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HomeMy Public PortalAbout062-2016 - Law - Infrastructure Improvement - HeartlandFINAL INFRASTRUCTURE IMPROVEMENT AGREEMENT This Infrastructure Improvement Agreement (this "Agreement") has been made and entered into as of the 27th day of May, 2016 (the "Effective Date"), by and among HEARTLAND PET FOOD MANUFACTURING INDIANA, LLC, a limited liability company duly organized and validly existing under the laws of the State of Delaware (the "Company"), the CITY OF RICHMOND, INDIANA, a municipal corporation duly organized and validly existing under the laws of the State of Indiana (the "City"), the COUNTY OF WAYNE, INDIANA a county duly organized and validly existing under the laws of the State of Indiana (the "County"), and the ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY, INDIANA, a non-profit corporation duly organized and validly existing under the laws of the State of Indiana (the "EDC"). RECITALS WHEREAS, in order to induce the Company to construct and operate a new manufacturing facility in the Midwest Industrial Park, Wayne County, Indiana (the "Facility", as further defined below), the City, the County and the EDC have agreed to cause to be constructed the infrastructure improvements described on Exhibit A attached hereto, all as more particularly set forth in this Agreement; and WHEREAS, the City, the County and the EDC find that the construction and operation of the Facility will lead to the creation of additional employment opportunities in the City and the County, and the furtherance of private investment therein, and will benefit the health, safety, morals, and general welfare of the citizens of the City, the County and the State of Indiana. NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants, agreements and conditions set forth herein and for other good and valuable consideration, the Company, the City, the County and the EDC hereby covenant and agree as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings indicated below unless a different meaning is specifically provided or the context otherwise requires: "Agreement" shall mean this Infrastructure Improvement Agreement, together with all exhibits hereto, as the same may be amended or modified from time to time in accordance with the terms hereof. Contract No. 62-2016 "Applicable Law" shall mean all present and future laws, ordinances, codes, orders, rules, regulations and requirements of all federal, state and local governments, courts departments, commissions, boards and officers, to the extent that any of the foregoing are applicable to the Project. "City" shall mean the City of Richmond, Indiana. "Construction Documents" shall mean the final working construction drawings and specifications describing the size, character, design, construction standards, materials, structural components, mechanical/electrical/piping and other utility systems and components of the Infrastructure Improvements, as approved by the Parties in accordance with the terms of this Agreement. Change Orders approved in accordance with this Agreement shall be considered Construction Documents. "County" shall mean the County of Wayne, Indiana. "EDC" shall mean the Economic Development Corporation of Wayne County, Indiana. "Effective Date" shall mean the date set forth in the first paragraph hereof. "Facility" shall mean the new manufacturing facility to be designed, constructed and operated by the Company at the Site. "Force Majeure Event" shall mean the occurrence of any of the following: acts of God; insurrections; wars or war -like action (whether actual or threatened); multi -site or regional strikes; earthquakes, fires, hurricanes, storms, floods or other severe weather; riot, sabotage, terrorism or threats of sabotage or terrorism; or other cause that is not within the reasonable control of the Party claiming the right to delay performance on account of such occurrence. Notwithstanding the foregoing, "Force Majeure Event" shall not include an inability to pay debts or other monetary obligations in a timely manner. "Governmental Authority" shall mean any and all jurisdictions, entities, courts, boards, agencies, commissions, authorities, offices, divisions, subdivisions, departments or bodies of any nature whatsoever and any and all governmental units (federal, state, county, municipal or otherwise). "Infrastructure Improvements" shall mean the Road Improvements and the Railroad Spur. "Lead Contracting Party" shall mean, the City with respect to the Railroad Spur, and the County with respect to the Road Improvements (unless, with respect to the Road Improvements, the County and the City agree that the City shall be lead contracting party, in which case, the Company and the EDC shall be so notified in writing). "Outside Completion Dates" shall mean the dates set forth on Exhibit B by which the Infrastructure Improvements are to be Substantially Completed. "Parties" shall mean the Company, the City, the County and the EDC. 2 "Permits" shall mean all permits, consents, approvals, authorizations, variances, waivers, certificates and approvals from all Governmental Authorities, utility companies and any other Person that are required for the design and construction of the Infrastructure Improvements. "Person" shall mean any natural person, firm, partnership, association, corporation, limited liability company, trust, entity, public body, authority, governmental unit or other entity, as applicable. "Project" shall mean the planning, design, engineering and construction of the Infrastructure Improvements. "Project Costs" shall mean all costs and expenses paid or incurred in connection with the planning, design, engineering and construction of the Infrastructure Improvements. "Railroad Spur" shall mean the to -be -constructed industrial track described on Exhibit A attached hereto. "Road Improvements" shall mean the upgrades to Gaar-Jackson Road and Round Barn Road described on Exhibit A attached hereto. "Site" shall mean the approximately 89.8-acre area of land in the Midwest Industrial Park, Wayne County, Indiana, where the Facility is to be constructed. "Substantial Completion" or "Substantially Completed" shall mean the substantial completion of the Infrastructure Improvements in accordance with the Construction Documents so that they may be legally used and operated for their respective intended purposes and that, at a minimum, all applicable Permits required for such use and operation have been obtained from the applicable Governmental Authorities. "Work" shall mean the furnishing of all materials, labor, equipment, supplies, tools, transportation, temporary construction, superintendence, demolition, and all other services, facilities and items, necessary for the full and proper performance and completion of the Infrastructure Improvements as set forth in the Construction Documents and such items as are reasonably inferable therefrom. 1.2 Context. As the context of this Agreement may require, terms in the singular shall include the plural (and vice versa) and the use of feminine, masculine or neuter genders shall include each other. Wherever the word "including" or any variation thereof is used herein, it shall mean "including, without limitation," and shall be construed as a term of illustration, not a term of limitation. Wherever the word "or" is used herein, it shall mean "and/or". 1.3 Incorporation by Reference. All exhibits, schedules or other attachments referenced in this Agreement are hereby incorporated into this Agreement by such reference and shall be considered a part of this Agreement as if fully rewritten or set forth herein. 1.4 Calculation of Time. Unless otherwise stated, all references to "day" or "days" shall mean calendar days. Wherever any period of time is specified herein for the taking of any 3 action or the giving of any notice, the period shall be computed by excluding the day upon which the period is specified to commence and including the last day of the period specified. ARTICLE 2 RELATIONSHIP OF PARTIES AND COOPERATION 2.1 Cooperation. The Parties shall cooperate with each other, and shall cause their respective contractors, subcontractors, consultants and agents to cooperate with each other, at all times so as to effect an efficient and timely completion of the Project consistent with the Outside Completion Dates and any other milestone dates referred to in Exhibit B. The Parties shall use diligent, good faith efforts to resolve expeditiously any disputes that may arise among their respective representatives, consultants and agents during the planning, design and construction of the Infrastructure Improvements in a manner that allows the planning, design and construction to proceed expeditiously in order to achieve Substantial Completion on or before the Outside Completion Dates. 