HomeMy WebLinkAboutConAgra Foods Packaged Foods, LLC.-5/26/2015Please return this copy to;
City Clerk & Finance Dept.
715 Mulberry St.
Waterloo, IA 50703
SECOND AMENDMENT TO DEVELOPMENTAL AGREEMENT
This Second Amendment to Developmental Agreement (the "Amendment") is entered
into as of kkowk LL , 2015, by and between the City of Waterloo, Iowa ("City") and
ConAgra Foods Packaged Foods, LLC ("CAF").
RECITALS
A. ConAgra Foods Packaged Foods, LLC is a successor in interest to ConAgra Foods
Packaged Foods Company, Inc., successor to Hunt -Wesson, Inc., which was a
party with City to that certain Developmental Agreement dated May 14, 1997 (the
"Agreement") concerning the development of land as described in the Agreement.
The Agreement was amended by an amendment dated May 8, 2006 and recorded
as Doc. No. 2006-29335.
B. CAF is willing and able to expand its facility upon the Property in conformity with
the "Phase III" development described in the Agreement, and City is willing to
provide certain incentives to CAF to aid in the project.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
parties hereby agree as follows:
1. Phase III Improvements. CAF agrees to construct an expansion of its existing
facility upon the Property of approximately 99,000 square feet, corresponding approximately to
the "Phase III" development described in the Agreement ("Phase III"), including related
landscaping and parking (collectively, the "Improvements"). The Improvements shall be
constructed in accordance with all applicable City, state, and federal building codes and shall
comply with all applicable City ordinances, including but not limited to any necessary setbacks
required to ensure the use of MidPort Boulevard as an access road for the Waterloo fire
department. CAF agrees that the completed Phase III Improvements shall add to the Property
no less than $10,000,000 in value over the assessed value of Phase I and Phase II at the
commencement of the Phase III project, so that the assessed value of the Property following
completion of Phase III is no Tess than $35,000,000.
2. Exercise of Option. By this Amendment, CAF exercises its option under
Section 17.A of the Agreement to acquire the Additional Land, which since the date of the
Agreement has been replatted to be legally described as Lot 11 in MidPort America Park Plat
No. 2. The provisions of Sections 5 and 6 of the Agreement, as amended by this Amendment,
shall govern with respect to the deed and title for the Additional Land. In addition to the matters
affecting title stated in said Section 5, title shall be subject to any and all restrictions and
covenants applicable to MidPort America Park Plat No. 2. Closing shall occur on a date that is
mutually agreeable to the parties, but within sixty (60) days of the date of this Amendment. CAF
may use the Additional Land for additional parking, truck maneuvering, and other activities in
support of its production facility on the Property.
3. Timeliness of Construction; Possibility of Reverter; Indemnity. CAF agrees
that the timeliness provisions of Section 17.A(1) of the Agreement shall apply to construction of
the Improvements. The parties agree that the Improvements will be principally constructed on
the Property but that the Additional Land will be subject to possible reverter as provided in said
Section 17.A(1) if the Improvements are not constructed within the period allowed and if CAF
does not elect to pay the sum of $50,000 per acre for the Additional Land as an alternative to
reverter of title. In the event of any reverter of title, CAF agrees that it shall, at its own expense,
promptly execute all documents, including but not limited to a special warranty deed, or take
such other actions as the City may reasonably request to effectuate said reverter and to deliver
to City title to the Additional Land that is free and clear of any lien, claim, or encumbrance
arising by or through CAF. CAF shall pay in full, so as to discharge or satisfy, all liens, claims,
charges, and encumbrances on or against the Additional Land.
In connection with any reverter of title, CAF further agrees that it shall indemnify
City and hold it harmless with respect to any lien, claim, charge, or encumbrance on or against
the Additional Land of any type or nature whatsoever that attaches to the Additional Land by
virtue of CAF's ownership of same. If City files suit to enforce the terms of this Agreement and
prevails in such suit, then CAF shall be liable for all legal expenses, including but not limited to
reasonable attorneys' fees. CAF's duties of indemnity pursuant to this Section shall survive the
expiration, termination or cancellation of this Agreement for any reason.
