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HomeMy Public PortalAboutAmemdment No. 1 to Contract No. 62-2016 - Law - Infrastructure Improvement - Heartland FIRST AMENDMENT TO INFRASTRUCTURE IMPROVEMENT AGREEMENT THIS FIRST AMENDMENT TO INFRASTRUCTURE IMPROVEMENT AGREEMENT ("Amendment") between HEARTLAND PET FOOD MANUFACTURING INDIANA, LLC, a limited liability company duly organized and validly existing under the laws of the State of Delaware (the "Company"), the CITY OF RICHMOND, INDIANA, a political subdivision duly organized and validly existing under the laws of the State of Indiana(the"City"), WAYNE COUNTY, INDIANA, a political subdivision duly organized and validly existing under the laws of the State of Indiana (the "County"), and the ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY, INDIANA, a non-profit corporation duly organized and validly existing under the laws of the State of Indiana (the "EDC") is made effective as of March 31,2021 ("Effective Date"), by and among the parties hereto, collectively, the "Parties." RECITALS 1. On May 27, 2016, the Company, the City, the County, and the EDC executed an Infrastructure and Improvement Agreement(the"Agreement") in order to induce the Company to construct and operate a new manufacturing facility in the Midwest Industrial Park,Wayne County, Indiana, and the City, the County, and the EDC, agreed to cause to be constructed certain infrastructure improvements, which are more particularly set forth in the Agreement and Exhibit A thereto. 2. Pursuant to the Agreement, the City was responsible for all project costs incurred in connection with the Railroad Spur described in the Agreement. The City was responsible for designing and engineering the Railroad Spur in accordance with the requirements of Norfolk Southern Railway and the Company. Additionally, the Company was provided the right to approve the final construction documents for the Railroad Spur. 3. Exhibit B of the Agreement provides for an outside completion date of the Railroad Spur with the exact date to be decided based on the Company's completion schedule for,and operational needs of, the Facility. The Company was required to give written notice to the City to commence the planning and design process for the Railroad Spur. Such notice was to be given no later than March 31, 2021, or three (3) years after the date that plan operations commence at the Facility, whichever is later. 4. On March 9, 2021, the Company requested additional time to comply with the notice requirements described in paragraph three (3), above; however, the City, acting through its Redevelopment Commission,chose not to act on the request;but rather,allow the notice expiration date to pass, thereby allowing the parties to explore additional negotiations relative to a potential extension of the notice deadline, which could be, and now are, incorporated into an amendment to the Agreement. 1 5. The Company and City have discussed mutually agreeable extensions to the notice deadline pertaining to the Company's requirement to request the City to initiate the planning and designing of the Railroad Spur, as well the implementation of financial maximums of the City's contribution to the planning, designing, and construction of the same. 6. The County and EDC are made parties to this Amendment by virtue of being parties to the Agreement; however, neither party had under the Agreement, or has under this Amendment, any obligations, financial or otherwise, as it relates to the planning, design, and construction of the Railroad Spur. NOW, THEREFORE, in consideration of the mutual agreements contained in this Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and notwithstanding anything contained in the Agreement to the contrary, the Parties agree as follows. 1. Article 1.1 —Definitions. This Article is amended to reflect that"Lead Contracting Party" shall mean the Company with respect to the Railroad Spur. 2. Article 2.3 —Allocation of Project Costs. The City shall be responsible for(a) the Project Costs incurred in connection with the Railroad Spur in an amount up to, and including,the sum of One Million Dollars and 00/100 ($1,000,000.00). The City's obligation to fund the Railroad Spur shall be allocated first to planning, design and engineering fees, and then to actual construction. The City shall remit payment to the Company upon the Company tendering invoices reflecting work associated with the work contemplated by this Amendment, which invoices must be satisfactory to the City. The Company shall be financially responsible for any and all project costs, as the same relate to the Railroad Spur,for any amount in excess of One Million Dollars and 00/100 ($1,000,000.00). The Company shall be responsible, as more particularly set forth in Amended Section 3.2 below, for securing all work for the planning, design, engineering, and construction of the Railroad Spur, and the Company shall, upon tendering the notice set forth in Amended Exhibit B, below, have an absolute obligation to finalize the Railroad Spur so that the same permits railcar to deliver materials to the Company. The default provisions of Article 5.1 of the Agreement remain in full force and effect, which would permit the City to seek damages in a court of law, as well as any declaratory judgments,or specific performance. The Company agrees that if it accepts monies from the City under this Amendment, and the Company fails to finalize the Railroad Spur such that railcar may deliver materials to the Company, the City's damages will be, at a minimum, the amount of monies tendered to the Company under this Amendment, and, if successful, the City is entitled to its reasonable attorney's fees in prosecuting such an action. 