Project.
(b) Any general contractor chosen by the Redeveloper or the Redeveloper
itself shall be required to obtain and keep in force at all times until
completion of construction, policies of insurance including coverage for
contractors' general liability and completed operations and a penal bond as
required by the Act. The City and the Redeveloper shall be named as additional
insureds. Any contractor chosen by the Redeveloper or the Redeveloper itself, as
an owner, shall be required to purchase and maintain property insurance upon the
Project to the full insurable value thereof. This insurance shall insure against
the perils of fire and extended coverage and shall include "All Risk" insurance
for physical loss or damage. The contractor or the Redeveloper, as the case may
be, shall furnish the City with a Certificate of Insurance evidencing policies
as required above. Such certificates shall state that the insurance companies
shall give the City prior written notice in the event of cancellation of or
material change in any of the policies.
Section 4.02 Cost Certification.
Redeveloper shall submit to City a certification of Project Costs, on or
before the date of submission of the Certificate of Completion, prepared by a
certified public accountant acceptable to City, which shall contain detail and
documentation showing the payment of Project Costs specified on the attached
Exhibit D in an amount at least equal to the grant to Redeveloper pursuant to
Section 3.05.
Section 4.03 Redeveloper to Operate Project.
Redeveloper will operate the Project for not less than 15 years from the
effective date of the provision specified in Section 3.01 of this Redevelopment
Contract. Redeveloper shall be relieved of this obligation should it pay the
Liquidated Damages Amount as set forth in Section 6.02.
-9-
Section 4.04 City Costs.
Redeveloper shall reimburse the City, on the date of closing of the TIF
Indebtedness for legal fees and costs then due, and again upon the issuance of
TIF Indebtedness, for legal fees and costs incurred by the City in connection
with this Redevelopment Contract.
Section 4.05 No Discrimination.
Redeveloper agrees and covenants for itself, its successors and assigns
that as long as any TIF Indebtedness is outstanding, it will not discriminate
against any person or group of persons on account of race, sex, color, religion,
national origin, ancestry, disability, marital status or receipt of public
assistance in connection with the Project. Redeveloper, for itself and its
successors and assigns, agrees that during the construction of the Project,
Redeveloper will not discriminate against any employee or applicant for
employment because of race, religion, sex, color, national origin, ancestry,
disability, marital status or receipt of public assistance. Redeveloper will
comply with all applicable federal, state and local laws related to the Project.
Section 4.06 Pay Real Estate Taxes.
Redeveloper intends to create a taxable real property valuation of the
Redevelopment Area and Project of Twenty-Five Million Dollars ($25,000,000) no
later than as of January 1, 2008 and Fifty-One Million Dollars ($51,000,000) no
later than as of January 1, 2009. During the period that any TIF Indebtedness is
outstanding, Redeveloper will (1) not protest a real estate property valuation
on the Redevelopment Area of Fifty-One Million Dollars ($51,000,000) or less
after substantial completion or occupancy; (2) not convey the Redevelopment Area
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; and (3)
cause all real estate taxes and assessments levied on the Redevelopment Area and
Project to be paid prior to the time such become delinquent during the term that
any Bonds are outstanding.
-10-
Section 4.07 Payment in Lieu of Taxes.
Redeveloper agrees to make payments in lieu of taxes, immediately upon
receipt of notice from City, if for any reason at any time TIF Revenues received
by the City are not sufficient to pay principal and interest on the TIF
Indebtedness when due. This payment in lieu of tax obligation may be represented
by a note or other evidence of indebtedness.
Section 4.08 No Assignment or Conveyance.
Redeveloper shall not convey, assign or transfer the Redevelopment Area,
the Project or any interest therein prior to the termination of the 15 year
period commencing on the effective date specified in Section 3.01 hereof,
without the prior written consent of the City, which the City shall grant or
deny within fifteen (15) days of receipt of written request from Redeveloper,
which consent shall not be unreasonably withheld, and which the City may make
subject to any terms or conditions it deems appropriate, except for the
following conveyances, which shall be permitted without consent of City:
(a) any conveyance as security for indebtedness incurred by
Redeveloper for Project Costs or any subsequent physical improvements to
the Redevelopment Area, provided that any such conveyance shall be subject
to the obligations of the Redeveloper pursuant to this Redevelopment
Contract;
(b) any conveyance to any person or entity which owns more than 50% of
the voting equity interests of Redeveloper (if Redeveloper is a
corporation, partnership, limited liability company or other entity) or
with respect to which Redeveloper owns more than 50% of the voting equity
interests, provided that any such successor owner of the Project agrees to
assume all obligations of the Redeveloper and be bound by all terms and
conditions of this Redevelopment Contract;
(c) if Redeveloper is a corporation, partnership or limited liability
company, any merger, consolidation, split off, split-up, spin off or other
reorganization of Redeveloper which does not result in a substantial change
of control or management of the Redeveloper, provided that any such
successor
-11-
owner of the Project agrees to assume all obligations of the Redeveloper
and be bound by all terms and conditions of this Redevelopment Contract.