4. Exclusion of Land. City operates a wastewater pretreatment and flow -
equalization facility (the "Facility") on Airline Highway to service CAF's production plant. To
adequately service CAF's plant, it was necessary for City to expand the Facility onto the
Additional Land, and the parties agree that City should retain ownership of all land on which the
Facility is situated. The parties therefore agree that the real property described on Exhibit "A"
attached hereto shall be excluded from the Additional Land that City will convey to CAF
pursuant to Section 2 above.
5. Minimum Assessment. CAF acknowledges and agrees that it will pay when
due all taxes and assessments, general or special, and all other charges whatsoever levied
upon or assessed or placed against the Property as a result of the Phase III Improvements, and
further agrees that prior to the date set forth in Section 2 of Exhibit "B" attached hereto, it will not
seek or cause a reduction in the taxable valuation of Phase III, which shall be fixed for
assessment purposes, below the amount of $10,000,000 ("Minimum Actual Value"), through:
(1)
willful destruction of the Property, the Improvements, or any part of either;
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with any
administrative body or court within the City, Black Hawk County, the State
of Iowa, or the federal government.
As a condition to receiving property tax rebates in connection with the Improvements, CAF
agrees to sign said attached Exhibit "B" concurrently with the signing of this Agreement.
6. City Activities in Aid of Development. In addition to the property tax rebates
as provided in Section 3.0 of the Agreement, and as an additional inducement to CAF to
undertake the Phase III Improvements, City agrees to provide the following incentives to CAF at
City's sole expense:
A. Street construction. City agrees to complete construction of MidPort
Boulevard so that it runs continuously from Airport Boulevard on the west to Airline Highway on
the south. The street shall be completed within six (6) months from the date that CAF delivers
to City its commitment to proceed with construction of the Improvements, subject to a
reasonable extension of time for factors beyond the reasonable control of City, including but not
limited to weather or seasonal conditions that make street construction impracticable.
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4813-3841-5140, v. 1
B. Grant for utilities extension. Within sixty (60) days after CAF delivers to
City its commitment to proceed with construction of the Improvements, City will make a grant of
$600,000 to CAF to assist CAF in covering the expense of supplying water service, sanitary
sewer service, electrical service, and natural gas service to a new Phase III building at a
location to be determined by CAF. Water service shall include such number of exterior fire
hydrants as may be required by applicable codes for the Improvements. If reverter of title to the
Additional Land occurs as provided in Section 3 above, then CAF shall repay the grant to City
within thirty (30) days after delivery of the deed, and if not timely repaid then said grant sum
shall accrue interest at the rate of 12% per annum, compounded monthly, until repaid.
C. Wastewater treatment. City and CAF shall cooperate in good faith to
determine the wastewater treatment needs of CAF's production facility, and City shall provide
sufficient treatment capacity to properly handle CAF's wastewater stream. City shall obtain
such water discharge permits or amendments to water discharge permits as may be necessary
in connection with treatment of wastewater from CAF's operations.
D. FAA clearances. City will obtain any approvals necessary from the
Federal Aviation Administration in connection with the Improvements and construction of same.
E. Project review and assistance. The parties acknowledge and agree that
the project will require CAF to obtain various approvals from the City of Waterloo and/or other
applicable governmental authorities, including but not limited to zoning, site plan, building permit
and other approvals required or necessary for CAF's proposed Improvements to the Property.
City will assist in coordinating review and approval processes with the goal of allowing a
groundbreaking by June 30, 2015. Within ten (10) business days of receiving any application or
plan submittal from CAF, City staff will review and take action on same, either to approve,
forward it to the appropriate government body for approval, or advise CAF, its contractors or
agents, of any deficiencies or concerns. Notwithstanding the foregoing, City will process all
requests for approval according to the same quality or technical standards as are generally
applicable to substantially similar requests.
F. Support for applications. City agrees that it will cooperate in good faith
with CAF and, if necessary for program requirements, sponsor CAF applications for available
state tax credits and/or rebates, community college job training funds, and other available
government funding, if CAF chooses to make application for same. Where appropriate and
subject to available funding, City will provide local matching funds that may be required in
connection with State of Iowa incentive programs.
