HomeMy WebLinkAbout2015-R-11BEFORE THE COMMON COUNCIL
FOR THE CITY OF JEFFERSONVILLE, INDIANA
RESOLUTION NO. 2015-R- 1/
A RESOLUTION APPROVING AND RATIFYING AN AMENDED AND RESTATED INTERLOCAL
AGREEMENT FOR THE DEVELOPMENT AND CONSTRUCTION OF A MULTIMODAL
TRANSPORTATION
CORRIDOR FROM THE JEFFERSONVILLE PORT OF INDIANA THROUGH THE
RIVER RIDGE COMMERCIAL CENTER TO HIGHWAY 62
WHEREAS, the City of Jeffersonville, Indiana (hereafter "The City") by and through its
Department of Redevelopment; the Board of Commissioners of Clark County, Indiana,
the Ports of Indiana, the River Ridge Development Authority, and the State of Indiana by
and through its Department of Transportation, all of whom are collectively referred to
as the "Participating Parties", entered into an Interlocal Cooperative Agreement
("Agreement") executed by the Participating Parties on different dates in December,
2013 and executed by The City on December 30, 2013, to pool resources to construct a
multimodal transportation corridor connecting the Port to the new I-265/OId Salem
Road interchange and traversing from the I-265/OId Salem Road interchange through
the River Ridge Commerce Center ("RRCC") to Highway 62 (alternately the
"Transportation Corridor" or the "Project"); and
WHEREAS, The Common Council of The City authorized the execution of the Agreement
by Resolution No 37 adopted on December 16, 2013; and
WHEREAS, since the time the Agreement was entered into the following circumstances
have changed: (a) the cost estimate for the Project has increased; (b) KIPDA has agreed
to set aside funds for the Project in 2019; (c) the Participating Parties have agreed to
increase their pledged contributions to the Project; (d) the Participating Parties have
agreed that each Segment of the Project will be bid and constructed separately from
one another to allow for completion of a portion of the Project to coincide with the
opening of the East End Ohio River Bridge set for October, 2016; and
WHEREAS, the Participating Parties have negotiated a Restated and Amended Interlocal
Agreement (the "Amended Agreement") to address the changed circumstances as set
forth in the preceding recital and under the Amended Agreement the Participating '
Parties have agreed to increase their monetary contributions to construct the
Transportation Corridor; and
WHEREAS, the Amended Agreement increases The City's contribution to the
Transportation Corridor by an additional $750,000.00 from $2,600,000.00 to
$3,350,000.00; and
WHEREAS, the duration of the Amended Agreement shall remain in full force and effect from
the time it is executed by all Participating Parties until the completion of the Project; and
WHEREAS, the Common Council believes that it is in the best interest of the City to enter into
the Amended Agreement (see attached Exhibit "A");
NOW THEREFORE, IT IS HEREBY RESOLVED that the Common Council of the City of
Jeffersonville does hereby approve and ratify the Amended Agreement to participate in the
construction and planning for a new direct, multimodal transportation corridor including both
road and railing as described in the attached Amended Agreement.
IT I5 FURTHER RESOLVED that the appropriate City officials are authorized to execute the
Amended Agreement.
This Resolution shall be in full force and effect from and after its passage by the Common
Council and approval by the Mayor
VOTED FOR: VOTED AGAINST:
Passed and adopted by the Common Council of the City of Jeffersonville, Clark County,
Indiana on this 3 day of 2015.
L✓
Lisa ill, Council President
Vicki Conlin, City Clerk
Presented by me as City Clerk to the Mayor of said City of Jeffersonville this
Day of , 2015.
This Resolution approved and signed by me this 841/4—day o
Mike Moore, Mayor
2015.
RESTATED AND AMENDED
INTERLOCAL AGREEMENT FOR THE DEVELOPMENT
AND CONSTRUCTION OF A TRANSPORTATION CORRIDOR FROM THE
JEFFERSONVILLE PORT OF INDIANA THROUGH
THE RIVER RIDGE COMMERCE CENTER TO HIGHWAY 62
EDS No. A249 -14 -
THIS RESTATED AND AMENDED INTERLOCAL COOPERATION
AGREEMENT (the "Restated Agreement") is made and entered into pursuant to I.C. 36-1-7 on
the dates shown alongside the signatories of the parties, by and between the following
participants: (a) the Board of Commissioners of Clark County, Indiana (the "County"); (b) the
Jeffersonville Redevelopment Commission, acting for and on behalf of the City of Jeffersonville,
Indiana (the "City"); (c) the Ports of Indiana, a body corporate and politic existing under the
laws of the State of Indiana (the "POI"), which owns, operates, and maintains the Port of
Indiana — Jeffersonville (the "Port") on behalf of the State of Indiana; (d) the River Ridge
Development Authority ("RRDA"); and (e) the State of Indiana by and through its Department
of Transportation ("INDOT"). When referred to collectively, the parties shall be referred to as
the "Parties" or the "Participating Parties".
RECITALS
WHEREAS, the Participating Parties wish to cooperate in order to meet the needs of
each Participating Party to construct and plan for a new direct, multimodal transportation
corridor including both road and railway (the "Transportation Corridor" as described herein)
which among other things: (a) connects the Port to the new I-265/Old Salem Road interchange
(constructed as a part of the East End Ohio River Bridge crossing) at New Middle Road as
shown on Exhibit A (Route B) attached hereto; (b) traverses from the SR 265/Old Salem Road
interchange through the River Ridge Commerce Center ("RRCC") to Highway 62; and (c)
provides right of way for a direct rail connection between the rail facilities of the Port and the
RRCC (the "Project"); and
WHEREAS, the RRCC in combination with the Port of Indiana -Jeffersonville represents
one of the most significant economic development opportunities in the State of Indiana; and
WHEREAS, the Transportation Corridor links the Louisville region's premier public
port facility — Port of Indiana, Jeffersonville — with RRDA's approximate 1,500 acres of prime
industrial land (the "Mega Site"); and
WHEREAS, the Transportation Corridor will provide direct rail and heavy duty road
access to one of the state's and region's most attractive sites for a large scale industrial and
value-added manufacturing investment; and
WHEREAS, the Transportation Corridor's will provide three distinct advantages to the
Participating Parties and the communities and interests they serve: (a) the Project will be built to
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"heavy -haul" specifications which will enable users in both the Port and the RRCC to shuttle
truck load commodities, including but not limited to steel or other bulk commodities, directly
between the sites without having to use other multipurpose public roadways; (b) the Project will
offer a direct rail link between the Port and the RRDA's Mega Site, maximizing the value of
both facilities; and (c) the Project will reduce industrial traffic at the SR 265, State Road 62, and
Port Road interchange, which will continue to see increased commercial and commuter traffic
linked to projected growth at the RRCC and the Port; and
WHEREAS, the rail element of the Transportation Corridor provides direct rail access
between the Port and the Mega Site and offers connectivity to multiple Class I Railroads; and
WHEREAS, the Project represents a unique partnership between the State of Indiana
(Indiana Department of Transportation, Indiana Economic Development Corporation, Ports of
Indiana), the Clark County Commissioners, the city of Jeffersonville Redevelopment Authority,
and the River Ridge Development Authority; and
WHEREAS, the Project can only be completed to meet such need so long as each
Participating Party named herein is willing to contribute funds and provide other services as
agreed to herein; and
WHEREAS, the County has approved the Project and its contribution toward the cost of
the Project, and has authorized execution of this Restated Agreement by action taken by passing
Resolution No. 11-2013 and Resolution No. -2015; and
WHEREAS, the City has approved the Project and its contribution toward the cost of the
Project, and has authorized execution of this Restated Agreement through the City Council's
adoption of Resolution No. 37 on December 16, 2013 and Resolution No. on
; and
WHEREAS, POI has approved the Project and its contribution toward the cost of the
Project, and has authorized execution of this Restated Agreement by action taken by unanimous
vote of its Board of Directors on June 18, 2015 in Amended and Restated Resolution No. 15-01
("POI Resolution"), wherein its Board of Directors explicitly state conditions which are
paramount to POI'S participation and financial and in kind contributions to the Project; and
WHEREAS, 1NDOT has approved the Project and its contribution toward the cost of the
Project, and has undertaken such activities as preliminary engineering, design, and right of way
acquisition, and has initiated the process of obtaining necessary federal funding approvals for the
Project; and
WHEREAS, the RRDA has approved participation in the Project and its contribution
toward the cost of the Project by passage of Resolution No. 31-2013 adopted by its Board of
Directors on June 5, 2013 and amended by Resolution No. 31A-2013 adopted by its Board of
Directors on November 18, 2013 and by adoption of Resolution No. adopted by its
Board of Directors on ; and
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WHEREAS, the Participating Parties believe construction of the Project will: (a)
promote and sustain economic development and growth for Jeffersonville, all communities in
Clark County and the entire region; (b) provide infrastructure needed to attract new commerce
and industry; (c) promote the creation of new jobs and sustain existing jobs; and (d) serve the
best interest of the public; and
WHEREAS, the Participating Parties entered into that certain Interlocal Cooperation
Agreement for the Development and Construction of a Transportation Corridor from the
Jeffersonville Port of Indiana Through the River Ridge Commerce Center to Highway 62 having
a last signature date of February 3, 2014 and identified by State EDS No. A249-14-320648 (the
"ILA"); and
WHEREAS, the Participating Parties desire to amend and restate the ILA in accordance
with the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the foregoing and the covenants contained
herein it is agreed by the parties as follows:
1.1. Recitals Incorporated. The recitals contained above shall be, and are hereby,
incorporated herein by reference as an integral and substantive part of this Restated Agreement.
