Loading...
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 Page 1 of 28 "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 Page 2 of 28 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 Page 3 of 28 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. Page 4 of 28 (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, Page 5 of 28 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. Page 6 of 28 (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 Page 7 of 28 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 Page 8 of 28 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. Page 9 of 28 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. Page 10 of 28 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 Page 11 of 28 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 Page 12 of 28 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. Page 13 of 28 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: Page 14 of 28 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 Page 15 of 28 (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 Page 16 of 28 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 Page 17 of 28 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 Page 18 of 28 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 Page 19 of 28 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 Page 20 of 28 100 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. Page 21 of 28 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] Page 22 of 28 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 Z1 m D D Z z • m DG)y Z A -♦ 0 o X 00 v 0 v O m 0 0 1 r m z 0 1 x Co) rn r z 7J T m m 1 cn m m 0 m m z m w 2 x D C r 0 D O T 0Ei `m73 cpm 1 Z rm Z 00 =0 Z wCn IV Z7 C z D0 m Z m Z mo 1c 0 z 0 0 0 m m D v (/) of mm 0z r 1 z co 0 1 m D 0 �+x rC z r D m 0 mZ 10 m 0 0 m m Z 1 z 0 m Cn 0m O0mm 0z r co mom, z =v wm N Z 0 rm ZA mm z D m 3 m z 1 T c 1 c m 1 00 mO 0D D 0 (n 0 m (n mtn c xx mm 0 N 0 0 O Z 00 D= DZ x• i rn -1 -1 m M X D 2 Z D ca z m v r 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. aaewps3 ETOZ cu m 000"OSZ'TT 0 d r) 0 c N 0 O 0 N vi N (!1 0 suoRnqu4uo0 lel;lul ETOZ suounqu4uop leuol2lppy STOZ suol;nq! 4uo0 lelol SIO 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