2.1.1 The Parties acknowledge that a portion of the Road Improvements (approximately one-half (1/2� mile) lies within the corporate limits of the Town of Centerville, Indiana ("Centerville"). The County shall be responsible for the Projects Costs relating to the Road Improvements that lie within Centerville. The Parties acknowledge that the construction of the Road Improvements will require Centerville's consent for the portion within Centerville corporate limits. The City, the County and the EDC shall use their best efforts to obtain such consent so as not to delay timely completion of the Road Improvements. 2.2 Representatives. Each Party shall designate an authorized representative with respect to the Project who will act as such Party's liaison and contact person in administering and implementing the terms of this Agreement. Any Party may change or replace its representative upon prior written notice to the other Parties. 2.3 Allocation of Proiect Costs. The City shall be responsible for (a) the Project Costs incurred in connection with the Railroad Spur, and (b) its portion of the Project Costs incurred in connection with Road Improvements as set forth in Exhibit A. The County shall be responsible for its portion of the Project Costs incurred in connection with Road Improvements as set forth in Exhibit A. The City and the County shall timely cause to be paid all Project Costs in accordance with the allocation set forth in Exhibit A. The Company shall have no responsibility for the Project Costs. ARTICLE 3 DESIGN AND CONSTRUCTION OF THE INFRASTRUCTURE IMPROVEMENTS 3.1 General . The Lead Contracting Party shall contract for the design, engineering and construction of its applicable Infrastructure Improvement. The Lead Contracting Party shall select principal architects or engineers and prime construction contractors that are reputable firms experienced in the services for which they were selected. The Company, the City and the County shall each have the right to approve the principal architects/engineers and prime 4 construction contractors selected by the Lead Contracting Party, which approval shall not be unreasonably withheld or delayed. Any disapproval shall be in writing and shall specify the reasons why the proposed firm is not qualified to perform the services for which they were selected. 3.2 Design. The Lead Contracting Party shall cause its applicable Infrastructure Improvement to be designed and engineered so as to comply with the Applicable Laws that apply to the design and construction of the Infrastructure Improvements. The Lead Contracting Party shall solicit and give due consideration for the incorporation of the Company's requirements regarding the anticipated heavy truck usage and railcar capacity needs of the Facility in the design of the Infrastructure Improvements. The City shall cause the Railroad Spur to be designed and engineered in accordance with the requirements of Norfolk Southern Railway and the Company. The City and EDC shall work cooperatively with Norfolk Southern Railway and the Company to determine the best location and other critical characteristics to be incorporated into the design taking into consideration the railcar capacity needs for the Facility. 3.3 Design Meetings and Document Approvals. The Lead Contracting Party shall provide all Parties reasonable prior notice of all design and planning meetings regarding the Infrastructure Improvements. Each Party shall be permitted to attend any such meetings, and each Party shall be simultaneously copied on the meeting minutes. The City, County and Company shall meet and confer in an attempt to reach agreement and approval by all Parties on the final Construction Documents for the Road Improvements. The Company shall have the right to approve the final Construction Documents for the Railroad Spur. Within thirty (30) days after receipt of the relevant Construction Documents, the receiving Party shall notify the Lead Contracting Party in writing of its approval, disapproval or approval with exceptions of such Construction Documents. Any such disapproval or approval with exceptions shall be in writing and shall specify the reasons for such disapproval or exceptions to approval. Within fifteen (15) days after receipt of a Party's disapproval or exceptions to approval of the relevant Construction Documents, the Lead Contracting Party shall either cause the architect/engineer to modify the relevant Construction Documents to address the disapproval or exceptions to approval or, within said fifteen (15) days the Lead Contracting Party shall meet with the Party submitting its disapproval or exceptions to approval and confer in an attempt to reach an agreed resolution of the issues forming the basis of the disapprovals or exceptions to approval. Absent such agreed resolution, the authority for final approval of the Construction Documents for the Road Improvement shall rest with the Lead Contracting Party; provided, however, that such final approval shall not relieve the Lead Contracting Party from its contractual responsibility of achieving substantial compliance with the specifications for the Road Improvements set forth on Exhibit A, paragraph A, attached hereto, with respect to the finished Road Improvement. The authority for final approval of the Construction Documents for the Railroad Spur shall rest with the Company. 3.3.1 The Lead Contracting Party shall obtain all Permits and approvals required for the design or construction of its applicable Infrastructure Improvement 3.4 Construction. The Lead Contracting Party shall cause the applicable construction contractor to construct the Infrastructure Improvements in a good and workmanlike manner and in accordance with Applicable Laws and the Construction Documents. 5 3.4.1 Each Party shall be given reasonable notice of, and shall be invited to participate in, the owner -contractor construction meetings, and each shall be copied on the meeting minutes. 3.5 Warranty Work. The Lead Contracting Party shall cause the applicable construction contractor to correct any Work that is defective or otherwise not in accordance with the Construction Documents or this Agreement. 3.6 Insurance Requirements. To the extent that any Work takes place at the Site, the Lead Contracting Party shall require construction contractor to purchase and maintain the following insurance policies: (a) workers' compensation insurance meeting the statutory requirements of the State of Indiana and employers' liability insurance coverage with limits of $1,000,000 each accident and $1,000,000 disease (policy limits and each employee); and (b) commercial general liability ("CGL") insurance coverage for third party bodily injury or property damage claims arising out of services performed by the contractor with minimum limits of liability of $1,000,000 per occurrence, $2,000,000 general aggregate. The Company, the City and the County shall be included as an additional insureds with respect to the CGL coverage. Prior to entry onto the Site, each contractor shall furnish to the Company, the City and the County certificates of insurance for the insurance policies required above. The insurance policies (a) shall provide that coverage shall not be cancelled until the insurance carrier(s) provide at least fifteen (15) days' prior written notice to the Company, the City and the County of such cancellation; and (b) shall be obtained from financially sound insurance companies rated not less than A;X by A.M. Best & Company (or any equivalent rating agency) and authorized to do business in the State of Indiana. 