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.
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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.
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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
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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
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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.
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