HomeMy WebLinkAboutConagra Foods Packaged Foods, LLC-Easement Agreement-02.02.2009 Prepared by Chris Aupperle, ConAgra Foods, Inc., One ConAgra Drive, Omaha, NE 68132 (402)595-7068.
Return to preparer after recording.
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (the "Agreement") is made and entered into
effective the a day of February, 2009 (the "Effective Date"), by and between
CONAGRA FOODS PACKAGED FOODS, LLC, a Delaware limited liability company
("ConAgra") and the City of Waterloo, Iowa, a municipal corporation (the "City").
RECITALS:
A. The City is the owner of that certain real property located in Waterloo, Black
Hawk County, Iowa, legally described as in Exhibit A ("City Parcel"), which is
incorporated herein by reference;
B. ConAgra is the owner of that real property located in Waterloo, Blackhawk
County, Iowa, legally described as in Exhibit B ("ConAgra Parcel"), which is
incorporated herein by reference;
C. Simultaneously with the execution of this Agreement, ConAgra is purchasing rail
track, along with all appurtenances thereof, including without limitation the rail
and fastenings, switches, bumpers, ties, ballast, roadbed, embankment, culverts
and any other structures and things necessary for the support of and entering
into the construction of said track ("Track") from the City pursuant to a separate
bill of sale, and a portion of the Track is located on the City Parcel;
D. ConAgra and the City desire to enter into this Agreement to provide an easement
for ConAgra to use and maintain the Track on the City Parcel pursuant to the
terms and conditions contained herein.
AGREEMENT:
NOW THEREFORE, in consideration of the covenants and agreements set forth
below together with the foregoing recitals, which are made a contractual part hereof, the
parties hereby agree as follows:
1. Easement to ConAgra. In consideration of the sum of Ten and 00/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the City does hereby grant to ConAgra, for the benefit of
ConAgra, its successors, assigns, employees, invitees, licensees, tenants, contractors,
or other agents, a perpetual easement (subject to termination as set forth herein) and
unrestricted right of ingress and egress in, on, over, under and across the Easement
Area for the purpose of using, maintaining, repairing, replacing and removing the Track.
The term "Easement Area" as used in this Agreement shall mean an area consisting of
twenty five (25) feet on either side of the Track as it currently exists today on the City
Parcel and as generally depicted on Exhibit C.
2. Termination of Easement. Notwithstanding anything to the contrary in Section 1
above, the Easement may be terminated in any of the following ways:
(a) At any time by the mutual written agreement of the parties or their
respective successors in interest;
(b) Twenty-four (24) months following removal of the Track and ConAgra's
failure to lay down a new track across the Easement Area; or
(c) After seven (7) years of continuous non-use of the Track;
provided, however, that to effectuate a termination pursuant to clauses (b) or (c) above
the City shall first deliver to ConAgra written notice of intent to terminate the Easement,
citing the grounds for termination, and ConAgra shall thereafter have twelve (12) months
in which to cure the cited condition or otherwise to establish to the reasonable
satisfaction of the City that the citation of such condition is in error. The intent of this
section is to provide a mechanism to bring finality to the property interest created
hereunder when circumstances reasonably indicate that ConAgra has ceased to make
effective use of the rights granted hereunder, and not to precipitously extinguish such
rights. The parties agree to act in good faith in connection with any action to terminate
or maintain the Easement. The City may perfect a termination of the Easement by
recording in the land records of Black Hawk County, Iowa, a copy of the written notice to
ConAgra and an affidavit attesting to the particulars of mailing said notice and the lapse
of the 12-month period following delivery of the notice.
3. No Unreasonable Interference. The City shall do nothing, nor permit anything to
be done, on the City Parcel which will unreasonably interfere with the rights granted to
ConAgra herein.
4. Maintenance and Repairs to the Easement Area. ConAgra shall, at its sole cost
and expense, maintain and repair the Track as long as it is existing on the City Parcel.
5. Compliance with Track Agreement and Laws. ConAgra agrees that ConAgra
shall not, by its act or omission, do or permit to be done or fail to do any act which shall
result in a violation of any applicable statute, ordinance, order, permit, rule or regulation,
or any rules and regulations imposed by the railroad regulating the use of ConAgra's
Tracks.
6. No Waiver. The failure of either party to enforce its rights under this Agreement
for any period of time shall not constitute a waiver of any rights hereunder, and the
waiver of any rights under any particular term or provision hereunder at any particular
time shall not prevent a party from later enforcing such term or provision.