7. Phase IV; Rebates. The parties contemplate that CAF may in the future choose,
in its sole discretion, to undertake an additional phase of improvements ("Phase IV') to the
Property and/or Additional Land. Provided that construction of Phase IV improvements is
commenced within ten (10) years from the date of this Amendment and is thereafter completed,
and provided further that CAF enters into a minimum assessment agreement with respect to the
added taxable value of such improvements, substantially in the form attached hereto as Exhibit
"B", then City agrees to provide rebates of property taxes paid by CAF on the added value of
Phase IV improvements. Rebates will be paid with respect to Phase IV on the same schedule
that applicable to Phase 3 as set forth in Exhibit "D" to the Agreement. Rebates will be payable
in respect of a given year only to the extent that CAF has actually paid general property taxes
due and owing for such year. To receive rebates for a given year, CAF must, within twelve (12)
months after the tax payment due date, submit a completed rebate request to City on the form
provided by or otherwise satisfactory to City, or the rebate for that year shall be subject to
forfeiture. The taxable value of the property as a result of the improvements must be increased
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4813-3841-5140, v. 1
by a minimum of 10% and must increase the annual tax by a minimum of $500.00. This rebate
program is not applicable to any special assessment levy, debt service levy, or any other levy
that is exempted from treatment as tax increment financing under the provisions of applicable
law. The first year of in which a rebate may be given ("Year 1") shall be the first full year for
which the assessment is based upon the completed value of the Phase IV improvements, and
not based on a prior year for which the assessment is based solely upon (x) the value of the
property or upon (y) the value of the property and a partial value of the improvements due to
partial completion of the improvements or a partial tax year.
8. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, all of
which must be completed within sixty (60) days from the date this Agreement is approved by the
City council. If such completion does not occur, then any conveyance, benefit or incentive of
any type provided by City hereunder within said 60 -day period is subject to reverter of title,
revocation, repayment or other appropriate action to restore such property, benefit or incentive
to City, and Company agrees to cooperate diligently and in good faith with any reasonable
request by City to effectuate the restoration of same, or failing such restoration CAF agrees to
be liable for same or for the fair value thereof, plus interest on any sums owing at the rate of
10% per annum commencing with the date of demand for payment, if said payment is not
remitted to City within 30 days.
9. Materiality of CAF's Promises, Covenants, Representations, and
Warranties. Each and every promise, covenant, representation, and warranty set forth in this
Agreement on the part of CAF to be performed is a material term of this Agreement, and each
and every such promise, covenant, representation, and warranty constitutes a material
inducement for City to enter this Agreement. CAF acknowledges that without such promises,
covenants, representations, and warranties, City would not have entered this Agreement. Upon
breach of any promise or covenant, or in the event of the incorrectness or falsity of any
representation or warranty, City may, at its sole option and in addition to any other right or
remedy available to it, terminate this Agreement and declare it null and void.
10. Signature Authority. City warrants and represents to CAF that the persons
signing this Amendment have full power and authority to do so, and that the persons signing the
deed and other closing documents will have the power and authority to do so. CAF warrants
and represents to City that the person signing this Agreement has full power and authority to do
so.
11. Miscellaneous Terms. The "miscellaneous provisions" set forth in Section 18 of
the Agreement are hereby incorporated by reference as though set forth herein in full.
Capitalized terms used herein that are not defined herein shall have the meaning ascribed to
them in the Agreement. This Amendment is binding upon and shall inure to the benefit of the
parties and the respective successors and assigns of each.
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Developmental Agreement by their duly authorized representatives as of the date first set forth
above.
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4813-3841-5140, v. 1
CONAGRA FOODS PACKAGED
FOODS COMPANY, LLC
By.
Title:
5
4813-3841-5140, v. 1
CITY OF WATERLOO, IOWA
B
rnest G. Clark, Mayor
By.A.
Suzy Scfires, City Clerk
puei papnpx3
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WAYNE CLAASSEN ENGINEERING AND SURVEYING, INC.