ARTICLE V
FINANCING REDEVELOPMENT PROJECT; ENCUMBRANCES
Section 5.01 Financing.
Redeveloper shall pay all Project Costs and any and all other costs related
to the Redevelopment Area and the Project which are in excess of the amounts
paid from the proceeds of the TIF Indebtedness granted to Redeveloper. Prior to
issuance of the TIF Indebtedness, Redeveloper shall provide City with evidence
satisfactory to the City that private funds have been committed to the
Redevelopment Project in amounts sufficient to complete the Redevelopment
Project. Redeveloper shall timely pay all costs, expenses, fees, charges and
other amounts associated with the Project.
Section 5.02 Encumbrances.
Redeveloper shall not create any lien, encumbrance or mortgage on the
Project or the Redevelopment Area without the prior written consent of the City
except encumbrances which secure indebtedness incurred to acquire, construct and
equip the Project or for any other physical improvements to the Redevelopment
Area.
ARTICLE VI
DEFAULT, REMEDIES; INDEMNIFICATION
Section 6.01 General Remedies of City and Redeveloper.
Subject to the further provisions of this Article VI, in the event of any
failure to perform or breach of this Redevelopment Contract or any of its terms
or conditions, by any party hereto or any successor to such party, such party,
or successor, shall, upon written notice from the other, proceed immediately to
commence such actions as may be reasonably designed to cure or remedy such
failure to perform or breach which cure or remedy shall be accomplished within a
reasonable time by the diligent pursuit of corrective action. In case such
action is not taken, or diligently pursued, or the failure to perform or breach
shall not be cured or remedied within a reasonable time, this Redevelopment
Contract shall be in default and the aggrieved party
-12-
may institute such proceedings as may be necessary or desirable to enforce its
rights under this Redevelopment Contract, including, but not limited to,
proceedings to compel specific performance by the party failing to perform or in
breach of its obligations.
Section 6.02 Additional Remedies of City.
In the event that:
(a) The Redeveloper, or successor in interest, fails to commence
construction of the Project (which, for purposes of this paragraph shall
mean expenditure (or binding commitments to incur expenditures) of an
amount equal to at least ten percent (10%) of the total projected cost of
the Project) by July 1, 2007;
(b) The Redeveloper, or successor in interest, shall fail to complete
the construction of the Project on or before January 1, 2009, or shall
abandon construction work for any period of 90 days;
(c) The Redeveloper, or successor in interest, shall fail to pay real
estate taxes or assessments on the Redevelopment Area or any part thereof
or payments in lieu of taxes pursuant to Section 4.07 when due; or
(d) There is, in violation of Section 4.08 of this Redevelopment
Contract, and such failure or action by the Redeveloper has not been cured
within 30 days following written notice from City, then the Redeveloper
shall be in default of this Redevelopment Contract.
In the event of such failure to perform, breach or default occurs and is
not cured in the period herein provided, the parties agree that the damages
caused to the City would be difficult to determine with certainty and that a
reasonable estimation of the amount of damages that could be incurred is the
amount of the grant to Redeveloper pursuant to Section 3.04 of this
Redevelopment Contract, less any reductions in the principal amount of the TIF
Indebtedness, plus interest on such amounts as provided herein (the "Liquidated
Damages Amount"). The Liquidated Damages Amount shall be paid by Redeveloper to
City within 30 days of demand from City.
-13-
Interest shall accrue on the Liquidated Damages Amount at the rate of one
percent (1%) over the prime rate as published and modified in the Wall Street
Journal from time to time and interest shall commence from the date that the
City gives notice to the Redeveloper demanding payment.
Payment of the Liquidated Damages Amount shall not relieve Redeveloper of
its obligation to pay real estate taxes or assessments or payments in lieu of
taxes with respect to the Project.
Section 6.03 Remedies in the Event of Other Redeveloper Defaults.
In the event the Redeveloper fails to perform any other provisions of this
Redevelopment Contract (other than those specific provisions contained in
Section 6.02), the Redeveloper shall be in default. In such an instance, the
City may seek to enforce the terms of this Redevelopment Contract or exercise
any other remedies that may be provided in this Redevelopment Contract or by
applicable law; provided, however, that the default covered by this Section
shall not give rise to a right or rescission or termination of this
Redevelopment Contract, and shall not be covered by the Liquidated Damages
Amount.