3.7 Change Orders. Without the prior written approval of the other Parties (as applicable), the Lead Contracting Party shall not execute any Change Order unless: (a) the Change Order does not delay Substantial Completion date beyond the Outside Completion Date (as the same may be extended due to a Force Majeure Event per Section 6.1 hereof); and (b) the Change Order does not eliminate a materially important element from the Project, as determined by the other Parties (as applicable) in their reasonable discretion. Any objections shall be provided in writing to the Lead Contracting Party with an explanation in reasonable detail of the basis of such objection. The Lead Contracting Party shall modify and resubmit the proposed Change Order to address such reasonable objections. ARTICLE 4 REPRESENTATIONS 4.1 Representations and Warranties. Each Party represents and warrants to the other Parties as follows: (a) it has the necessary power and authority to enter into and deliver this Agreement and to consummate the transactions contemplated herein, and this Agreement constitutes the valid and binding obligation of the representing Party in accordance with its terms; and (b) there is no litigation pending or, to its knowledge, threatened in writing against or by the representing Party, wherein an unfavorable ruling or decision is reasonably likely to material adversely affect such Party's ability to carry out its obligations under this Agreement. 2 ARTICLE 5 DEFAULTS AND REMEDIES 5.1 Default. Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by a Party hereto, or any successor to such Party, such Party or successor shall, upon written notice from the other, proceed promptly to cure or remedy such default or breach. In case such remedial action is not taken or not diligently pursued within thirty (30) days of such written notice, the Party asserting default or breach may institute such proceedings at law or in equity, or in the case of a claim against the City or the County, an action in mandamus, as may be necessary or desirable in its opinion to remedy such default or breach. 5.2 Non -Exclusive Remedies. No right, remedy or power conferred upon or reserved to either Party under this Agreement is intended to be exclusive of any other available right, remedy or power, but each right, remedy and power shall be cumulative and concurrent and shall be in addition to every other right, remedy and power available under this Agreement or existing at law, in equity or by statute or otherwise now or hereafter. No exercise, beginning of the exercise, or partial exercise by a Party of any one or more rights, remedies or powers shall preclude the simultaneous or later exercise by that Party of any or all other rights, remedies or powers. No delay or omission in the exercise of any right, remedy or power accruing upon any event of default hereunder shall impair that or any other right, remedy or power or shall be construed to constitute a waiver of any event of default hereunder, but any right, remedy or power may be exercised from time to time and as often as may be deemed to be expedient ARTICLE 6 MISCELLANEOUS 6.1 Force Majeure Event. Notwithstanding anything to the contrary set forth herein, if a Party shall be delayed or hindered in, or prevented from, the performance of any covenant or obligation hereunder, as a result of any Force Majeure Event, and, provided that the Party delayed, hindered or prevented from performing notifies the other Parties both of the commencement and of the expiration of such delay, hindrance or prevention (each notice being required within fourteen (14) days of when such Party knew or should have known, using commercially reasonable diligence, of the respective event), then the performance of such covenant or obligation shall be excused for the period of such delay, hindrance or prevention and the period for the performance of such covenant or obligation shall be extended by the number of days equivalent to the number of days of the impact of such delay, hindrance or prevention. The delayed Party shall use best efforts to mitigate the adverse effect and duration of the Force Majeure Event and to perform all of their other obligations hereunder that are not affected by the Force Majeure Event. 6.2 Governing Law. It is the intention of the Parties that this Agreement and the rights and obligations of the Parties shall be governed by and construed and enforced in accordance with, the laws of the State of Indiana 7 6.3 Modification/Amendment. None of the provisions hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the Party against which the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. 6.4 Consent in Writing. Unless otherwise specifically provided herein, no consent or approval by the a Party permitted or required under the terms of this Agreement shall be valid unless the same shall be in writing, signed by the Party by or on whose behalf such consent is given. 6.5 Severability. If any one or more of the provisions hereof shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. To the extent an interpretation of a section, provision or a portion thereof can be made that will make it valid or enforceable, the Parties agree that the interpretation making it valid or enforceable should be chosen. 6.6 Time is of the Essence. Time is of the essence in the performance of each and every term, condition and covenant contained in this Agreement. 6.7 Ca tions. All Section headings and other titles and captions herein are for convenience only, do not form a substantive part of this Agreement and shall not restrict or enlarge any substantive provisions hereof or thereof. 6.8 Assignment, Agreement Binding on the Parties. This Agreement may not be assigned by any Party hereto without the prior written consent of the each of the Parties hereto. Subject to the foregoing, the terms of this Agreement shall be binding upon, inure to the benefit of and be enforceable solely by the Parties and their permitted successors and assigns. 6.9 Notices. Any notice or communication between the parties required or permitted to be given under this Agreement shall be deemed sufficiently given if delivered personally, if mailed by U.S. registered or certified mail or if by Federal Express or other overnight courier service, and addressed as follows: If delivered to the Company: Heartland Pet Food Manufacturing Indiana, LLC Attn: Dan Comiskey, VP Capital and Supply Chain Finance 11 River Road Wilton, CT 06897 Email: dcomiskey((&bluebuff.com With a copy to: Heartland Pet Food Manufacturing Indiana, LLC Attn: General Counsel 1 I River Road Wilton, CT 06897 Email: legal Abl uebuff.com If delivered to the City: David M. Snow, Mayor City of Richmond, Indiana 50 North 5th Street Richmond, IN 47374 With a copy to: Walter S. Chidester Richmond City Attorney Boston Bever Klinge Cross & Chidester 27 North 8th Street Richmond, IN 47374 If delivered to the County: Wayne County Commissioners Wayne County Administration Bldg. 401 East Main Street Richmond, IN 47374 Attention: Ms. Beth Fields, Administrative Assistant With a copy to: Ronald L. Cross Wayne County Attorney Boston Bever Klinge Cross & Chidester 27 North 8th Street Richmond, IN 47374 If delivered to the EDC: Economic Development Corporation of Wayne County, Indiana 500 South A St., Suite 2 Richmond, IN 47374 Attention: Valerie Shaffer, President z With a copy to: George M. Sowers Attorney for the Economic Development Corporation of Wayne County, Indiana Knoll, Kolger, Sowers & Metzger 111 South 7th Street, Suite A Richmond, IN 47374 Any notices and other communications to be delivered by a Party to the other Parties pursuant to this Agreement shall be in writing and shall be deemed delivered as follows: (a) when hand delivered; (b) two (2) days after mailing by Federal Express or other overnight courier service; or (c) four days (4) days after deposit in the United States mail by registered or certified mail, postage prepaid, return receipt requested, addressed to the party to be charged with notice at the above -recited address or such other address as either party from time to time may designate by notice delivered to the other; provided, however, that no notice of change of address shall be deemed given until received by the party to be notified. 6.10 Further Assurances. Subject to the express terms and conditions of this Agreement, each Party shall take such actions and provide to the other such assurances as may be reasonably requested to consummate the transactions contemplated hereby, including providing such further documents or instruments reasonably requested by the other Party as may be reasonably necessary to effect the purpose of this Agreement and carry out its provisions. 6.11 Counterparts and Electronic Signature. This Agreement may be signed in several counterparts, each of which shall be an original but all of which shall constitute but one and the same instrument. Signatures to this Agreement, any amendment hereof and any notice given hereunder, executed and transmitted electronically in PDF format shall be valid and effective to bind the Party so signing. 