P.O. BOX 898 WATERLOO, IOWA 50704-0898
PHONE: (VOICE) 319-235-6294
(FAX) 319-235-0028
PLAT OF SURVEY
PARCEL "F"
PART OF LOT 11, MIDPORT AMERICA PARK PLAT No. 2,
WATERLOO, BLACK HAWK COUNTY, IOWA
SURVEY FOR: CITY OF WATERLOO
PROPRIETOR: CITY OF WATERLOO
LEGAL DESCRIPTION
PARCEL "FL
SHEET 1 OF 2
Thot part of Lot Eleven (11). Midport America Pork Plot No. 2, Waterloo, Block Hawk County, Iowa, described os follows:
Beginning of the Southeost corner of Tract C, Midport Americo Pork; thence N14'02'34"E Two Hundred Seventy—five and
Forty—seven Hundredths (275.47) feet along the East line of said Tract C to the Northeast corner of said Tract C; thence
N75'59'52"W One Hundred Ninety—nine and Ninety—nine Hundredths (199.99) feet along the North line of said Tract C to
the Northwest corner of said Tract C; thence N14'02'02"E Ninety—eight and Forty—two Hundredths (98.42) feet along the
West tine of oforesoid Lot Eleven (11): thence 571'21'20"E Two Hundred Eleven and Forty—three Hundredths (211.43) feet:
thence S15'46'00 -W Three Hundred Fifty—six and Ninety—five Hundredths (356.95) feet to the point of beginning containing
19,979 square feet.
NOTES:
1. The basis of bearings for this Plat of Survey is the
West line of Lot Eleven (11) assigned a bearing of
N14'02'02"E os per Iowa State Plane Coordinate System.
North Zone.
C
E
S FIELD
8OOK
504-75
This Plot or Subdivision has been reviewed by (City of Waterloo)
Signature of (City of Waterloo)
Zoning Ordinance Administrator
Dote
CERTIFICATION
I hereby certify that this land surveying document was prepared and the related
survey work was perfomned by me or under my direct personal supervision and
that I am o duly Licensed Land Surveyor under the laws of the State of Iowa.
Date of Survey APO 06, 2015
Signature:
David -L Sche8, LS.
not.. 11.1,. . 4' 20 1'1 License No 16775
Pages or Sheets Covered by this Seal: 2
fly license renewal dote b December 31, 2016
ON 3114 S30
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WAYNE CLAASSEN ENGINEERING AND SURVEYING, INC.
P.Q. BOX 898 WATERLOO, IOWA 50704-0898
PHONE: (VOICE) 319-235-6294
(FAX) 319-235-0028
60
1 INCH = 60 FEET
SURVEY LEGEND:
PLAT OF SURVEY
PARCEL "F"
PART OF LOT 11, MIDPORT AMERICA PARK PLAT No. 2,
WATERLOO, BLACK HAWK COUNTY, IOWA
SURVEY FOR: CITY OF WATERLOO
PROPRIETOR: CITY OF WATERLOO
• DENOTES FOUND PIN & YELLOW
CAP #8033
(UNLESS NOTED OTHERWISE)
O DENOTES 1/2" X 24" STEEL
REBAR W/ RED PLASTIC
CAP W/ NO. 16775 SET
000.00 DENOTES RECORD DIMENSION
(000.00) DENOTES FIELD DIMENSION
LOT 10
MIDPORT AMERICA PARK
FENCE OFFSET
(6.7'WEST)
c
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SFIELD BOOK
504-75
/
SHEET 2 OF 2\
LOT 11
MIDPORT AMERICA PARK PLAT No. 2
L.6.3
200
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LOT .11
MIDPORT AMERICA PARK PLAT No. 2
FENCE OFFSET
9.6'WEST)
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EXHIBIT "B"
MINIMUM ASSESSMENT AGREEMENT
Phase III
This Minimum Assessment Agreement (the "Agreement") is entered into as of
, 2015, by and among the CITY OF WATERLOO, IOWA
("City"), CONAGRA FOODS PACKAGED FOODS COMPANY, LLC ("Developer"), and
the COUNTY ASSESSOR of the City of Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Developer have entered
into an amendment to a developmental agreement (the "Amended Development
Agreement") regarding certain real property legally described as "Lot 10, MidPort
America Park Plat No. 1, City of Waterloo, Iowa" (the "Property"), located in the City;
and
WHEREAS, it is contemplated that pursuant to the Amended Development
Agreement, the Developer will undertake the development of an area (the "Phase III
Project") within the "MidPort Development Area" of the City; and
WHEREAS, pursuant to Iowa Code § 403.6, as amended, the City and the
Developer desire to establish a minimum actual value for the land and the building(s)
pursuant to this Agreement and applicable only to the Phase III Project, which shall be
effective upon substantial completion of the Phase III Project and from then until this
Agreement is terminated pursuant to the terms herein and which is intended to reflect
the minimum actual value of the land and buildings as to the Phase III Project only; and
WHEREAS, the minimum assessment agreements previously executed by the
parties with respect to the "Phase 1" improvements and "Phase II" improvements are not
intended to be modified by this Agreement, but shall continue to establish the minimum
actual value of $12,000,000 and $13,000,000, respectively, for such improvements in
accordance with the terms of said minimum assessment agreements and the related
developmental agreements; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the improvements (the "Improvements") which the parties contemplate
will be erected as a part of the Phase III Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Phase III Project by the
Developer, the minimum actual taxable value which shall be fixed for assessment
purposes for the Improvements to be constructed thereon by the Developer as a part of
the Phase III Project shall not be less than $10,000,000 ("Minimum Actual Value") until
termination of this Agreement. The parties hereto agree that construction of the
Improvements will be substantially completed on or before December 31, 2016.