1.2. Purposes. The purposes of this Restated Agreement are as follows:
A. To identify the respective rights, duties and obligations of the Participating Parties to the
funding, development, control, operation and maintenance of the segments of the Project
and to allow for the implementation of the Project into three Segments as described in
Section 1.3.A.;
B. To develop a quality Project and quality infrastructure sufficient to promote, encourage
and serve the economic development needs of the area;
C. To establish which Participating Party will be responsible for operation and maintenance
of the improved roads and rail for both segments of the Project, and to determine which
Participating Party will be responsible for maintaining all bridges within the Project on its
bridge/road inventory after the Project is completed;
D. To do all things necessary to have the Project roadways functionally classified;
E. To identify which Participating Party will accept certain segments of the Project into its
road inventory and/or rail inventory, thereby incurring all responsibility to maintain and
regulate such segments of the roadway and rail; and
F. To pledge cooperation between and among the Participating Parties that each will deal
with one another honestly, fairly and in good faith to protect and promote the optimal
economic development and job creation benefits of this Restated Agreement and to act in
good faith to grant such consents and approvals as is reasonable and necessary to: (i)
commence construction of the Project as quickly as possible (even if it means
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commencing separate segments of the Project at different times), (ii) agree as to the best,
most advantageous and economically feasible location for the Project and road alignment
of the Project, (iii) to pledge and dedicate the roads included in the segments of the
Project as a public right-of-way as may be required to qualify for and secure federal
funding for the Project, (iv) to implement the Project consistent with the resolutions
passed by each of the Participating Parties; and (v) to take all reasonable actions
necessary to see that the segments of Project are approved by necessary units and
agencies of each Participating Party.
1.3. Manner of Financing, Staffing and Supplying the Joint Undertaking.
A. Project Segments. For purposes of this Restated Agreement, the Project shall be
divided into two road segments and the rail elements of the Transportation Corridor. The
design load standards for the road segments of the Project (Segment A and Segment B
described below) shall include Michigan Truck Train, #5 and #8, design load standard for
(axle) configurations supporting loads of 134,000 lbs.
(i.) Segment A is defined as that portion of the Project and the appurtenances thereto
from POI to the INDOT right-of-way line on the south side of the SR 265/Salem
Road interchange with a termination point at the Port of Indiana, Jeffersonville
and with a tie into New Middle Road shown as Route B on Exhibit A (attached
and herein incorporated by reference).
(ii.) Segment B is defined as that portion of the Project and all appurtenances thereto
beginning at the southern RRCC boundary traversing through the RRCC to the
RRCC boundary along Highway 62 along a route as close as possible to that
shown in Exhibit B (attached and herein incorporated by reference).
(iii.) Segment C is defined as that portion of the Project consisting of that portion of
land to be acquired for a direct railroad connection between the rail facilities of
the Port and the RRCC. As it relates to Segment C, the Participating Parties
acknowledge and agree that the Project will include acquisition of fee simple
interest in all land needed for the railroad connection and other related elements
of the Transportation Corridor including those areas which are not near or
adjacent to the roadway segments of the Project, environmental work (including
required NEPA studies and permits), field engineering work sufficient to
delineate in detail the route of the railroad connection between the Port to the
direct or approximate connection point to the Mega Site inside the boundaries of
RRCC as marked on Exhibit B. Further, the Parties acknowledge and agree that
no work related to the actual construction of the railroad facilities shall be
performed unless excess, eligible funds are available after completion of both
Segment A and Segment C of the Project. The Parties understand that the federal -
aid highway funds to be provided by INDOT and the County under Sections
1.3.B.(i.) and 1.3.B.(v.) of this Restated Agreement are not eligible for any use
related to Segment B and Segment C.
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(iv.) The Parties acknowledge and agree that the Project will be constructed in
Segments with each of the Segments being constructed under separate
construction contracts and environmental documents, when applicable.
(v.) The estimated cost of the Project is $30,400,000.00. The Parties understand and
acknowledge that this figure includes the estimated cost of right-of-way
engineering and land acquisition, utility relocation, design and construction as
described for each segment. $19,900,000.00 of the estimated costs for the Project
shall be allocated to Segments A and C and $10,500,000.00 of the estimated costs
for the Project shall be allocated to Segment B; PROVIDED HOWEVER, that
federal funds shall not be used for Segment B or Segment C.
B. Participating -Party Contributions and Responsibilities. The Participating Parties
pledge to one another to make the following contributions and commitments to the
Project and that the amounts stated as follows shall be and are hereby encumbered or
otherwise allocated for the Project subject to the conditions stated herein:
(i.) County Contributions. The County pledges and encumbers funds in an amount not to
exceed $2,400,000.00 to be used for the preliminary design and engineering of, right-
of-way acquisition for, and construction and development of the Project. The County
shall pay $250,000.00 from local (non-federal) funding sources to INDOT no later
than March 31, 2014. The balance of the County's contribution, or $2,150,000.00,
shall be transferred to INDOT from federal funds made available to the County under
a Road Transfer Agreement (EDS No. A249-12-320838) for use on Segment A. This
transfer shall occur upon full execution of this Restated Agreement. In addition, the
County pledges to maintain any and all bridges constructed as part of the Project
provided that said bridges will be placed into the county's bridge inventory and be
eligible for Cumulative Bridge Fund monies levied by the County.
(ii.) City Contributions.
(1.)The City pledges and encumbers funds in an amount not to exceed
$3,350,000.00 from local, non-federal funding sources to be used for the
preliminary design and engineering of, right-of-way acquisition for, and
construction and development of the Project. The City's funding contribution
shall be paid to INDOT in installments as follows: the Parties acknowledge
that the City's first installment in the amount of $866,666.66 was paid to
INDOT on or before December 31, 2014; the second installment in the
amount of $866,666.66 shall be due no later than December 31, 2015; the
third installment in the amount of $866,666.66 shall be due no later than
December 31, 2016; and the last installment in the amount of $750,000.000
shall be due no later than December 31, 2017.
(2.)The City hereby grants permission to INDOT to enter upon, to construct the
Project, and to take any other action necessary in furtherance of the Project,
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on property owned by or dedicated to the City as public right-of-way,
including that property dedicated and/or transferred to the City from the
RRDA under Section 1.3(B)(iv)(5) of this Restated Agreement.
(3.)After construction is completed in Segment A, the City agrees to operate and
maintain that portion of roadway constructed in Segment A that is situated
outside of the boundaries of POI property as more specifically referenced and
delineated as "City Segment A Transferred Road" in Exhibit C attached
hereto and incorporated herein by reference and in accordance with Section
1.8 of this Restated Agreement. The City may also consider entering into a
local agreement with the County to operate and maintain, all portions of the
Old Salem Road interchange constructed in a previous contract, excluding the
SR 265 overpass (Southernmost abutment to Northernmost abutment), that
would be considered part of the Heavy Haul Corridor.
(iii.) POI Contributions.
(1.)POI has provided, at its expense, a preliminary engineering study by
American Structurepoint, Inc. ("Structurepoint"), which shall be used as a
guide for final design and alignment for Segment A and Segment C of the
Project.
(2.)In addition, and subject to the conditions set forth in the POI Resolution, a
copy of which is attached hereto as Exhibit D and incorporated herein by
reference POI agrees to contribute to the Project by making a one-time lump
sum payment to INDOT in the amount of $2,500,000.00 no later than
December 30, 2015, which amount is intended to apply to Project costs, such
as preliminary design and engineering of, right-of-way and land acquisition
for, and construction and development of the Project. POI'S $2,500,000
contribution is conditioned upon satisfaction of the conditions stated in the
POI Resolution ("POI Conditions") including, but not limited to, the
following: (i) completion of the road connection in Segment A of the Project
as contemplated in Segment A of the Project; and (ii) if the Segment A road is
completed, the road constructed not exceeding the original grade design of up
to five percent (5%); and (iii) acquisition of all land necessary for the direct
rail connection between the Port and RRCC as contemplated in Segment C of
the Project.