Section 6.04 Forced Delay Beyond Party's Control.
For the purposes of any of the provisions of this Redevelopment Contract,
neither the City nor the Redeveloper, as the case may be, nor any successor in
interest, shall be considered in breach of or default in its obligations with
respect to the conveyance or preparation of the Redevelopment Area for
redevelopment, or the beginning and completion of construction of the Project,
or progress in respect thereto, in the event of forced delay in the performance
of such obligations due to unforeseeable causes beyond its control and without
its fault or negligence, including, but not restricted to, acts of God, or of
the public enemy, acts of the Government, acts of the other party, fires,
floods, epidemics, quarantine restrictions, strikes, freight embargoes, and
unusually severe weather or delays in subcontractors due to such causes; it
being the purpose and intent of this provision that in the event of the
occurrence of any such forced delay, the time or times for performance of the
obligations of the City or of the Redeveloper with respect to construction of
the Project, as the case may be, shall be extended for the period of the forced
delay: Provided, that the party seeking the benefit of the provisions of this
section shall, within thirty (30) days after the beginning of any such forced
delay, have first
-14-
notified the other party thereof in writing, and of the cause or causes thereof
and requested an extension for the period of the forced delay.
Section 6.05 Limitation of Liability; Indemnification.
Notwithstanding anything in this Article VI or this Redevelopment Contract
to the contrary, neither the City, nor their officers, directors, employees,
agents or their governing bodies shall have any pecuniary obligation or monetary
liability under this Redevelopment Contract. The sole obligation of the City
under this Redevelopment Contract shall be the issuance of the TIF Indebtedness
and granting of a portion of the proceeds thereof to Redeveloper, as
specifically set forth in Sections 3.02 and 3.04. The obligation of the City on
any TIF Indebtedness shall be limited solely to the TIF Revenues pledged as
security for such TIF Indebtedness. Specifically, but without limitation, City
shall not be liable for any costs, liabilities, actions, demands, or damages for
failure of any representations, warranties or obligations hereunder. The
Redeveloper releases the City from, agrees that the City shall not be liable
for, and agrees to indemnify and hold the City harmless from any liability for
any loss or damage to property or any injury to or death of any person that may
be occasioned by any cause whatsoever pertaining to the Project.
The Redeveloper will indemnify and hold each of the City and their
directors, officers, agents, employees and member of their governing bodies free
and harmless from any loss, claim, damage, demand, tax, penalty, liability,
disbursement, expense, including litigation expenses, attorneys' fees and
expenses, or court costs arising out of any damage or injury, actual or claimed,
of whatsoever kind or character, to property (including loss of use thereof) or
persons, occurring or allegedly occurring in, on or about the Project during the
term of this Redevelopment Contract or arising out of any action or inaction of
Redeveloper, whether or not related to the Project, or resulting from or in any
way connected with specified events, including the management of the Project, or
in any way related to the enforcement of this Redevelopment Contract or any
other cause pertaining to the Project.
-15-
ARTICLE VII
MISCELLANEOUS
Section 7.01 Notice Recording.
This Redevelopment Contract or a notice memorandum of this Redevelopment
Contract shall be recorded with the County Register of Deeds in which the
Redevelopment Area is located.
Section 7.02 Governing Law.
This Redevelopment Contract shall be governed by the laws of the State of
Nebraska, including but not limited to the Act.
Section 7.03 Binding Effect; Amendment.
This Redevelopment Contract shall be binding on the parties hereto and
their respective successors and assigns. This Redevelopment Contract shall run
with the Redevelopment Area. The Redevelopment Contract shall not be amended
except by a writing signed by the party to be bound.
Section 7.04 Electric Revenue Matters.
Redeveloper and City hereby revokes, terminates, and voids any and all
actions relating to electric revenues taken by City at City's March 22, 2006 and
September 5, 2006 meetings. Redeveloper hereby gives up, terminates, abandons,
releases, relinquishes remits, and lays aside any and all rights to electric
revenue rents, franchises, fees, money, taxes, or otherwise, if any, it may have
received from City at its March 22, 2006 and September 5, 2006 meetings. In
partial consideration for the Grant of Proceeds of TIF Indebtedness, Redeveloper
releases any claims it has or may have to the aforementioned electric revenue
rents, franchises, fees, monies, or taxes pursuant to Section 7.05 of this
Redevelopment Contract.
Section 7.05 Release of Electric Revenue Claim(s).