6.12 Entire Agreement. This Agreement embodies and constitutes the entire understanding between the Parties with respect to the transactions contemplated herein, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, by and between any of the Parties with respect to the transactions contemplated herein are superseded and merged into this document, and shall be null, void and of no further force and effect from and after the Effective Date. 6.13 This Agreement. The words "herein," "hereof," "hereunder," "hereby," "this Agreement" and other similar references shall be construed to mean and include this Agreement and all amendments hereof and supplements hereto unless the context clearly indicates or requires otherwise. 6.14 Term of Agreement. The term of this Agreement shall end, and this Agreement shall terminate, upon the Parties' performance of all of their respective obligations required herein. 10 [Signature pages follow] IN WITNESS WHEREOF, the Parties have each caused their duly authorized representatives to execute this Agreement as of the date aforesaid. Company: HEARTLAND PET FOOD MANUFACTURING INDIANA, LL By: Name: W. C Ig'.tz L � Title: �,gtfo� Alt_ [Signature pages continuedi 12 IN WITNESS WHEREOF, the Parties have each caused their duly authorized representatives to execute this Agreement as of the date aforesaid. City: CITY OF RICHMOND IANA By: Nam . � ► ! 5 ry av,) Title: 111AI b R [Signature pages continued) 13 IN WITNESS WHEREOF, the Parties have each caused their duly authorized representatives to execute this Agreement as of the date aforesaid. County: WAYNE MO NTY, INDIANA By its Boarcj/f County Commissioners rJIT, M. Attested by: obert oddington, Wayne County Auditor [Signature pages continued] 14 IN WITNESS WHEREOF, the Parties have each caused their duly authorized representatives to execute this Agreement as of the date aforesaid. EDC: ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY, INDIANA OF WAYNE By: Name: j LItx Title: [End of signature pages] 15 EXHIBIT A Description of Infrastructure Improvements A. Road Improvements. Road Improvements to Gaar-Jackson Road from Round Barn Road to Centerville Road, a distance of approximately two (2) miles, will be completed to provide the Company additional heavy truck traffic access to Interstate 70, exit 145, going east and west in Centerville. Road Improvements to Round Barn Road from Gaar-Jackson Road to Industries Road, a distance of approximately'/4 mile, will be completed to provide the Company additional heavy truck access to Interstate 70, exit 149, in Richmond. The Road Improvements will include widening of the road to minimum 12 ft. paved travel lanes and re -paving to support heavy truck traffic, as well as all necessary design, permitting, existing utility relocations, paved shoulders, utilities, earthwork, surface drainage features, acceleration/deceleration/turn lanes, and right-of- way/easements acquisition. Approximately one-half (%z) mile of the Road Improvements to Gaar-Jackson Road are located within the City of Richmond, approximately one and one-half (1'/z) miles of the Road Improvements to Gaar Jackson Road are located outside the City of Richmond, and all of the Road Improvements for Round Barn Road are located within the City of Richmond. Based upon the review by Patriot Engineering as to the structural needs of the proposed Road Improvements, the County agrees that the improved and finished Road Improvements will have structural criteria set forth in the American Association of State Highway and Transportation Officials' (AASHTO) Guide for Design and Pavement of Structures, 1993 edition, and that the Road Improvements will have a Design Structural Number (SN) of 3.50 to 4.00. The Road Improvements will also satisfy applicable provisions of the Indiana Department of Transportation Design Manual for roadways that support heavy truck traffic. The Project Costs for the Road Improvement shall be shared fifty percent (50%) to the City and fifty percent (50%) to the County. B. Railroad Spur. Connection to the existing Norfolk Southern Railway track by construction of a new industrial track to the northwestern property line of the Facility, which will include a lead track and a runaround track. The location, length and railcar capacity of the new industrial lead track and runaround track shall be agreed to by the City, the Company and Norfolk Southern Railway based on the Company's transportation requirements for the product to be manufactured and shipped to and/or from the Facility. A-1 EXHIBIT B Schedule Infrastructure Improvement Outside Completion Date Road Improvements November 1, 2018* Railroad Spur Exact date to be decided based on the Company's completion schedule for, and operational needs of, the Facility. The Company will give written notice to the City to commence the planning and design process for the Railroad Spur. Such notice shall be given no later than March 31, 2021, or three (3) years after the date that plant operations commence at the Facility, whichever date is later. Within three (3) months after receipt of the Company's notice, the City will commence the planning and design process for the Railroad Spur per Article 3 of the Agreement, and will cause the Railroad Spur to be Substantially Completed within eighteen (18) moths after receipt of the Company's notice. * The County will work with its design engineer to develop two sets of bid documents for alternative bidding by the roadway contractors for the Road Improvements. The base option would be to bid the work for the entire Road Improvements in a single phase project. The alternate bid option would be to bid the Road Improvements as a two -phased project with the first phase to include the improvement of that approximately one-half (%2) mile section of the roadways that are located within the territorial boundaries of the City of Richmond (including the required improvements to both Gaar-Jackson Road and to Round Barn Road that are so located). The second phase would then include the approximately one and one-half (1'/2) mile stretch of Gaar-Jackson Road westerly to the intersection of Centerville Road. In the event that the lowest acceptable bid for the two-phase alternate of the project allows the entire Road Improvements to come in at a total cost that does not exceed the budgeted $4.0 million that has been approved by the City and the County as the funding entities of the project, then it is agreed that the County will award the contract(s) to the lowest responsive and responsible bidder(s) for the two-phase project alternate. M. In the event that the lowest acceptable bid for the two-phase project alternate results in total project costs that would exceed the budgeted $4.0 million, then County will award the contract to the lowest responsive and responsible bidder for the single phase project alternate unless the Company agrees to be responsible for the difference in the two-phase project costs in excess of the $4.0 million budgeted amount. In such case, County agrees to confer with the Company to determine the best alternative of the two-phase Road Improvements and to award the construction contract(s) accordingly. The County will confer with the Company and use County's best efforts to complete the Road Improvements in the timeliest manner that can be accomplished according to the finally selected project design and specifications. County will confer with the Company before selection of a final construction alternate and contract award. Regardless of the phase alternate by which the Road Improvements are contracted, County will assure Company access to the Facility along the western section of Gaar-Jackson Road leading to the Centerville Road intersection during all periods of construction of the Road Improvements. The entire Road Improvements project shall be substantially completed by November 1, 2018; provided, however, the County will work with the contractor(s) awarded the contract(s) for the project to complete the Road Improvements in the shortest feasible timeframe without compromising the project budget or the quality standards to which the Road Improvements are to be constructed according to the attached Exhibit A. paragraph A. FINAL INFRASTRUCTURE IMPROVEMENT AGREEMENT This Infrastructure Improvement Agreement (this "Agreement") has been made and entered into as of the 27th day of May, 2016 (the "Effective Date"), by and among HEARTLAND PET FOOD MANUFACTURING INDIANA, LLC, a limited liability