7. Insurance. During the term of this Agreement, ConAgra shall carry commercial
general liability insurance with limits not less than $2,000,000.00 per occurrence for
injuries, death and property damage arising from any one occurrence on the Easement
Area or related to the exercise of any rights hereunder, business auto liability insurance
with limits not less than $2,000,000.00, per occurrence for injuries, death and property
damage arising from any one occurrence on the Easement Area or related to the
exercise of any rights hereunder and workers' compensation insurance in accordance
with applicable state law. ConAgra shall provide the City with a certificate of insurance
indicating such coverage within fifteen (15) days of receipt of a written request by the
City. The City shall be named as an additional insured under the liability policies
required hereunder.
8. Notices. Any notices sent under this Agreement shall be sent by certified mail,
return receipt requested, postage prepaid, or by nationally recognized overnight courier,
next day delivery, to ConAgra at ConAgra Foods Packaged Foods, LLC, One ConAgra
Drive, Omaha, Nebraska 68102, Attn: Legal Department — Real Estate, with a copy to
ConAgra Foods Packaged Foods, LLC, 2701 Midport Blvd., Waterloo, IA 50703, Attn:
Plant Manager; and to the City at, City of Waterloo, 715 Mulberry Street, Waterloo, IA
50703, Attn: Community Planning and Development Director. The foregoing addresses
may be changed or supplemented by written notice given as above provided. Notice
shall be deemed delivered when given.
9. Run with the Land. This Agreement shall not terminate with the sale or
encumbrance of either the burdened (City Parcel) or the benefited property (ConAgra
Parcel) but shall be perpetual, unless terminated as provided above, and run with the
land and is binding upon, and inure to the benefit of, the successors and assigns of the
parties hereto.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Iowa.
11. Entire Agreement. This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter hereof. This Agreement shall not be
modified except by a written instrument signed by the party against whom enforcement
is sought.
12. Severability. If any provision of this Agreement is found to be invalid or
unenforceable, the remainder of this Agreement shall be unaffected thereby. The
paragraph headings are for convenience and reference only and shall not limit or
otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives effective as of the Effective Date.
City of Waterloo, Iowa
By: �Timothy J. Hurl , ayor
ConAgra Foods Packaged Foods, LLC
Na e: Jam s G. Do
Title: ' resident— Real Estate
Notary Acknowledgements
State of Iowa
County of Black Hawk
This instrument was acknowledged before me on this day of February, 2009 by
Timothy J. Hurley in his capacity as Mayor of the City of Waterloo, Iowa.
�• � - Stamp/Seal
Signature of a-ry Public
-
Title (or nk for Military Personnel)
State of-:owe nt6r'0.-S k0.
County of Bask- awl Q o 5 A,S
r oL
This instrument was acknowledged before me on this 3 day of February, 2009 by
James G. Doyle in his capacity as Vice President— Real Estate for ConAgra Foods
Packaged Foods, LLC.
&. t,r Stamp/Seal
Signature of Notary Public
Title (or Rank fag Military Personnel) GEtJ �No �,�;; B+w�r
MAR!ArERA RofPJebrasiaRS
EfNE
..._ My Comi1 .rp,4;;g.26,2012
Exhibit A
Legal Description of City Parcel
MID PORT AMERICA PARK FLAT NO 1, TRACT A, CITY OF WATERLOO, BLACK
HAWK COUNTY, IOWA.
Exhibit B
Legal Description of ConAgra Parcel
Lot 10, MidPort America Park Plat No. 1, City of Waterloo, Black Hawk County, Iowa.
Exhibit C
Easement Area Description
(see attached)
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BILL OF SALE
KNOW ALL BY THESE PRESENTS that the City of Waterloo, Iowa, a municipal
corporation ("Seller"), for good and valuable consideration which is hereby acknowledged by the
Seller, does hereby sell, assign, grant and convey to ConAgra Foods Packaged Foods, LLC, its
successors and assigns ("Buyer"), to have and hold forever, all right, title and interest of Seller in
and to that portion of the rail track as depicted on Exhibit A,along with all appurtenances thereof,
including without limitation the rail and fastenings, switches, bumpers, ties, ballast, roadbed,
embankment, culverts and any other structures and things necessary for the support of and
entering into the construction of said track(the "Property").
SELLER HEREBY SELLS, TRANSFERS AND ASSIGNS SAID
PROPERTY IN "AS IS" CONDITION. ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE IN
REGARD TO SAID PERSONAL PROPERTY ARE HEREBY EXCLUDED.
THERE ARE NO WARRANTIES OF FITNESS, WHICH EXTEND BEYOND
THE DESCRITPION ON THE FACE HEREOF.
Seller represents and warrants to Buyer that the Property is free and clear of all liens,
charges and encumbrances arising by or through Seller, and that Seller has full right, power and
authority to execute this Bill of Sale and to sell its Property interest on the terms set forth herein.
tIrW, THEREFORE, Seller has caused this Bill of Sale to be executed and delivered on
this ? day of , 2009.
City of Waterloo, Iowa
By — -
Timothy J. H Mayor
Exhibit A
(See attached)
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