3. Article 3.2 — Design. The Company shall cause the Railroad Spur to be designed and engineered in accordance with the requirements of Norfolk Southern Railway and the Company. The Company shall work cooperatively with Norfolk Southern Railway and the City to determine the best location and other critical characteristics to be incorporated into the design taking into consideration the railcar capacity needs for the Facility. 2 4. Article 6.9 Notices. This Article is amended to reflect that any notice or communication under the Agreement directed to the City should be copied to: Andrew J. Sickmann Richmond City Attorney Boston Bever Forrest Cross & Sickrnann 27 N. 8th Street Richmond, IN 47374 5. Exhibit B — Schedule. Exact date to be decided based on the Company's completion schedule for, and operation needs of, the Facility. The Company will give written notice to the City that it intends to commence the planning and design process for the Railroad Spur. Such notice shall be given no later than March 31, 2022. Within three (3) months after receipt of the Company's notice, the Company will commence the planning and design process for the Railroad Spur and will cause the Railroad Spur to be substantially completed within eighteen(18) months after receipt of the Company tendering its notice to the City. 6. Force and Effect. Except to the extent specifically modified by this Amendment, the Agreement shall remain in full force and effect. 7. Conflict; Miscellaneous. Any conflict between the provisions of this Amendment and the Agreement shall be resolved in favor of this Amendment. The term "Agreement" as used herein shall,where appropriate,include the terms of this Amendment. The Agreement as amended by this Amendment shall remain in full force and effect and is ratified and affirmed. This Amendment may be signed in several counterparts, all of which will be deemed an original but all of which together will be one and the same instrument. Faxed signatures, or scanned and electronically transmitted signatures on this Amendment, shall be deemed to have the same legal effect as original signatures. If any provision in this Amendment is found by a court of law to be in violation of any applicable ordinance, statute, law, administrative or judicial decision, or public policy, and if such court should declare such provision to be illegal, void or unenforceable as written,then such provision shall be given force to the fullest possible extent that the same is legal, valid and enforceable,and the remainder of this Amendment shall be construed as if such provision were not contained therein. The Parties have each signed this Amendment freely after consultation with and on the advice of counsel of their choice, and without relying on any understanding, covenant, agreement,representation or warranty not expressly included in this Amendment. IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to the Agreement to be duly executed the day and year first written above. City of Rich itt diana Wayne �. unty, I In,' B \ B 4, //A / vid M. ow ayor K nneth '.•st, Corgi ssioner 3 FIRST AMENDMENT TO INFRASTRUCTURE IMPROVEMENT AGREEMENT By �,, J f asterer, Commissioner an_eBy Mary e Butters, Commissioner Economic Development Corporation of Wayne County,Indiana BygjLJ4 Valerie Shaffer, P dent HEARTLAND PET FOOD MANUFACTURING INDIANNA,LLC By: `1%'-ca.. Name: Title: Rebecca Crane,VP NASC Strategy Prepared By: Andrew J.Sickmann BOSTON BEVER FORREST CROSS&SICKMANN 27 N.8'1'Street Richmond,IN 47374 4 EXHIBIT A Description of Infrastructure Improvements A. Road Improvements. Road Improvements to Gaar-Jackson Road from Round Barn Road to Centerville Road, a distance of approximately two (2)miles, will be completed to provide the Company additional heavy truck traffic access to Interstate 70, exit 145, going east and west in Centerville. Road Improvements to Round Barn Road from Gaar-Jackson Road to Industries Road, a distance of approximately % mile, will be completed to provide the Company additional heavy truck access to Interstate 70, exit 149, in Richmond. The Road Improvements will include widening of the road to minimum 12 ft. paved travel lanes and re-paving to support heavy truck traffic, as well as all necessary design,permitting, existing utility relocations,paved shoulders, utilities, earthwork, surface drainage features, acceleration/deceleration/turn lanes, and right-of- way/easements acquisition. Approximately one-half('A) mile of the Road Improvements to Gaar-Jackson Road are located within the City of Richmond, approximately one and one-half (1%Z)miles of the Road Improvements to Gaar Jackson Road are located outside the City of Richmond, and all of the Road Improvements for Round Barn Road are located within the City of Richmond. Based upon the review by Patriot Engineering as to the structural needs of the proposed Road Improvements,the County agrees that the improved and finished Road Improvements will have structural criteria set forth in the American Association of State Highway and Transportation Officials' (AASHTO) Guide for Design and Pavement of Structures, 1993 edition, and that the Road Improvements will have a Design Structural Number (SN) of 3.50 to 4.00. The Road Improvements will also satisfy applicable provisions of the Indiana Department of Transportation Design Manual for roadways that support heavy truck traffic. The Project Costs for the Road Improvement shall be shared fifty percent (50%)to the City and fifty percent(50%)to the County. B. Railroad Spur. Connection to the existing Norfolk Southern Railway track by construction of a new industrial track to the northwestern property line of the Facility, which will include a lead track and a runaround track. The location, length and railcar capacity of the new industrial lead track and runaround track shall be agreed to by the City,the Company and Norfolk Southern Railway based on the Company's transportation requirements for the product to be manufactured and shipped to and/or from the Facility. A-1