(3.)After construction is complete in Segment A, POI agrees to operate and
maintain that portion of road constructed in Segment A that is situated within
the boundaries of POI property as more specifically delineated in Exhibit C
attached hereto ("POI Transferred Road") and in accordance with the terms of
Section 1.8 of this Agreement.
(iv.) RRDA Contributions.
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(1.)The RRDA pledges and encumbers funds for the Project in an amount not to
exceed $7,000,000.00.
(2.) In addition, RRDA has provided at its expense a preliminary engineering
study completed by Jacobi, Toombs & Lanz (JTL) and Bernardin
Lochmueller & Associates (BL&A) which shall be used as a guide for final
design and alignment for Segment B.
(3.)The RRDA has completed construction of 754 linear feet of Segment B
roadway at the location commencing where Logistics Drive and Trey Street
converge as depicted in green and identified as Segment B4 on Exhibit E
attached herewith and made a part hereof. RRDA expended Five Hundred
Thousand Dollars ($500,000.00) to complete construction of Segment B4.
The $500,000.00 cost of construction of Segment B4 shall be credited toward
RRDA's $7,000,000.00 pledge as set forth above.
(4.) In accordance with United Consulting's design and alignment RRDA shall
complete construction of the roadway beginning at the location where the new
SR 265 interchange meets the River Ridge Commerce Center southern
boundary and continuing for approximately 2,938 linear feet in a northwardly
direction as depicted in magenta and identified as Segment B1 in Exhibit E.
RRDA shall commence construction of Segment B1 at such time that it may
be completed on or before the end of October, 2016, barring Force Majeure
delays. Construction of Segment B1 includes construction of the split
roadway and grade separation as shown in Exhibit E. Costs of construction
of Segment B1 will be credited towards RRDA's $7,000,000.00 pledge.
(5.)The remaining portion of the Segment B roadway shall be completed by
RRDA on or before the end of October, 2016 (barring Force Majeure delays),
as follows: RRDA will construct approximately 5,254 linear feet of new
roadway at the location identified as Segment B3 and depicted in red in
Exhibit E. Additionally, RRDA will widen and overlay approximately 3,323
linear feet of existing roadway identified as Segment B2 which is depicted in
yellow in Exhibit E. The costs of Segments B3 and B2 shall be credited
towards RRDA's $7,000,000.00 pledge.
(6.)The total estimated cost of Segments B1, B2 , B3, and B4 portion of the
Project, including preliminary engineering work and construction inspection,
is $10,500,000.00 to be funded as follows: INDOT shall reimburse for
construction and preliminary engineering costs up to, but not to exceed,
$3,500,000.00, less INDOT's expenditures for Segment B preliminary
engineering and construction inspection costs, of non-federal Project funds to
RRDA and RRDA's $7,000,000.00 contribution to the Project shall apply to
all Segment B new construction and improvements (collectively, "Segment B
Allowance"). INDOT will accept reimbursement requests from RRDA in up
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to 4 installments with each request documenting eligible preliminary
engineering and construction expenses. Notwithstanding anything stated
herein to the contrary, the Participating Parties acknowledge and agree that
RRDA shall be responsible to perform and complete all work in Segment B of
the Project and that the Segment B Allowance shall be applied towards the
costs and expenses for work performed in Segment B. The Participating
Parties further acknowledge and agree that Project funds allocated to Segment
B shall not exceed the Segment B Allowance described above and that
RRDA assumes all risks associated with completion of Segment B including,
but not limited to, any costs and expenses that may be necessary to complete
Segment B in excess of the Segment B Allowance.
(7.)If the total of (i) the bid to construct Segments B1 and B3, plus (ii) the bid to
overlay the existing B2 roadway, plus (iii) the $500,000.00 credit for
construction of the existing Segment B4 exceeds the Segment B Allowance,
RRDA in consultation with INDOT may determine the manner in which the
scope of Segment B will be reduced or RRDA may provide additional funding
to complete Segment B as designed. Nothing shall prevent RRDA, at its sole
option and expense, from completing Segment B as originally planned and
designed.
(8.)After construction of Segment B of the Project is complete, RRDA will enter
into an agreement with the City to operate and maintain Segment B delineated
in Exhibit B attached hereto in accordance with the terms of Section 1.8 of
this Restated Agreement.
(9.)Additionally, RRDA shall dedicate the Segment B portion of the roadway to
public use and/or transfer the property needed for construction of Segment B
to the City of Jeffersonville in order to allow the roadway to be functionally
classified as required in Section 1.7 herein.
(v.) INDOT Contributions.
(1.)INDOT shall make available federal -aid highway or State funds in an amount
not to exceed $11,250,000.00 for the Project to apply to the preliminary
design and engineering, development, and construction of Segments A, B and
C of the Project. On April 7, 2014 INDOT applied $2,841,256 for
preliminary engineering and associated project costs to the project. As part of
its $11,250,000 contribution, INDOT will provide, as necessary, funds to
cover the local match funds required in order to fully utilize the federal -aid
highway funds and other federal funds contributed by KIPDA and the County
to the Project which are not otherwise covered by the non-federal fund
contributions made by POI, City, and County.
(2.)INDOT further pledges to give good faith and due consideration to the
preliminary engineering studies of JTL, BL&A and Structurepoint in making
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final decisions about the design criteria and road alignment of Segments A
and B of the Project and the rail elements of the Transportation Corridor.
(3.)INDOT shall hold the funds provided by the Participating Parties in a
dedicated, non -reverting fund established by INDOT for the sole and
exclusive purpose of fulfilling the intent, purpose, and obligations of this
Restated Agreement. This fund shall be managed and accounted for in
accordance with INDOT's usual and ordinary procedures, which include any
applicable requirements imposed by the Federal Highway Administration and
the Indiana Office of Management and Budget. INDOT shall provide the
Participating Parties a full and complete accounting of how the funds are used
in furtherance of the Project on a semiannual basis. Nothing herein shall in
any way limit INDOT's ability to manage funds dedicated to the Project;
however, subject to re -scoping and all other provisions of this Restated
Agreement, INDOT will use its best efforts to manage funds available for the
Project in such a way that eligible funds will be available to purchase the
entire land needed for the rail corridor.
(4.)The contracts for Segment A design, engineering, right-of-way or land
acquisition, and construction shall be let and awarded by INDOT in
accordance with state and federal law, regulations and standards.
(5.)The existing connection of the Old Salem Road improvements to Patrol Road
will be removed and replaced by INDOT as necessary to realign the
constructed connection to the River Ridge Commerce Center to the typical
crowned road section of the Old Salem Road improvements.
(6.) Subject to all other terms of this Restated Agreement, INDOT shall make
every reasonable and good faith effort to complete Segment B
contemporaneously with the completion of Section 6 of the Indiana Approach
to the Ohio River Bridges Project.
C. Refund upon Early Termination. If for any reason the Project is abandoned,
commenced but never completed, or otherwise terminated prematurely, all funds remaining
in the account(s) shall be returned to each Participating Party as reasonably determined by
INDOT; provided, however, that POI shall be entitled to full reimbursement of its
$2,500,000 contribution from INDOT in the event that any of the POI Conditions are not
satisfied. In the event the Project is abandoned, commenced but never completed, or is
otherwise terminated after Project funds have been expended on Segment B, RRDA shall
return the Segment B Allowance to the Project in care of INDOT who will return to
Participating Parties (excluding RRDA) as INDOT reasonably determines. In the event that
RRDA completes Segment B4 prior to any event of early termination, RRDA's obligation to
make Segment B4 functionally classified under Section 1.7 below shall terminate with the
early Project termination or abandonment event.
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D. KIPDA Contribution. The Kentuckiana Regional Planning & Development Agency
("KIPDA") has pledged a contribution of approximately $2,100,000.00 toward the Project to
be available in the year 2019. All such funds contributed by KIPDA shall be used toward
Segment A, and, if available under Section 1.3.G. below, Segment C.
E. Construction Bids in Excess of Pledged Amounts — Segments A and C. If the
total Project costs, including construction bids and all other Project costs of Segment A and
Segment C exceed $19,900,000.00, the amount allocated for Segment A and Segment C of
the Project, Segment A and/or Segment C of the Project may be re -scoped with the input of
the City, the County, POI and INDOT with consideration of state and federal transportation,
infrastructure and economic development interests in mind. However, the final revised
project scope for Segment A and Segment C shall be determined by INDOT; provided, that
any changes or cost saving measures for the Project which result in any of the POI
Conditions not being satisfied, shall require INDOT to reimburse POI for its $2,500,000
financial contribution to the Project.
Notwithstanding anything stated herein to the contrary, the Participating Parties
acknowledge and agree that all risks associated with completion of Segment A and Segment
C including, but not limited to, those associated with the archeological resources identified
within Segment A and Segment C of the Project are shared by INDOT, IEDC, City, County,
POI and RRDA and that, in addition or as an alternative to re -scoping of Segment A or
Segment C as permitted herein, each will continue in good faith to collaborate in order to
determine additional funding to complete Segment A and Segment C.