Redeveloper specifically releases, waives, and forever discharges City, its
successors in interest, its past, present and future assigns, officers,
directors, subsidiaries, affiliates, insurers and underwriters, from any and all
claims (whether past or present), demands, actions, liabilities and causes of
actions, of every kind and character, whether asserted or unasserted, whether
known or unknown, suspected or unsuspected, in law or in
-16-
equity, for or by reason of any matter, cause or thing whatsoever, arising out
of the City's actions relating to Redeveloper and electric revenues at the
City's meetings on March 22, 2006 and September 5, 2006.
[Remainder of this page intentionally left blank.]
-17-
IN WITNESS WHEREOF, City and Redeveloper have signed this Redevelopment
Contract as of the date and year first above written.
CITY OF XXXXXXXX, NEBRASKA
ATTEST:
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
---------------------- --------------------------
City Clerk. Mayor
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this _____ day of June,
2007, by Xxxxxx Xxxxxx and Xxxxx Xxxxxxxx, Mayor of the City and City Clerk,
respectively, of the City of Xxxxxxxx, Nebraska, on behalf of the City.
( S E A L )
-----------------------------------------
Notary Public
-18-
NEDAK ETHANOL, LLC
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Manager
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2007, by ___________________, Manager of NEDAK Ethanol, LLC, on
behalf of the limited liability company.
( S E A L )
-----------------------------------------
Notary Public
-19-
EXHIBIT A
DESCRIPTION OF REDEVELOPMENT AREA
Commencing at the xxxxxxxxx xxxxxx xx Xxxxxxx 0, X00X, X00X of the 6th P.M. in
Xxxx County, Nebraska; thence easterly on the north line of said Section 4,
53.69 feet, to the point of beginning; thence easterly on said north line, 30.27
feet, to the easterly right-of-way line of State Highway #11; thence southerly
on said east right-of-way line, to a point 33 feet south of the north line of
said NW 1/4; thence easterly on said south line, to a point 33 feet south and
35.05 feet west of the northwest corner of the NE 1/4 of Section 4; thence
southerly on a line 35.05 feet west of the west line of said NE 1/4 of Section
4, 1,113.62 feet; thence southeasterly, 1,747.67 feet; thence northerly 271.03
feet; thence easterly 539.97 feet; thence northerly 635.59 feet, to a point on
the southwesterly right-of-way line of the Cowboy Trail; thence northeasterly
along said Cowboy Trail, 732.85 feet; thence southwesterly and perpendicular to
said Cowboy Trail, 200.00 feet; thence northwesterly and parallel with said
Cowboy Trail, 200.00 feet; thence northeasterly and perpendicular to said Cowboy
Trail, 200.00 feet, to said Cowboy Trail; thence westerly, 1,073.08 feet; thence
northerly 743.67 feet, to a point 33 feet east and 33 feet south of the N 1/4
corner of said Section 4; thence easterly and parallel with the north line of
said Section 4, to the southwesterly right-of-way line of said Cowboy Trail;
thence northwesterly along said Cowboy Trail, to a point 33 feet north of said
north line of Section 4; thence westerly to the east right-of-way line of State
Highway #11; thence southerly along said east right-of-way line of Xxxxx Xxxxxxx
#00, 00 feet, to the point of beginning.
A-1
EXHIBIT B
DESCRIPTION OF PROJECT
An ethanol production facility, including all necessary receiving, storage,
processing, pollution control, waste handling, and shipping buildings, equipment
and furnishings and ancillary facilities sufficient to produce, from corn or
other feed stock, approximately 44 million gallons of ethanol annually.
X-0
XXXXXXX X
XXX XXXXXXXXXXXX
0. Xxxxxxxxx Xxxxxx: Series A: The maximum amount, which, together with interest
accruing thereon, can be fully amortized by December 31,
2021, solely from projected TIF Revenues based on the
current aggregate ad valorem tax rate (together with the
City's ad valorem tax rate) applicable to the Redevelopment
Area times an assumed project valuation of $51,000,000 and a
debt service coverage ratio of 1.20.
Series B: The remaining amount which can be fully amortized
based on the assumptions with respect to the Series A
indebtedness but without assuming a debt service coverage
ratio.
2. Payments: Semi-annually or more frequent, with interest only until
2009, in substantially equal amounts sufficient to fully pay
the TIF Indebtedness in full on or before December 31, 2021.
3. Interest Rate: To be determined by Redeveloper.
4. Maturity Date: On or before December 31, 2021.
C-1
EXHIBIT D
PROJECT COSTS
All Project Costs payable from the proceeds of TIF Indebtedness pursuant to
the Act including:
1. Redevelopment Area Acquisition cost
2. Site work and site preparation
3. Utility extensions, installation of gas, water, sewer and electrical
lines and equipment
4. Construction of roadways and rail service lines
5. Pollution control equipment
D-1