company duly organized and validly existing under the laws of the State of Delaware (the "Company"), the CITY OF RICHMOND, INDIANA, a municipal corporation duly organized and validly existing under the laws of the State of Indiana (the "City"), the COUNTY OF WAYNE, INDIANA a county duly organized and validly existing under the laws of the State of Indiana (the "County"), and the ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY, INDIANA, a non-profit corporation duly organized and validly existing under the laws of the State of Indiana (the "EDC"). RECITALS WHEREAS, in order to induce the Company to construct and operate a new manufacturing facility in the Midwest Industrial Park, Wayne County, Indiana (the "Facility", as further defined below), the City, the County and the EDC have agreed to cause to be constructed the infrastructure improvements described on Exhibit A attached hereto, all as more particularly set forth in this Agreement; and WHEREAS, the City, the County and the EDC find that the construction and operation of the Facility will lead to the creation of additional employment opportunities in the City and the County, and the furtherance of private investment therein, and will benefit the health, safety, morals, and general welfare of the citizens of the City, the County and the State of Indiana. NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants, agreements and conditions set forth herein and for other good and valuable consideration, the Company, the City, the County and the EDC hereby covenant and agree as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings indicated below unless a different meaning is specifically provided or the context otherwise requires: "Agreement" shall mean this Infrastructure Improvement Agreement, together with all exhibits hereto, as the same may be amended or modified from time to time in accordance with the terms hereof. commissions, boards and officers, to the extent that any of the foregoing are applicable to the Proj ect. "City" shall mean the City of Richmond, Indiana. "Construction Documents" shall mean the final working construction drawings and specifications describing the size, character, design, construction standards, materials, structural components, mechanical/electrical/piping and other utility systems and components of the Infrastructure Improvements, as approved by the Parties in accordance with the terms of this Agreement. Change Orders approved in accordance with this Agreement shall be considered Construction Documents. "County" shall mean the County of Wayne, Indiana. "EDC" shall mean the Economic Development Corporation of Wayne County, Indiana. "Effective Date" shall mean the date set forth in the first paragraph hereof. "Facility" shall mean the new manufacturing facility to be designed, constructed and operated by the Company at the Site. "Force Majeure Event" shall mean the occurrence of any of the following: acts of God; insurrections; wars or war -like action (whether actual or threatened); multi -site or regional strikes; earthquakes, fires, hurricanes, storms, floods or other severe weather; riot, sabotage, terrorism or threats of sabotage or terrorism; or other cause that is not within the reasonable control of the Party claiming the right to delay performance on account of such occurrence. Notwithstanding the foregoing, "Force Majeure Event" shall not include an inability to pay debts or other monetary obligations in a timely manner. "Governmental Authority" shall mean any and all jurisdictions, entities, courts, boards, agencies, commissions, authorities, offices, divisions, subdivisions, departments or bodies of any nature whatsoever and any and all governmental units (federal, state, county, municipal or otherwise). "Infrastructure Improvements" shall mean the Road Improvements and the Railroad Spur. "Lead Contracting Party" shall mean, the City with respect to the Railroad Spur, and the County with respect to the Road Improvements (unless, with respect to the Road Improvements, the County and the City agree that the City shall be lead contracting party, in which case, the Company and the EDC shall be so notified in writing). "Outside Completion Dates" shall mean the dates set forth on Exhibit B by which the Infrastructure Improvements are to be Substantially Completed. "Parties" shall mean the Company, the City, the County and the EDC. 11 present and future laws, ordinances, codes, orders, rules, Prat date anti Inral vnvPmmPntc vnnrtc AanartmPntc "Permits" shall mean all permits, consents, approvals, authorizations, variances, waivers, certificates and approvals from all Governmental Authorities, utility companies and any other Person that are required for the design and construction of the Infrastructure Improvements. "Person" shall mean any natural person, firm, partnership, association, corporation, limited liability company, trust, entity, public body, authority, governmental unit or other entity, as applicable. "Project" shall mean the planning, design, engineering and construction of the Infrastructure Improvements. "Project Costs" shall mean all costs and expenses paid or incurred in connection with the planning, design, engineering and construction of the Infrastructure Improvements. "Railroad Spur" shall mean the to -be -constructed industrial track described on Exhibit A attached hereto. "Road Improvements" shall mean the upgrades to Gaar-Jackson Road and Round Barn Road described on Exhibit A attached hereto. "Site" shall mean the approximately 89.8-acre area of land in the Midwest Industrial Park, Wayne County, Indiana, where the Facility is to be constructed. "Substantial Completion" or "Substantially Completed" shall mean the substantial completion of the Infrastructure Improvements in accordance with the Construction Documents so that they may be legally used and operated for their respective intended purposes and that, at a minimum, all applicable Permits required for such use and operation have been obtained from the applicable Governmental Authorities. "Work" shall mean the furnishing of all materials, labor, equipment, supplies, tools, transportation, temporary construction, superintendence, demolition, and all other services, facilities and items, necessary for the full and proper performance and completion of the Infrastructure Improvements as set forth in the Construction Documents and such items as are reasonably inferable therefrom. 1.2 Context. As the context of this Agreement may require, terms in the singular shall include the plural (and vice versa) and the use of feminine, masculine or neuter genders shall include each other. Wherever the word "including" or any variation thereof is used herein, it shall mean "including, without limitation," and shall be construed as a term of illustration, not a term of limitation. Wherever the word "or" is used herein, it shall mean "and/or". 1.3 Incorporation by Reference. All exhibits, schedules or other attachments referenced in this Agreement are hereby incorporated into this Agreement by such reference and shall be considered a part of this Agreement as if fully rewritten or set forth herein. 1.4 Calculation of Time. Unless otherwise stated, all references to "day" or "days" shall mean calendar days. Wherever any period of time is specified herein for the taking of any 3 action or the giving of any notice, the period shall be computed by excluding the day upon which the period is specified to commence and including the last day of the period specified. ARTICLE 2 RELATIONSHIP OF PARTIES AND COOPERATION 2.1 Cooperation. The Parties shall cooperate with each other, and shall cause their respective contractors, subcontractors, consultants and agents to cooperate with each other, at all times so as to effect an efficient and timely completion of the Project consistent with the Outside Completion Dates and any other milestone dates referred to in Exhibit B. The Parties shall use diligent, good faith efforts to resolve expeditiously any disputes that may arise among their respective representatives, consultants and agents during the planning, design and construction of the Infrastructure Improvements in a manner that allows the planning, design and construction to proceed expeditiously in order to achieve Substantial Completion on or before the Outside Completion Dates. 