In the alternative, if the total of the construction bids and all other costs of Segment A and
Segment C exceeds the amount of $19,900,000.00, this Restated Agreement may be amended
or modified so that each Participating Party, at its sole option, may opt to complete a segment
of interest to such Participating Party by paying all the cost overruns (or part of the cost
overruns with other willing Participating Parties) for Segment A or Segment C. No
Participating Party shall prevent any other Participating Party from contributing additional
funds to the Project.
F. Construction Bids Less Than Pledged Amounts. In the event the Project's
construction bids indicate a surplus (i.e. in excess of Project work contemplated in Section
1.3(A) above), any such eligible, non-federal, surplus funds will be applied to further
advance the rail corridor in the following order of ranked priority: land acquisition, sub -grade
design and construction, and design engineering of rail track, rail overpasses, and rail creek
and stream crossings. Any funds contributed for the Project by INDOT or Clark County
cannot be used for this purpose, but other such excess Project funds (if any) may be available
and used for such purposes.
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G. Steering Committee. Each Participating Party shall appoint a representative of its
choice to a steering committee which shall meet as needed to review, discuss, and/or consider
the scope and scale of the Project, selection of consultant(s) and contractor(s), change orders
for the Project, revisions of Project plans, and any and all INDOT decisions which have a
material effect upon the overall Project and/or the separate Segments of the Project. All
steering committee recommendations shall be guided by, but are not limited to, the
preliminary engineering studies prepared by Structurepoint for Segment A and prepared by
JTL and BL&A for Segment B. Each Participating Party may name a different
representative to the steering committee for each steering committee meeting, as each
committee meeting topic may require the input of different experts. Representatives to the
steering committee will deal with one another honestly, fairly and in good faith, so as to
protect and promote the optimal economic development and job creation benefits of the
Project. However, in no event shall any decision or recommendation of the Steering
Committee be construed to obligate INDOT to undertake any action contrary to state or
federal law, regulation or policy.
H. Right of Inspection. Each Participating Party shall have the right to inspect the
Project while under construction upon twenty-four (24) hours advanced notice to the INDOT
contacts listed in Section 2.13 of this Restated Agreement, and to the Contractor selected to
construct the Project. Upon arrival at the Project site, representatives of the Participating
Parties shall check in with appropriate INDOT or Contractor project managers or engineers,
and shall comply with any safety measures or directions given by INDOT personnel or
Contractor staff while on the Project site.
1.4. Term and Termination. This Restated Agreement shall remain in full force and effect
from the time it is fully executed (including approval by the Office of the Attorney General) for
twenty (20) years, unless earlier terminated as provided herein, by judicial decree, or by
operation of law. Except for any provisions herein which survive the completion of the Project,
this Restated Agreement shall be terminated:
A. When the Project is abandoned by INDOT; or
B. Twenty (20) years after completion of the Project; or
C. When the Restated Agreement is deemed terminated by operation of Indiana state statute;
Whichever occurs first.
1.5. Disposing Of Property upon Termination. Except as provided in Section 1.3(C),
Participating Parties acknowledge and agree that ownership of underlying real estate shall not be
transferred as a result of termination.
1.6. Administration of the Project. INDOT shall administer the Project in consultation with
the steering committee during its planning and construction phases and shall coordinate the
Project with the INDOT project at Old Salem Road in Utica (Des. No. 1382057). INDOT shall
administer the Project with due consideration for the design criteria, design requirements, and
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road alignment set out in the preliminary engineering study of Structurepoint with regard to
Segment A and with due consideration for the design criteria, design requirements, and road
alignment set out in the preliminary engineering study of JTL and BL&A with regard to Segment
B. INDOT shall administer and approve all change orders and shall provide the Participating
Parties with copies of same by email, fax or other immediate form of notification. After
consultation with the steering committee, INDOT shall make all final decisions with regard to
the Project.
1.7. Functional Classification. Each Participating Party shall do all things required to make
the Project functionally classified for federal funding, including the dedication of the road right-
of-way to the public.
1.8. Control and Responsibility after Completion of the Project.
A. Segment A. Upon final completion of Segment A of the Project, INDOT shall transfer
and (i) the City shall accept all responsibility for the operation and maintenance of the
road improvements constructed in that portion of Segment A referenced and more
specifically delineated as City Segment A Road on Exhibit C attached hereto; and (ii)
POI shall accept all responsibility for the operation and maintenance of that portion of the
road constructed as part of Segment A as referenced and delineated as POI Transfer Road
on Exhibit C attached hereto. This transfer shall be memorialized in separate written
agreements to be entered into by the City, POI and INDOT prior to commencement of
construction of applicable segment of the Project (collectively, the "Transfer
Agreement"). The Transfer Agreement will not provide for any transfer of funds or other
consideration from INDOT to the City or POI. Upon execution, the Transfer Agreement
shall be recorded in the Office of the Recorder of Clark County. Under the Transfer
Agreement, operation and maintenance responsibilities transferred to the City and to POI
shall include snow removal, mowing, road repair and maintenance of road surfaces,
traffic safety and control, regulation and permitting of curb cuts, billboards, and signage,
and storm water drainage. The POI Transferred Road shall be subject to the rules and
regulations promulgated by POI for the use and operation of port roads and codified at
130 IAC 3-1 et seq., as may be amended from time to time. POI and INDOT further
acknowledge and agree that fee title interest to all real estate underlying the POI
Transferred Road shall remain in the name of the State of Indiana and shall continue to be
subject to the declaration and tariffs encumbering POI property. INDOT, POI, and the
City agree that under all circumstances rules and regulations for City Segment A Road
shall authorize and permit commercial truck traffic consistent with design and load
standards for the Project. Furthermore, in the event the City decides to allow bicycle or
pedestrian traffic along or to connect into the City Segment A Road, the City agrees to
notify POI and provide POI with a reasonable opportunity to review, comment, and
provide recommendations on such plans.
B. Segment B. Upon final completion of Segment B of the Project, INDOT shall transfer
and the City shall accept all responsibility for maintenance, operation and regulation of
the road improvements constructed as part of Segment B of the Project, as shown in
Exhibit B. This transfer shall be memorialized in a separate written agreement to be
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entered into by the City and INDOT no later than completion of construction of Segment
B (the "Transfer Agreement"). The Transfer Agreement will not provide for any transfer
of funds or other consideration from INDOT to the City. Upon execution, the Transfer
Agreement shall be recorded in the Office of the Recorder of Clark County. The City and
the RRDA shall enter into an agreement providing that the RRDA shall assume
responsibility for the maintenance and upkeep of Segment B of the Project, including
snow removal, road repair, road maintenance, installation of traffic signs and signals,
installation of new street lights, maintenance of Project -installed street lights, drainage,
approval of curb cuts, regulation of or prohibitions against billboards, signage standards,
and speed limits within Segment B of the Project.
C. Segment C. Upon final completion of Segment C of the Project, INDOT shall transfer
and POI shall accept title (fee simple interest) by deed in the land acquired for the rail
corridor as part of the Project, which POI shall hold in the name of the State of Indiana
by and through POI, and which POI will operate and maintain in accordance with its
statutory and regulatory authority and consistent with its current railroad facilities at the
Port.
D. Pre -constructed Old Salem Road interchange. Before the commencement of construction
for Segment A, INDOT shall transfer and the City accept all responsibility for
maintenance and operations of all portions of the Old Salem Road interchange
constructed in a previous contract, excluding the SR 265 overpass (Southernmost
abutment to Northernmost abutment). This transfer shall be memorialized in a separate
written agreement to be entered into by the City and INDOT no later than
commencement of construction of Segment A (the "Transfer Agreement").
E. Bridges. Upon final completion of the Project any and all bridges constructed as a part
of the Project shall be listed in the County's bridge/road inventory.
F. Law Enforcement. Jurisdiction over law enforcement and police protection shall be
governed by the laws of the State of Indiana.
1.9. Prerequisites to This Restated Agreement Taking Effect. To the extent required by
Ind. Code §36-1-7-10, §4-13-2-14.1 and §4-13-2-14.3, this Restated Agreement shall have no
effect until the following conditions are met:
(a) It is approved by the fiscal body of each Participating Party that is required to give
approval under Ind. Code §36-1-7-10;
(b) It is recorded with the county recorder;
(c) It is filed with the executive of the City;
(d) It is filed with the auditor of the County;
(e) It is filed with the auditor of the state of Indiana;
(f) All other requirements of Ind. Code §36-1-7 have been met; and
(g) The Restated Agreement is approved by the Office of the Attorney General.
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1.10. Filing with State Board of Accounts. Pursuant to Ind. Code § 36-1-7-6, not later than
sixty (60) days after it takes effect, this Restated Agreement must be filed with the Indiana State
Board of Accounts for audit purposes. The City shall file or ensure that the Restated Agreement
is filed with the State Board of Accounts.