2. The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, twenty-four years
from the first full year on which the assessment is based solely on the completed value
of the Project, further provided, if for any reason the High Quality Jobs Creation
Program tax exemption or rebatement is terminated by the State of Iowa prior to normal
termination of this Agreement, the remaining years of tax rebatement shall be rebated
by City according to Exhibit "D" of the Amended Development Agreement as allowed
under Iowa Code Chapter 15A and/or the Airport Multi -Modal Park Development Plan.
Nothing herein shall be deemed to waive the Developer's rights under
Iowa Code § 403.6, as amended, to contest that portion of any actual value assignment
made by the Assessor in excess of the Minimum Actual Value established herein. In no
event, however, shall the Developer seek or cause the reduction of the actual value
assigned below the Minimum Actual Value established herein during the term of this
Agreement.
3. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording.
4. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Amended Development Agreement.
5. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
ATTEST:
By:
Suzy Sc ares, City Clerk
4813-3841-5140, v. 1
2
CITY OF WI TERLOO, IOWA
By:
Ernest G. Clark, Mayor
CONAGRA FOODS PACKAGED
FOODS, LLC
By: p
Title:I3t PROOtiir -k
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
On this day of , 2015, before me, a Notary
Public in and for the State of Iowa, personally eared Ernest G. Clark and Suzy
Y pp
Schares, to me personally known, who being duly sworn, did say that they are the
Mayor and City Clerk, respectively, of the City of Waterloo, Iowa, a municipal
corporation, created and existing under the laws of the State of Iowa, and that the seal
affixed to the foregoing instrument is the seal of said municipal corporation, and that
said instrument was signed and sealed on behalf of said municipal corporation by
authority and resolution of its City Council, and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said municipal corporation
by it and by them voluntarily executed.
A•"""` •
•
NANCY HIGBY
COMMISSION NO.788229
MY COMMISSION EXPIRES
STATE OF NEBRASKA
COUNTY OF DOUGLAS
Acknowledged before me on
as Ulm NUS,Dtj,
4813-3841-5140, v. 1
NotaryPublic
) ss.
21 , 2015 by ER -ECM III-(4NS®�
of ConA ra Foods Packaged Foods, LLC
9 9
(7464,61
Notary Public
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403 trr,
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CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the improvements to
be constructed and the market value assigned to the land upon which the improvements
are to be constructed for the development, and being of the opinion that the minimum
market value contained in the foregoing Minimum Assessment Agreement appears
reasonable, hereby certifies as follows: The undersigned Assessor, being legally
responsible for the assessment of the property subject to the development, upon
completion of improvements to be made on it and in accordance with the Minimum
Assessment Agreement, certifies that the actual value assigned to such building and
equipment related to the Phase III expansion upon completion of the development shall
not be Tess than Ten Million Dollars ($10,000,000.00).
Ass's r • r Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on &' — /I , 2015, by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
/21-e7_
Notary Public
4
4813-3841-5140, v. 1
DEBORAH L. BOECKMANN
MY COMMISSION NO. 186788
$ MY CQ7,I / IRES