2.1.1 The Parties acknowledge that a portion of the Road Improvements (approximately one-half (1/2n mile) lies within the corporate limits of the Town of Centerville, Indiana ("Centerville"). The County shall be responsible for the Projects Costs relating to the Road Improvements that lie within Centerville. The Parties acknowledge that the construction of the Road Improvements will require Centerville's consent for the portion within Centerville corporate limits. The City, the County and the EDC shall use their best efforts to obtain such consent so as not to delay timely completion of the Road Improvements. 2.2 Representatives. Each Party shall designate an authorized representative with respect to the Project who will act as such Party's liaison and contact person in administering and implementing the terms of this Agreement. Any Party may change or replace its representative upon prior written notice to the other Parties. 2.3 Allocation of Project Costs. The City shall be responsible for (a) the Project Costs incurred in connection with the Railroad Spur, and (b) its portion of the Project Costs incurred in connection with Road Improvements as set forth in Exhibit A. The County shall be responsible for its portion of the Project Costs incurred in connection with Road Improvements as set forth in Exhibit A. The City and the County shall timely cause to be paid all Project Costs in accordance with the allocation set forth in Exhibit A. The Company shall have no responsibility for the Project Costs. ARTICLE 3 DESIGN AND CONSTRUCTION OF THE INFRASTRUCTURE IMPROVEMENTS 3.1 General . The Lead Contracting Party shall contract for the design, engineering and construction of its applicable Infrastructure Improvement. The Lead Contracting Party shall select principal architects or engineers and prime construction contractors that are reputable firms experienced in the services for which they were selected. The Company, the City and the County shall each have the right to approve the principal architects/engineers and prime rd construction contractors selected by the Lead Contracting Party, which approval shall not be unreasonably withheld or delayed. Any disapproval shall be in writing and shall specify the reasons why the proposed firm is not qualified to perform the services for which they were selected. 3.2 Design. The Lead Contracting Party shall cause its applicable Infrastructure Improvement to be designed and engineered so as to comply with the Applicable Laws that apply to the design and construction of the Infrastructure Improvements. The Lead Contracting Party shall solicit and give due consideration for the incorporation of the Company's requirements regarding the anticipated heavy truck usage and railcar capacity needs of the Facility in the design of the Infrastructure Improvements. The City shall cause the Railroad Spur to be designed and engineered in accordance with the requirements of Norfolk Southern Railway and the Company. The City and EDC shall work cooperatively with Norfolk Southern Railway and the Company to determine the best location and other critical characteristics to be incorporated into the design taking into consideration the railcar capacity needs for the Facility. 3.3 Design Meetings and Document Approvals. The Lead Contracting Party shall provide all Parties reasonable prior notice of all design and planning meetings regarding the Infrastructure Improvements. Each Party shall be permitted to attend any such meetings, and each Party shall be simultaneously copied on the meeting minutes. The City, County and Company shall meet and confer in an attempt to reach agreement and approval by all Parties on the final Construction Documents for the Road Improvements. The Company shall have the right to approve the final Construction Documents for the Railroad Spur. Within thirty (30) days after receipt of the relevant Construction Documents, the receiving Party shall notify the Lead Contracting Party in writing of its approval, disapproval or approval with exceptions of such Construction Documents. Any such disapproval or approval with exceptions shall be in writing and shall specify the reasons for such disapproval or exceptions to approval. Within fifteen (15) days after receipt of a Parry's disapproval or exceptions to approval of the relevant Construction Documents, the Lead Contracting Party shall either cause the architect/engineer to modify the relevant Construction Documents to address the disapproval or exceptions to approval or, within said fifteen (15) days the Lead Contracting Party shall meet with the Party submitting its disapproval or exceptions to approval and confer in an attempt to reach an agreed resolution of the issues forming the basis of the disapprovals or exceptions to approval. Absent such agreed resolution, the authority for final approval of the Construction Documents for the Road Improvement shall rest with the Lead Contracting Party; provided, however, that such final approval shall not relieve the Lead Contracting Party from its contractual responsibility of achieving substantial compliance with the specifications for the Road Improvements set forth on Exhibit A, paragraph A, attached hereto, with respect to the finished Road Improvement. The authority for final approval of the Construction Documents for the Railroad Spur shall rest with the Company. 3.3.1 The Lead Contracting Party shall obtain all Permits and approvals required for the design or construction of its applicable Infrastructure Improvement 3.4 Construction. The Lead Contracting Party shall cause the applicable construction contractor to construct the Infrastructure Improvements in a good and workmanlike manner and in accordance with Applicable Laws and the Construction Documents. 3.4.1 Each Party shall be given reasonable notice of, and shall be invited to participate in, the owner -contractor construction meetings, and each shall be copied on the meeting minutes. 3.5 Warranty Work. The Lead Contracting Party shall cause the applicable construction contractor to correct any Work that is defective or otherwise not in accordance with the Construction Documents or this Agreement. 3.6 Insurance Requirements. To the extent that any Work takes place at the Site, the Lead Contracting Party shall require construction contractor to purchase and maintain the following insurance policies: (a) workers' compensation insurance meeting the statutory requirements of the State of Indiana and employers' liability insurance coverage with limits of $1,000,000 each accident and $1,000,000 disease (policy limits and each employee); and (b) commercial general liability ("CGL") insurance coverage for third party bodily injury or property damage claims arising out of services performed by the contractor with minimum limits of liability of $1,000,000 per occurrence, $2,000,000 general aggregate. The Company, the City and the County shall be included as an additional insureds with respect to the CGL coverage. Prior to entry onto the Site, each contractor shall furnish to the Company, the City and the County certificates of insurance for the insurance policies required above. The insurance policies (a) shall provide that coverage shall not be cancelled until the insurance carrier(s) provide at least fifteen (15) days' prior written notice to the Company, the City and the County of such cancellation; and (b) shall be obtained from financially sound insurance companies rated not less than A;X by A.M. Best & Company (or any equivalent rating agency) and authorized to do business in the State of Indiana. 3.7 Change Orders. Without the prior written approval of the other Parties (as applicable), the Lead Contracting Party shall not execute any Change Order unless: (a) the Change Order does not delay Substantial Completion date beyond the Outside Completion Date (as the same may be extended due to a Force Majeure Event per Section 6.1 hereof); and (b) the Change Order does not eliminate a materially important element from the Project, as determined by the other Parties (as applicable) in their reasonable discretion. Any objections shall be provided in writing to the Lead Contracting Party with an explanation in reasonable detail of the basis of such objection. The Lead Contracting Party shall modify and resubmit the proposed Change Order to address such reasonable objections. ARTICLE 4 REPRESENTATIONS 4.1 Representations and Warranties. Each Party represents and warrants to the other Parties as follows: (a) it has the necessary power and authority to enter into and deliver this Agreement and to consummate the transactions contemplated herein, and this Agreement constitutes the valid and binding obligation of the representing Party in accordance with its terms; and (b) there is no litigation pending or, to its knowledge, threatened in writing against or by the representing Party, wherein an unfavorable ruling or decision is reasonably likely to material adversely affect such Party's ability to carry out its obligations under this Agreement. rol ARTICLE 5 DEFAULTS AND REMEDIES 5.1 Default. Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by a Party hereto, or any successor to such Party, such Party or successor shall, upon written notice from the other, proceed promptly to cure or remedy such default or breach. In case such remedial action is not taken or not diligently pursued within thirty (30) days of such written notice, the Party asserting default or breach may institute such proceedings at law or in equity, or in the case of a claim against the City or the County, an action in mandamus, as may be necessary or desirable in its opinion to remedy such default or breach. 5.2 Non -Exclusive Remedies. No right, remedy or power conferred upon or reserved to either Party under this Agreement is intended to be exclusive of any other available right, remedy or power, but each right, remedy and power shall be cumulative and concurrent and shall be in addition to every other right, remedy and power available under this Agreement or existing at law, in equity or by statute or otherwise now or hereafter. No exercise, beginning of the exercise, or partial exercise by a Party of any one or more rights, remedies or powers shall preclude the simultaneous or later exercise by that Party of any or all other rights, remedies or powers. No delay or omission in the exercise of any right, remedy or power accruing upon any event of default hereunder shall impair that or any other right, remedy or power or shall be construed to constitute a waiver of any event of default hereunder, but any right, remedy or power may be exercised from time to time and as often as may be deemed to be expedient ARTICLE 6 MISCELLANEOUS 6.1 Force Majeure Event. Notwithstanding anything to the contrary set forth herein, if a Party shall be delayed or hindered in, or prevented from, the performance of any covenant or obligation hereunder, as a result of any Force Majeure Event, and, provided that the Party delayed, hindered or prevented from performing notifies the other Parties both of the commencement and of the expiration of such delay, hindrance or prevention (each notice being required within fourteen (14) days of when such Party knew or should have known, using commercially reasonable diligence, of the respective event), then the performance of such covenant or obligation shall be excused for the period of such delay, hindrance or prevention and the period for the performance of such covenant or obligation shall be extended by the number of days equivalent to the number of days of the impact of such delay, hindrance or prevention. The delayed Party shall use best efforts to mitigate the adverse effect and duration of the Force Majeure Event and to perform all of their other obligations hereunder that are not affected by the Force Majeure Event. 6.2 Governing Law. It is the intention of the Parties that this Agreement and the rights and obligations of the Parties shall be governed by and construed and enforced in accordance with, the laws of the State of Indiana 6.3 Modification/Amendment. None of the provisions hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the Party against which the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. 6.4 Consent in Writing. Unless otherwise specifically provided herein, no consent or approval by the a Party permitted or required under the terms of this Agreement shall be valid unless the same shall be in writing, signed by the Party by or on whose behalf such consent is given. 6.5 Severability. If any one or more of the provisions hereof shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. To the extent an interpretation of a section, provision or a portion thereof can be made that will make it valid or enforceable, the Parties agree that the interpretation making it valid or enforceable should be chosen. 6.6 Time is of the Essence. Time is of the essence in the performance of each and every term, condition and covenant contained in this Agreement. 6.7 Captions. All Section headings and other titles and captions herein are for convenience only, do not form a substantive part of this Agreement and shall not restrict or enlarge any substantive provisions hereof or thereof. 6.8 Assignment; Agreement Binding on the Parties. This Agreement may not be assigned by any Party hereto without the prior written consent of the each of the Parties hereto. Subject to the foregoing, the terms of this Agreement shall be binding upon, inure to the benefit of and be enforceable solely by the Parties and their permitted successors and assigns. 6.9 Notices. Any notice or communication between the parties required or permitted to be given under this Agreement shall be deemed sufficiently given if delivered personally, if mailed by U.S. registered or certified mail or if by Federal Express or other overnight courier service, and addressed as follows: If delivered to the Company: Heartland Pet Food Manufacturing Indiana, LLC Attn: Dan Comiskey, VP Capital and Supply Chain Finance 11 River Road Wilton, CT 06897 Email: dcomiskey_(a�bluebuff.com With a copy to: 8 Heartland Pet Food Manufacturing Indiana, LLC Attn: General Counsel 11 River Road Wilton, CT 06897 Email: legalAbluebuff.com If delivered to the City: David M. Snow, Mayor City of Richmond, Indiana 50 North 5th Street Richmond, IN 47374 With a copy to: Walter S. Chidester Richmond City Attorney Boston Bever Klinge Cross & Chidester 27 North 8th Street Richmond, IN 47374 If delivered to the County: Wayne County Commissioners Wayne County Administration Bldg. 401 East Main Street Richmond, IN 47374 Attention: Ms. Beth Fields, Administrative Assistant With a copy to: Ronald L. Cross Wayne County Attorney Boston Bever Klinge Cross & Chidester 27 North 8th Street Richmond, IN 47374 If delivered to the EDC: Economic Development Corporation of Wayne County, Indiana 500 South A St., Suite 2 Richmond, IN 47374 Attention: Valerie Shaffer, President z With a copy to: George M. Sowers Attorney for the Economic Development Corporation of Wayne County, Indiana Knoll, Kolger, Sowers & Metzger I I I South 7th Street, Suite A Richmond, IN 47374 Any notices and other communications to be delivered by a Party to the other Parties pursuant to this Agreement shall be in writing and shall be deemed delivered as follows: (a) when hand delivered; (b) two (2) days after mailing by Federal Express or other overnight courier service; or (c) four days (4) days after deposit in the United States mail by registered or certified mail, postage prepaid, return receipt requested, addressed to the party to be charged with notice at the above -recited address or such other address as either party from time to time may designate by notice delivered to the other; provided, however, that no notice of change of address shall be deemed given until received by the party to be notified. 6.10 Further Assurances. Subject to the express terms and conditions of this Agreement, each Party shall take such actions and provide to the other such assurances as may be reasonably requested to consummate the transactions contemplated hereby, including providing such further documents or instruments reasonably requested by the other Party as may be reasonably necessary to effect the purpose of this Agreement and carry out its provisions. 6.11 Counterparts and Electronic Signature. This Agreement may be signed in several counterparts, each of which shall be an original but all of which shall constitute but one and the same instrument. Signatures to this Agreement, any amendment hereof and any notice given hereunder, executed and transmitted electronically in PDF format shall be valid and effective to bind the Party so signing. 6.12 Entire Agreement. This Agreement embodies and constitutes the entire understanding between the Parties with respect to the transactions contemplated herein, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, by and between any of the Parties with respect to the transactions contemplated herein are superseded and merged into this document, and shall be null, void and of no further force and effect from and after the Effective Date. 6.13 This Agreement. The words "herein," "hereof," "hereunder," "hereby," "this Agreement" and other similar references shall be construed to mean and include this Agreement and all amendments hereof and supplements hereto unless the context clearly indicates or requires otherwise. 