1.11. Permits Issued for the Project. For the sake of clarity and to avoid misunderstandings,
each Participating Party, except for INDOT and POI, which pursuant to law are prohibited from
granting any indemnification, agrees to indemnify, defend and hold the others harmless from all
claims or liability arising in relation to any permits issued by it to perform work on the Project.
Each Participating Party which issues a permit shall be responsible for conducting all inspections
related to permits issued by it.
II. GENERAL PROVISIONS.
2.1. Access to Records. The Participating Parties shall maintain all books, documents, papers,
correspondence, accounting records and other evidence pertaining to the cost incurred under this
Restated Agreement, and shall make such materials available at their respective offices at all
reasonable times during the period of this Restated Agreement and for ten (10) years from the date
of final payment under the terms of this Restated Agreement, for inspection or audit by all other
Participating Parties, or its authorized representative, and copies thereof shall be furnished free of
charge, if requested by all other Participating Parties. The Participating Parties agree that, upon
request by any agency participating in federally -assisted programs with whom the Participating
Parties has agreed to or seeks to agree to, all other Participating Parties may release or make
available to the agency any working papers from an audit performed by all other Participating
Parties of the Participating Parties in connection with this Restated Agreement, including any
books, documents, papers, accounting records and other documentation which support or form the
basis for the audit conclusions and judgments.
2.2. Audit. The Participating Parties acknowledge that each may be required by any other to
submit to an audit of funds paid through this Restated Agreement. Any such audit shall be
conducted in accordance with IC 5-11-1, et. seq. and audit guidelines (including applicable
provisions of the Office of Management and Budget Circulars A-133, Audits of States, Local
Governments, and Non -Profit Organizations) specified by the State and/or in accordance with audit
requirements specified elsewhere in this Restated Agreement.
2.3. Authority to Bind. The signatory for each Participating Party warrants that he/she has the
necessary authority to enter into this Restated Agreement. The signatory for each Participating
Party represents that he/she has been duly authorized to execute this Restated Agreement on behalf
of his/her Participating Party, and has obtained all necessary or applicable approval to make this
Restated Agreement fully binding upon the Participating Parties when his/her signature is affixed
to this Restated Agreement.
2.4. Certification for Federal -Aid Contracts Lobbying Activities. The Participating Party
certifies, by signing and submitting this Restated Agreement, to the best of its knowledge and
belief that it complied with Section 1352, Title 31, U.S. Code, and specifically, that:
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A. No federal appropriated funds have been paid or will be paid, by or on behalf of
the Participating Parties, to any person for influencing or attempting to influence an officer or
employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with the awarding of any federal agreements,
the making of any federal grant, the making of any federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or modification of
any federal agreement, grant, loan, or cooperative agreement.
B. If any funds other than federal appropriated funds have been paid or will be paid to
any person for influencing or attempting to influence an officer or employee of any federal agency,
a Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with such federal agreement, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
2.5. Compliance with Laws.
A. Each Participating Party shall comply with all applicable federal, state and local
laws, rules, regulations and ordinances, and all provisions required thereby to be included herein
are hereby incorporated by reference. The enactment of any state or federal statute, or the
promulgation of regulations there under, after execution of this Restated Agreement shall be
reviewed by the Participating Parties to determine whether formal modifications are required to
the provisions of this Restated Agreement.
B. Each Participating Party and its agents shall abide by all ethical requirements that
apply to persons who have a business relationship with the State, as set forth in Indiana Code §
4-2-6, et seq., Indiana Code § 4-2-7, et. seq., the regulations promulgated there under, and
Executive Order 05-12, dated January 12, 2005. If the Participating Party is not familiar with
these ethical requirements, the Participating Party should refer any questions to the Indiana State
Ethics Commission, or visit the Indiana State Ethics Commission website at
«http://www.in.gov/ethics/»>. If any Participating Party or its agents violate any applicable
ethical standards, any other Participating Party may, at its sole discretion, terminate this Restated
Agreement immediately upon notice to the other Participating Parties. In addition, an offending
Participating Party may be subject to penalties under Indiana Code §§ 4-2-6 and 4-2-7, and under
any other applicable state or federal laws.
C. Each Participating Party certifies by entering into this Restated Agreement, that it
is not presently in arrears in payment of any permit fees or other statutory, regulatory or
judicially required payments to the State of Indiana. Further, each Participating Party agrees that
any payments in arrears and currently due to the State of Indiana may be withheld from
payments due to it. Additionally, further work or payments may be withheld, delayed, or denied
and/or this Restated Agreement suspended until the Participating Party becomes current in its
payments and has submitted proof of such payment to the other Participating Parties.
D. As required by IC 5-22-3-7: (1) Each Participating Party and its principals certify
that (A) except for de minimus and nonsystematic violations, it has not violated the terms of (i)
IC 24-4.7 [Telephone Solicitation Of Consumers], (ii) IC 24-5-12 [Telephone Solicitations] , or
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(iii) IC 24-5-14 [Regulation of Automatic Dialing Machines] in the previous three hundred sixty-
five (365) days, even if IC 24-4.7 is preempted by federal law; and (B) the Participating Party
will not violate the terms of IC 24-4.7 for the duration of this Restated Agreement, even if IC 24-
4.7 is preempted by federal law. (2) Each Participating Party and its principals certify that an
affiliate or principal of the Participating Party and any agent acting on behalf of the Participating
Party or on behalf of an affiliate or principal of the Participating Party (A) except for de minimis
and nonsystematic violations, has not violated the terms of IC 24-4.7 in the previous three
hundred sixty-five (365) days, even if IC 24-4.7 is preempted by federal law; and (B) will not
violate the terms of IC 24-4.7 for the duration of this Restated Agreement, even if IC 24-4.7 is
preempted by federal law.
E. As required by IC §5-22-16.5, the Participating Party certifies that the
Participating Party is not engaged in investment activities in Iran. Providing false certification
may result in the consequences listed in IC §5-22-16.5-14 including termination of this Restated
Agreement, denial of future state contracts, as well as an imposition of a civil penalty.
Each Participating Party affirms that, if it is an entity described in Title 23 of the Indiana
Code, it is properly registered and owes no outstanding reports to the Indiana Secretary of State.
2.6. Drug -Free Workplace Certification. Each Participating Party hereby covenants and
agrees to make a good faith effort to provide and maintain a drug-free workplace, and that it will
give written notice to the other Participating Parties and the Indiana Department of Administration
within ten (10) days after receiving actual notice that an employee of the Participating Party in the
State of Indiana has been convicted of a criminal drug violation occurring in the Participating
Parties' workplace. False certification or violation of the certification may result in sanctions
including, but not limited to, suspension of Restated Agreement payments, termination of the
Restated Agreement and/or debarment of contracting opportunities with the State of Indiana for up
to three (3) years.
In addition to the provisions of the above paragraphs, if the total Restated Agreement
amount set forth in this Restated Agreement is in excess of $25,000.00, each Participating Party
hereby further agrees that this Restated Agreement is expressly subject to the terms, conditions
and representations of the following certification:
This certification is required by Executive Order No. 90-5, April 12, 1990, issued by the
Governor of Indiana. Pursuant to its delegated authority, the Indiana Department of
Administration is requiring the inclusion of this certification in all agreements with and
grants from the State of Indiana in excess of $25,000.00. No award of an agreement shall be
made, and no purchase order or agreement, the total amount of which exceeds $25,000.00,
shall be valid, unless and until this certification has been fully executed by the Participating
Party and made a part of the agreement as part of the executed contract.
The Participating Party certifies and agrees that it will provide a drug-free workplace by:
a. Publishing and providing to all of its employees a statement notifying their
employees that the unlawful manufacture, distribution, dispensing, possession or use of a
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controlled substance is prohibited in the Participating Parties workplace and specifying the
actions that will be taken against employees for violations of such prohibition;
b. Establishing a drug-free awareness program to inform its employees of (1) the
dangers of drug abuse in the workplace; (2) the Participating Parties policy of maintaining a
drug-free workplace; (3) any available drug counseling, rehabilitation, and employee
assistance programs; and (4) the penalties that may be imposed upon an employee for drug
abuse violations occurring in the workplace;
c. Notifying all employees in the statement required by subparagraph (a) above that
as a condition of continued employment the employee will (1) abide by the terms of the
statement; and (2) notify the Participating Party of any criminal drug statute conviction for a
violation occurring in the workplace no later than five (5) days after such conviction;
d. Notifying in writing the State within ten (10) days after receiving notice from an
employee under subdivision (c)(2) above, or otherwise receiving actual notice of such
conviction;
e. Within thirty (30) days after receiving notice under subdivision (c)(2) above of a
conviction, imposing the following sanctions or remedial measures on any employee who is
convicted of drug abuse violations occurring in the workplace: (1) take appropriate personnel
action against the employee, up to and including termination; or (2) require such employee to
satisfactorily participate in a drug abuse assistance or rehabilitation program approved for
such purposes by a federal, state or local health, law enforcement, or other appropriate
agency; and
f. Making a good faith effort to maintain a drug-free workplace through the
implementation of subparagraphs (a) through (e) above.
2.7. Employment Eligibility Verification.
a. The Participating Party affirms under the penalties of perjury that it does not
knowingly employ an unauthorized alien.
b. The Contractor(s) who are awarded contracts for the Project shall be required to
enroll in and verify the work eligibility status of all his/her/its newly hired employees through the
E -Verify program as defined in IC 22-5-1.7-3. The Contractor is not required to participate should
the E -Verify program cease to exist. Additionally, the Contractor is not required to participate if
the Contractor is self-employed and does not employee any employees.
c. Such Contractor(s) may not knowingly employ or contract with an unauthorized
alien and may not retain an employee or contract with a person that the Contractor subsequently
learns is an unauthorized alien.
d. Such Contractor(s) shall be required to require his/her/its subcontractors who
perform work on construction of the Project to certify to the Contractor that the subcontractor does
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not knowingly employ or contract with an unauthorized alien and that the subcontractor has
enrolled and is participating in the E -Verify program. The Contractor(s) will be required to agree to
maintain this certification throughout the duration of the term of a contract with a subcontractor.
e. The Participating Parties may terminate any Contractor contracts for default if the
Contractor fails to cure a breach of these provisions no later than thirty (30) days after being
notified of such breach.
2.8. Force Majeure. In the event either party is unable to perform any of its obligations
under this Restated Agreement or to enjoy any of its benefits because of reasons, events or
causes beyond that party's reasonable control and occurring without its fault or negligence, due
to industry wide strikes or other labor troubles, unusual shortages of labor and materials, war or
other national emergency, delays in transportation, accidents, fire, natural disaster or decrees of
governmental bodies not the fault of the affected party (hereinafter referred to as a Force
Majeure Event), the party who has been so affected shall immediately give notice to the other
party and shall do everything possible to resume performance. Upon receipt of such notice, all
obligations under this Restated Agreement shall be immediately suspended. If the period of
nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event,
the party whose ability to perform has not been so affected may, by giving written notice,
terminate this Restated Agreement.
2.9. Funding Cancellation Clause. In the event the Director of the Indiana Office of
Management and Budget makes a written determination on or before June 30, 2015 that funds
are not appropriated or otherwise available to support continuation of Indiana's performance of
its obligations under this Restated Agreement, this Restated Agreement shall be canceled. A
determination by either Budget Director that funds are not appropriated or otherwise available to
support continuation of performance shall be final and conclusive.
2.10. Governing Law and Mediation. This Restated Agreement shall be construed in
accordance with and governed by the laws of the State of Indiana, and suit, if any, must be brought
in the State of Indiana. Prior to filing any lawsuit, the Parties agree that all disputes shall be
submitted to mediation, which may be mediated by any registered mediator or Indiana Senior
Judge or retired Indiana judge in good standing, as agreed upon by the Participating Parties. In
the event that the Participating Parties are unable to unanimously agree upon a mediator one may
be selected by majority vote of the Participating Parties.
2.11. Non -Discrimination.
A. Pursuant to I.C. 22-9-1-10 and the Civil Rights Act of 1964, the Participating Party, shall
not discriminate against any employee or applicant for employment, to be employed in the
performance of work under this Restated Agreement, with respect to hire, tenure, terms,
conditions or privileges of employment or any matter directly or indirectly related to
employment, because of race, color, religion, sex, disability, national origin, ancestry or status
as a veteran. Breach of this covenant may be regarded as a material breach of this Restated
Agreement. Acceptance of this Restated Agreement also signifies compliance with applicable
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Federal laws, regulations, and executive orders prohibiting discrimination in the provision of
services based on race, color, national origin, age, sex, disability or status as a veteran.
B. The Participating Party understands that INDOT is a recipient of Federal Funds. Pursuant
to that understanding, the Participating Party, agrees that if the Participating Party employs
fifty (50) or more employees and does at least $50,000 worth of business with the State and is
not exempt, the Participating Party will comply with the affirmative action reporting
requirements of 41 CFR 60-1.7. The Participating Party shall comply with Section 202 of
executive order 11246, as amended, 41 CFR 60-250, and 41 CFR 60-741, as amended, which
are incorporated herein by specific reference. Breach of this covenant may be regarded as a
material breach of Contract.
It is the policy of INDOT to assure full compliance with Title VI of the Civil Rights
Act of 1964, the Americans with Disabilities Act and Section 504 of the Vocational
Rehabilitation Act and related statutes and regulations in all programs and activities. Title VI
and related statutes require that no person in the United States shall on the grounds of race,
color or national origin be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance. (INDOT's Title VI enforcement shall include the following additional grounds:
sex, ancestry, age, income status, religion and disability.)
C. During the performance of this Restated Agreement, each Participating Party, for itself,
its assignees and successors in interest (hereinafter referred to as the "Participating Party")
agrees to the following assurances under Title VI of the Civil Rights Act of 1964:
(i.) Compliance with Regulations: The Participating Party shall comply with the
regulations relative to nondiscrimination in Federally -assisted programs of the
Department of Transportation, Title 49 CFR Part 21, as they may be amended
from time to time (hereinafter referred to as the "Regulations"), which are herein
incorporated by reference and made a part of this Restated Agreement.
(ii.) Nondiscrimination: The Participating Party, with regard to the work
performed by it during this Restated Agreement, shall not discriminate on the
grounds of race, color, sex, national origin, religion, disability, ancestry, or status
as a veteran in the selection and retention of subcontractors, including
procurements of materials and leases of equipment. The Participating Party shall
not participate either directly or indirectly in the discrimination prohibited by
section 21.5 of the Regulations, including employment practices when the
Restated Agreement covers a program set forth in Appendix B of the Regulations.
(iii.) Solicitations for Subcontracts, Including Procurements of Materials and
Equipment: In all solicitations either by competitive bidding or negotiation made
by the Participating Party for work to be performed under a subcontract, including
procurements of materials or leases of equipment, each potential subcontractor or
supplier shall be notified by the Participating Party of the Participating Party's
obligations under this Restated Agreement, and the Regulations relative to
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nondiscrimination on the grounds of race, color, sex, national origin, religion,
disability, ancestry, or status as a veteran.
(iv.) Information and Reports: The Participating Party shall provide all
information and reports required by the Regulations, or directives issued pursuant
thereto, and shall permit access to its books, records, accounts, other sources of
information, and its facilities as may be determined by the Indiana Department of
Transportation and Federal Highway Administration to be pertinent to ascertain
compliance with such Regulations, orders and instructions. Where any
information required of a Participating Party is in the exclusive possession of
another who fails or refuses furnish this information, the Participating Party shall
so certify to the Indiana Department of Transportation or the Federal Highway
Administration as appropriate, and shall set forth what efforts it has made to
obtain the information.
(v.) Sanctions for Noncompliance: In the event of the Participating Party's
noncompliance with the nondiscrimination provisions of this Restated Agreement,
the Indiana Department of Transportation shall impose such contract sanctions as
it or the Federal Highway Administration may determine to be appropriate,
including, but not limited to: (a) withholding payments to the Participating Party
under this Restated Agreement until the Participating Party complies, and/or (b)
cancellation, termination or suspension of the Restated Agreement, in whole or in
part.
(vi.) Incorporation of Provisions: INDOT shall include the provisions of
subparagraphs (C)(i) through (C)(vi) of this Section in every contract or
subcontract, including procurements of materials and leases of equipment, unless
exempt by the Regulations, or directives issued pursuant thereto.
The Participating Party shall take such action with respect to any subcontract or procurement
as the Indiana Department of Transportation or the Federal Highway Administration may
direct as a means of enforcing such provisions including sanctions for non-compliance,
provided, however, that in the event the Participating Party becomes involved in, or is
threatened with, litigation with a subcontractor or supplier as a result of such direction, the
Participating Party may request the Indiana Department of Transportation to enter into such
litigation to protect the interests of the Indiana Department of Transportation, and, in
addition, the Participating Party may request the United States of America to enter into such
litigation to protect the interests of the United States of America.