6.14 Term of Agreement. The term of this Agreement shall end, and this Agreement shall terminate, upon the Parties' performance of all of their respective obligations required herein. 10 [Signature pages follow] IN WITNESS WHEREOF, the Parties have each caused their duly authorized representatives to execute this Agreement as of the date aforesaid. Company: HEARTLAND PET FOOD MANUFACTURING INDIANA, LL By: ?A�/Ape- Name: Cxj,V2L Title: [Signature pages continued] 12 IN WITNESS WHEREOF, the Parties have each caused their duly authorized representatives to execute this Agreement as of the date aforesaid. City: CITY OF RICHMOND IANA By: --- Nam . d s 71 S iv av✓ Title: 111AI d K [Signature pages continued] 13 IN WITNESS WHEREOF, the Parties have each caused their duly authorized representatives to execute this Agreement as of the date aforesaid. County: WAYNE CO 4TY, INDIANA By its Boar of County Commissioners And Attested by: obert oddington, Wayne County Auditor [Signature pages continued] 14 IN WITNESS WHEREOF, the Parties have each caused their duly authorized representatives to execute this Agreement as of the date aforesaid. EDC: ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY, INDIANA OF WAYNE By: / ? Name: Title: ie!'; ; [End of signature pages] 15 EXHIBIT A Description of Infrastructure Improvements A. Road Improvements. Road Improvements to Gaar-Jackson Road from Round Barn Road to Centerville Road, a distance of approximately two (2) miles, will be completed to provide the Company additional heavy truck traffic access to Interstate 70, exit 145, going east and west in Centerville. Road Improvements to Round Barn Road from Gaar-Jackson Road to Industries Road, a distance of approximately'/4 mile, will be completed to provide the Company additional heavy truck access to Interstate 70, exit 149, in Richmond. The Road Improvements will include widening of the road to minimum 12 ft. paved travel lanes and re -paving to support heavy truck traffic, as well as all necessary design, permitting, existing utility relocations, paved shoulders, utilities, earthwork, surface drainage features, acceleration/deceleration/turn lanes, and right-of- way/easements acquisition. Approximately one-half ('/2) mile of the Road Improvements to Gaar-Jackson Road are located within the City of Richmond, approximately one and one-half (1'/2) miles of the Road Improvements to Gaar Jackson Road are located outside the City of Richmond, and all of the Road Improvements for Round Barn Road are located within the City of Richmond. Based upon the review by Patriot Engineering as to the structural needs of the proposed Road Improvements, the County agrees that the improved and finished Road Improvements will have structural criteria set forth in the American Association of State Highway and Transportation Officials' (AASHTO) Guide for Design and Pavement of Structures, 1993 edition, and that the Road Improvements will have a Design Structural Number (SN) of 3.50 to 4.00. The Road Improvements will also satisfy applicable provisions of the Indiana Department of Transportation Design Manual for roadways that support heavy truck traffic. The Project Costs for the Road Improvement shall be shared fifty percent (50%) to the City and fifty percent (50%) to the County. B. Railroad Spur. Connection to the existing Norfolk Southern Railway track by construction of a new industrial track to the northwestern property line of the Facility, which will include a lead track and a runaround track. The location, length and railcar capacity of the new industrial lead track and runaround track shall be agreed to by the City, the Company and Norfolk Southern Railway based on the Company's transportation requirements for the product to be manufactured and shipped to and/or from the Facility. A-1 EXHIBIT B Schedule Infrastructure Improvement Outside Completion Date Road Improvements November 1, 2018* Railroad Spur Exact date to be decided based on the Company's completion schedule for, and operational needs of, the Facility. The Company will give written notice to the City to commence the planning and design process for the Railroad Spur. Such notice shall be given no later than March 31, 2021, or three (3) years after the date that plant operations commence at the Facility, whichever date is later. Within three (3) months after receipt of the Company's notice, the City will commence the planning and design process for the Railroad Spur per Article 3 of the Agreement, and will cause the Railroad Spur to be Substantially Completed within eighteen (18) moths after receipt of the Company's notice. * The County will work with its design engineer to develop two sets of bid documents for alternative bidding by the roadway contractors for the Road Improvements. The base option would be to bid the work for the entire Road Improvements in a single phase project. The alternate bid option would be to bid the Road Improvements as a two -phased project with the first phase to include the improvement of that approximately one-half ('/s) mile section of the roadways that are located within the territorial boundaries of the City of Richmond (including the required improvements to both Gaar-Jackson Road and to Round Barn Road that are so located). The second phase would then include the approximately one and one-half (1'/2) mile stretch of Gaar-Jackson Road westerly to the intersection of Centerville Road. In the event that the lowest acceptable bid for the two-phase alternate of the project allows the entire Road Improvements to come in at a total cost that does not exceed the budgeted $4.0 million that has been approved by the City and the County as the funding entities of the project, then it is agreed that the County will award the contract(s) to the lowest responsive and responsible bidder(s) for the two-phase project alternate. ICI In the event that the lowest acceptable bid for the two-phase project alternate results in total project costs that would exceed the budgeted $4.0 million, then County will award the contract to the lowest responsive and responsible bidder for the single phase project alternate unless the Company agrees to be responsible for the difference in the two-phase project costs in excess of the $4.0 million budgeted amount. In such case, County agrees to confer with the Company to determine the best alternative of the two-phase Road Improvements and to award the construction contract(s) accordingly. The County will confer with the Company and use County's best efforts to complete the Road Improvements in the timeliest manner that can be accomplished according to the finally selected project design and specifications. County will confer with the Company before selection of a final construction alternate and contract award. Regardless of the phase alternate by which the Road Improvements are contracted, County will assure Company access to the Facility along the western section of Gaar-Jackson Road leading to the Centerville Road intersection during all periods of construction of the Road Improvements. The entire Road Improvements project shall be substantially completed by November 1, 2018; provided, however, the County will work with the contractor(s) awarded the contract(s) for the project to complete the Road Improvements in the shortest feasible timeframe without compromising the project budget or the quality standards to which the Road Improvements are to be constructed according to the attached Exhibit A. paragraph A. Monica Burns From: dphilbeck@richmondindiana.gov Sent: Tuesday, June 07, 2016 2:41 PM To: citywide@richmondindiana.gov Subject: [citywide] Mare you having an Intranet issue??? Good Day to everyone: Its been brought to my attention that many employees are still unable to access our Employee Portal (Intranet). If this is you, here are the steps to resolve the issue: 1. Open your favorite browser ie; Google Chrome, Internet Explorer, etc. 2. copy & paste this URL in the browser--> http://intranet.city.locaI/intranet (or just click) 3. Allow time for the site to cache into your browser (for fast loading, later) 4. Bookmark, or drag the link to your Windows Desktop. 5. Enjoy the new employee portal! Any questions, please feel free to reach out! Doug Philbeck/IT Dept