2.12. Notice to Parties. Whenever any notice, statement or other communication is required
under this Restated Agreement, it shall be sent to the following addresses, unless otherwise
specifically advised of a change of address:
A. For INDOT:
Tim Muench, Project Manager
Indiana Department of Transportation
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100 N. Senate Ave., Room N642
Indianapolis, IN 46204
(317)232-5245
tmuenchc indot.in.gov
With Copy to:
Tony McClellan, District Deputy Commissioner
INDOT Seymour District
185 Agrico Lane
Seymour, IN 47274
(812)524-3702
tmcclellan(a,indot.in.gov
B. For RRDA:
Executive Director
River Ridge Development Authority
6200 E. Highway 62, Suite 600
Jeffersonville, Indiana 47130
Jerry(&RiverRidgeCC.com
Fax No.: 812.285.8983
C. For County:
General Counsel
Clark County Government
501 East Court Ave. Room 406
Jeffersonville, IN 47130
Office: (812)-285-6275
Fax: (812)-285-6366
D. For City:
Mayor Mike Moore
500 Quartermaster Court
Jeffersonville, IN 47130
E. For POI:
Scott Stewart
Port of Indiana -Jeffersonville
1402 Port Road
Jeffersonville, IN 47130
Phone: (812) 283-9662
Fax: (812) 282-7505
2.15. Severability. The invalidity of any section, subsection, clause or provision of this Restated
Agreement shall not affect the validity of the remaining sections, subsections, clauses or provisions
of this Restated Agreement.
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2.16. Status of Claims. Each Participating Party shall be responsible for keeping all other
Participating Parties currently advised as to the status of any claims made for damages against it
resulting from services performed under this Restated Agreement.
2.17. General. This Restated Agreement represents the entire understanding between the
Participating Parties relating to the subject matter, and supersedes any and all prior oral and/or
written communications, understandings or agreements relating to the subject matter. Any
amendment or modification to this Restated Agreement must be in writing and be signed by duly
authorized representatives of the Participating Parties. Neither this Restated Agreement nor any
portions of it may be assigned, licensed or otherwise transferred by any Participating Party
without the prior written consent of all other Participating Parties. This Restated Agreement will
be binding upon the Participating Parties and their permitted successors or assigns. Failure of a
Participating Party to enforce any provision of this Restated Agreement will not constitute or be
construed as a waiver of such provision or of the right to enforce such provision.
2.18. Headings. The headings are inserted for convenience only and do not constitute part of
this Restated Agreement.
2.19. Construction. This Restated Agreement shall not be construed more strictly against one
party than against any other party merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that all Participating Parties have contributed
substantially and materially to the preparation of this Restated Agreement.
[Remainder of Page Intentionally Left Blank]
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Non -Collusion and Acceptance
The undersigned attests, subject to the penalties for perjury that he/she is the properly authorized
representative, agent, member or officer of the Participating Party, that he/she has not, nor has any other
member, employee, representative, agent or officer of the Participating Party, directly or indirectly, to the
best of the undersigned's knowledge, entered into or offered to enter into any combination, collusion or
agreement to receive or pay, and that he/she has not received or paid, any sum of money or other
consideration for the execution of this Restated Agreement other than that which appears upon the face of
this Restated Agreement.
In Witness Whereof, the Participating Parties have, through their duly authorized representatives, entered
into this Restated Agreement. The Participating Parties, having read and understood the foregoing terms
of this Restated Agreement, do by their respective signatures dated below hereby agree to the terms
thereof.
GCITY OF JEF E
RSONVIL E
Mike Moore
Mayor
01
President, City Council
STATE OF INDIANA )
)SS:
CITY OF JEFFERSONVILLE )
Before me, a Notary Public in and for said CITY and State personally appeared Mike Moore, Mayor of the City of
Je 1opvil1e, Indiana, ho ackn w edged the executi
day of , 2015
My Commission expires:
My place of Residence is:
of the foregoing Restate
Agreement on this
'VAR '' : LIC (sign. ure
RY PUBLIC (printed)
Page 23 of 28
CLARK COUNTY
BOARD OF COMMISSIONERS
Jack Coffman, President
Rick Stephenson, Vice President
Bryan Glover
Attest:
DATE
STATE OF INDIANA
)SS:
COUNTY OF CLARK )
Before me, a Notary Public in and for said COUNTY and State personally appeared Jack Coffman, Rick
Stephenson, and Bryan Glover of the BOARD OF COMMISSIONERS OF CLARK COUNTY, Indiana, who
acknowledged the execution of the foregoing Restated Agreement on this day of
, 2015.
My Commission expires:
My place of Residence is:
NOTARY PUBLIC (signature)
NOTARY PUBLIC (printed)
Page 24 of 28
RIVER RIDGE DEVELOPMENT AUTHORITY
Jerry G. Acy
Executive Director
STATE OF INDIANA
)SS:
COUNTY OF CLARK )
Before me, a Notary Public in and for said COUNTY and State personally appeared Jerry G. Acy, Executive
Director of the RIVER RIDGE DEVELOPMENT AUTHORITY, who acknowledged the execution of the foregoing
Restated Agreement on this day of , 2015.
NOTARY PUBLIC (signature)
NOTARY PUBLIC (printed)
My Commission expires:
My place of Residence is:
Page 25 of 28
PORTS OF INDIANA
Greg Gibson, Commissioner
ATTEST:
Jay K. Potesta, Secretary - Treasurer
Date
STATE OF INDIANA )
)SS:
CITY OF: )
Before me, a Notary Public in and for said CITY and State personally appeared
of the PORTS OF INDIANA, who acknowledged the execution of the foregoing Restated
Agreement on this day of , 2015.
My Commission expires:
My place of Residence is:
NOTARY PUBLIC (signature)
NOTARY PUBLIC (printed)
Page 26 of 28
STATE OF INDIANA
Department of Transportation
(for)
Karl B. Browning, Commissioner
Date:
STATE OF INDIANA )
)SS:
CITY OF: )
Before me, a Notary Public in and for said CITY and State personally appeared
of the INDIANA DEPARTMENT OF TRANSPORTATION, who acknowledged the execution of
the foregoing Restated Agreement on this day of , 2015.
NOTARY PUBLIC (signature)
NOTARY PUBLIC (printed)
My Commission expires:
My place of Residence is:
Page 27 of 28
APPROVALS
STATE OF INDIANA
State Budget Agency
Brian E. Bailey, Director
Date:
STATE OF INDIANA
Department of Administration
Jessica Robertson, Commissioner
Date:
Approved as to Form and Legality:
Attorney General Gregory F. Zoeller
Date Approved:
(for)
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security
number in this document, unless required by law.
By
This instrument prepared by:
Jennifer L. Jansen Attorney No.
Attorney at Law
Page 28 of 28
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PORTS OF INDIANA COMMISSION
AMENDED AND RESTATED RESOLUTION 15-01
RESOLUTION AUTHORIZING INCREASED CONTRIBUTION
AND OTHER CHANGES TO HEAVY HAUL TRANSPORTATION
CORRIDOR PROJECT WITH STATE AND LOCAL GOVERNMENT STAKEHOLDERS
WHEREAS, the Ports of Indiana ("POI") along with the Indiana Department of
Transportation ("INDOT"), Indiana Economic Development Corporation ("IEDC"), City of
Jeffersonville, Clark County, and the River Ridge Development Authority ("RRDA")
(collectively, "Participating Parties") have been collaborating on the development and
construction of a heavy haul transportation corridor connecting by road and rail the Port of
Indiana — Jeffersonville ("Port") with the River Ridge Commerce Center (including the Mega
Site "RRCC") (collectively, the "Project");
WHEREAS, POI and the Participating Parties entered into an Interlocal Cooperative
Agreement for the Development and Construction of a Transportation Corridor from the
Jeffersonville Port of Indiana through the River Ridge Commerce Center to Highway 62 having
a last signature date of February 3, 2014 and identified by State EDS No. A249-14-320648
("ILA"), which established, among other things, the administration, purpose, need, funding, and
budget for the Project. The original budget for the Project was in the amount of Twenty -Two
Million Five Hundred Thousand Dollars ($22,500,000);
WHEREAS, the RRDA has not agreed to provide the basic assurances for heavy
industrial land use at the Mega Site and railroad operations at RRCC as stated in the
memorandum of understanding previously proposed by POI, but recognizing the benefits the
Project will bring to this region of the State, POI agrees to proceed with its participation in the
Project as stated in this Resolution without having those assurances memorialized in a
memorandum of understanding;
WHEREAS, subsequent to the Participating Parties entering into the ILA, INDOT
identified changed site conditions, specifically significant archeological resources in Segment A
of the Project (defined more specifically below), and other increased costs and expenses for the
Project which require increased funding for the Project;
WHEREAS, INDOT estimates that the Project cannot be completed by the original target
completion date of October, 2016 and proposes that the Project be performed in the following
three (3) segments: (1) Segment B, being that portion from I-265 to and including RRCC; (2)
Segment A, being that portion between I-265 and the Port; and (3) Segment C, being acquisition
of railroad right of way between the Port and RRCC;
WHEREAS, segmenting the Project will allow work in Segment B to be completed by
the original target completion date and avoid anticipated delays resulting from the archeological
resources identified in Segment A;
WHEREAS, INDOT estimates the total budget for the Project to be in the amount of
Thirty -Three Million Four Hundred Thousand Dollars ($33,400,000) ("New Project Budget");
WHEREAS, INDOT and the IEDC have asked the other Participating Parties to consider
design and construction cost saving measures, additional funding alternatives, and to increase
their financial contributions to the Project in order to fund the New Project Budget;
WHEREAS, the Participating Parties are not in agreement with the design and
construction cost savings measures proposed by INDOT which include, among others, increasing
the maximum grade for the heavy haul road from five percent (5%) to eight percent (8%), which
increase in the maximum grade is too steep for heavy haul traffic based on informed and
reasoned opinions of POI and other Participating Party engineers;
WHEREAS, the Participating Parties have pursued additional funding for the Project
from the Kentuckiana Regional Planning & Development Agency ("KIPDA") who is anticipated
to contribute an additional Two Million One Hundred Thousand Dollars ($2,100,000) to the
Project, pending final approval at KIPDA's next Board Meeting scheduled for February 26,
2015;
WHEREAS, INDOT's and the IEDC's contribution to the Project in the amount of
$11,250,000 shall remain the same, but that the other Participating Parties have agreed to
recommend to their respective boards, council, commissioners, and representatives to increase
their financial contributions for the Project in the aggregate amounts as follows: (1) City of
Jeffersonville in the amount of $3,350,000; (2) Clark County in the amount of $2,400,000; (3)
RRDA in the amount of $7,000,000; and (4) P01 in the amount of $2,500,000;
WHEREAS, the City of Jeffersonville also has agreed to assume operation and
maintenance responsibilities for that portion of the heavy haul road to be constructed in Segment
A of the Project ("Segment A Road") which is located outside of the Port's boundaries with PO1
responsible for operation and maintenance of that portion of the Segment A Road located within
the Port's boundaries, subject to final approval from the Redevelopment Commission anticipated
on or about February 25, 2015;
2
WHEREAS, INDOT and the IEDC have set a deadline of February 28, 2015 to secure
agreement on cost savings measures and additional financial commitments from other
Participating Parties and KIPDA sufficient to meet the New Project Budget;
WHEREAS, while the Participating Parties' increased financial contributions are not
sufficient to fund the New Project Budget proposed by INDOT, POI desires to increase its
financial contribution to the Project from $250,000 to the increased aggregate amount of
$2,500,000, to assume operation and maintenance responsibilities for that portion of the Segment
A Road located within the Port, and to continue its collaboration with the Participating Parties to
determine and otherwise exhaust appropriate cost savings measures to reduce the New Project
Budget and/or to determine and otherwise exhaust alternative funding options for the Project
which do not require additional funds from P01;
WHEREAS, once cost savings measures and financial commitments are secured
sufficient to fund the Project, the Participating Parties will need to amend the ILA to incorporate
and reflect changes to the Project as described generally above;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION THAT:
1. Subject to the conditions set forth in section 2 below, the Commission hereby
authorizes POI making a financial contribution in the aggregate amount of Two
Million Five Hundred Thousand Dollars ($2,500,000) for the Project to be paid in
calendar year 2015 as determined by POI's Chief Executive Officer.
2. POI's increased contribution set forth in section 1 above is conditioned upon (a) the
purpose and need for the Project remaining the same as described in the ILA; (b) the
Participating Parties and KIPDA making the financial and other in kind service
contributions for the Project in amounts not less than those described in the whereas
paragraphs above; (c) PO1 and the other Participating Parties reaching an agreement
upon acceptable cost savings measures, which under no circumstances shall include a
road grade in excess of five percent (5%), and/or (d) the Participating Parties finding
alternative funding options for the Project sufficient to fund the New Project Budget
as may be reduced by cost savings measures for the Project agreed upon by the
Participating Parties (including P01).
3. The Conunission also hereby delegates authority to and appoints Vice Chairman,
Greg Gibson, to serve as "Designated Commissioner" to work with staff to approve
appropriate cost savings measures for the Project and/or determine funding
alternatives for the Project, and to take all further action which is necessary and
appropriate to amend the ILA to reflect such changes to the Project, including
execution and delivery of the final form of the instrument amending the ILA.
4. Vice Chairman's appointment as "Designated Commissioner" shall be consistent with
Commission's prior Resolution 14-06. Commission staff will inform and update the
Commission at its next meeting as to any final action taken and/or agreement
executed by the Vice Chairman as "Designated Commissioner" appointed herein.
5. This Resolution does hereby amend, modify and supersede all prior action taken by
the Commission in regards to the Project, including action taken at Commission
meetings conducted on June 20, 2013, August 15, 2013, and October 24, 2013;
6. This Resolution shall be in full force and effect immediately upon its passage.
Adopted by the Ports of Indiana Commission. meeting in Jeffersonville, Indiana, on this 18th day
of June, 2015.
ATTESTED BY:
Gregory L Gibson, Vice Chairman
4
Ken Kaczmarek. C man
*If bids exceed the total contribution amount then the project will be scaled back.
-Revised agreement -Port, River Ridge, City and County maintain road.
-Original agreement -Port and River Ridge maintain the road.
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Revised ILA of Transportation Corridor
BEFORE THE JEFFERSONVINLLE REDEVELOPMENT COMMISSION
STATE OF INDIANA
RESOLUTION NO. 2015-R-7
A RESOLUTION APPROVING AND RATIFYING
(RESTATED AND AMENDED) INTERLOCAL AGREEMENT FOR THE
DEVELOPMENT AND CONSTRUCTION
OF A TRANSPORTATION CORRIDOR FROM THE
JEFFERSONVILLE PORT OF INDIANA THROUGH THE RIVER RIDGE
COMMERCE CENTER TO HIGHWAY 62
WHEREAS, the Jeffersonville Redevelopment Commission (hereinafter "the
Commission") by and through its Department of Redevelopment; the City of
Jeffersonville (hereinafter "the City"); the Board of Commissioners of Clark County,
Indiana (hereinafter "the County"); the Ports of Indiana (hereinafter "POP'); the River
Ridge Development Authority (hereinafter "RRDA") and the State of Indiana by and
through its Department of Transportation (hereinafter "INDOT") hereby enter into the
attached Agreement (see attached Exhibit "A"); and
WHEREAS, the duration of this Agreement shall remain in full force and effect
from the time it is executed by all parties until the completion of the project as described
in attached Agreement; and
WHEREAS, the purpose of this Agreement is to allow for the cooperation of
each party to meet the needs of each Participating Party to construct and plan for a new
direct, multimodal transportation corridor including both road and railway (the
"Transportation Corridor") as described in the Agreement; and
WHEREAS, the Commission believes that it is in the best interest of the City to
enter into this Interlocal Agreement; and
WHEREAS, the Commission has been established in accordance with the
provisions of I.C. 36-7-14 (as amended), and has previously established the Vogt Valve
Allocation Area (hereinafter "Vogt Valve TIF District"), the Galvstar Allocation Area
(hereinafter "Galvstar TIF District"), the Keystone Allocation Area (hereinafter
"Keystone TIF District"), and the Beth Nova Allocation Area (hereinafter "Beth Nova
TIF District"); and
WHEREAS, the Commission now finds the development and construction of the
Transportation Corridor constitutes an expenditure for public improvement that will
clearly serve or benefit the Vogt Valve TIF District, the Galvstar TIF District, the
Keystone TIF District and the Beth Nova TIF District; and
WHEREAS, the Commission accordingly adopts this Resolution to declare its
findings and further authorize the Department of Redevelopment to enter into this
Interlocal Agreement for purposes of developing and constructing the Transportation
Corridor with funds from the Vogt Valve TIF District, the Galvstar TIF District, the
Keystone TIF District and the Beth Nova TIF District pursuant to the provisions of I.C.
36-7-14-39 (as amended) and as more particularly described herein.
NOW THEREFORE, IT IS HEREBY RESOLVED that the Commission as
follows:
1. Interlocal Agreement Approved. The Interlocal Agreement is hereby
approved and ratified authorizing the Department of Redevelopment to participate in the
development and construction of the Transportation Corridor.
2. Findings and Declaration with respect to the Transportation Corridor.
This Commission hereby finds and declares that the development and construction of the
Transportation Corridor constitutes a local public improvement that will directly serve or
benefit the interests of the Vogt Valve TIF District, the Galvstar TIF District, the
Keystone TIF District and the Beth Nova TIF District.
3. Authorization of Funding. This Commission further authorizes the
Department of Redevelopment to fund the Commission's share for the development and
construction of the Transportation Corridor from funds received and maintained for the
Vogt Valve TIF District, the Galvstar TIF District, the Keystone TIF District and the
Beth Nova TIF District as authorized by the provisions of I.C. 36-7-14-39 (as amended).
This Resolution shall be in full force and effect from and after its passage by the
Commission.
So Resolved this 29th day of July, 2015, by the Jeffersonville Redevelopment
Commission, at tis regularly scheduled meeting and noticed meeting.
Derek Spence, Secretary
R. Monty S g, Pre