AGREEMENT REGARDING CONSTRUCTION OF RAIL PROJECT

Northern Indiana Commuter Transportation District

West Lake Corridor

Town of Munster

Area: MP WL61.38 - MP WL64.90

THIS AGREEMENT between the Town of Munster, Indiana, by and through its Town Council (hereinafter “Community”) and the Northern Indiana Commuter Transportation District operating the (hereinafter “the District”) is to be effective as of the day of , 2019.

RECITALS

WHEREAS, since 1990, the District has operated the South Shore Line passenger rail service from Millennium Station in Chicago, Illinois through Lake, Porter, LaPorte, and St. Joseph Counties in Indiana.

WHEREAS, the District has applied for a New Starts Capital Investment Grant from the Federal Transit Administration (“FTA”) for the Project (“Rail Project”).

WHEREAS, the District and Community support the construction of the Rail Project, which involves: the design and construction of a new approximate 8-mile extension of the South Shore Line from Hammond, Indiana to the border of Munster and Dyer, Indiana, along with new passenger stations, catenary, and structures necessary for passenger rail operations.

WHEREAS, the Indiana General Assembly has authorized the District to make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers in financing, leasing, and constructing the Rail Project. I.C. § 5-1.3-3-7.

WHEREAS, the District and Community are parties to a Memorandum Agreement dated February 1, 1993, and Easement Agreement dated December 20, 1995 related to the Rail Project.

WHEREAS, this Agreement is intended to follow those prior agreements among the Parties, and to establish the respective rights and obligations of each Party that are particular to the design of the current Rail Project.

WHEREAS, the parties agree that it is in the best interests of both the District and Community to perform all actions necessary to complete the Rail Projects.

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NOW, THEREFORE, the parties, intending to be duly bound, set forth their mutual rights and responsibilities to accomplish that purpose in a coordinated and unified approach to the funding, acquisition, and construction of the Rail Project.

1. Definitions – the defined terms set forth in this section shall apply throughout this Agreement.

Agreement – This Agreement regarding Construction of Rail Project between the Northern Indiana Commuter Transportation District and the Town of Munster, Indiana.

Community – Town of Munster, Indiana, including all Boards, Districts, Commissions, public officials, and any other entity serving the Town of Munster

IFA – The Indiana Finance Authority

The District – the Northern Indiana Commuter Transportation District

Rail Project – the West Lake Corridor Project

RDA – the Northwest Indiana Regional Development Authority

2. Findings and Purpose

A. The foregoing recitals are incorporated in this Agreement as the findings of the parties.

B. The purpose of this Agreement is to establish the mutual rights and responsibilities of the District and Community in order to complete the Rail Project.

3. Duration

A. This Agreement shall be for an initial term of ten (10) years.

B. This Agreement shall terminate earlier if the Rail Project is completed.

4. Rights and Responsibilities

A. The District or its Contractors shall: i. Design and construct the Rail Project through the Design-Build procurement process under Indiana Law. ii. Acquire all real estate necessary for the Rail Project, in accordance with federal and state law, including all necessary appraisals and review appraisals. iii. Maintain insurance coverage for the construction of the Rail Project, and require its contractors to maintain insurance coverage.

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iv. Develop a Maintenance and Protection of Traffic Plan to address disruptions to travel during the course of the Rail Project (pursuant to the March 2018 Final Environmental Impact Statement, Record of Decision, Attachment A). The plan shall address both street and trail closures. Any lane and trail closures and detour routes shall be approved by the Community. v. Upgrade the traffic signal at the intersection of Sheffield Avenue and Main Street to accommodate a fourth leg of the intersection providing access to the new station parking lot. vi. Provide for noise barriers with a height of four (4) to five (5) feet from top of rail between MP 63.7 and 63.9, on the west side of the tracks (pursuant to the March 2018 Final Environmental Impact Statement, Record of Decision, Attachment A). vii. Provide for noise barriers with a height of four (4) to five (5) feet from top of rail between MP 63.4 and 63.6, on the east side of the tracks (pursuant to the March 2018 Final Environmental Impact Statement, Record of Decision, Attachment A). viii. Implement ballast mats (or other track support system modifications) between MP 63.7 and 63.9, to extend the length of one full trainset on either side of the affected receptor (pursuant to the March 2018 Final Environmental Impact Statement, Record of Decision, Attachment A). ix. Perform relocation or upgrades (protect in place or replace) of utilities owned by Community in areas of the Rail Project between the southern extent of the Rail Project and the southern boundary of the old Monon Right-of-Way purchased by the District, Community, and the City of Hammond from CSX Transportation, Inc. (located at approximately MP WL63.1), which relocations and/or upgrades are necessary due to the Rail Project, or reimburse Community for its costs of performing said relocations or upgrades. The District shall include Community’s preferred utility contractors in the Design-Builder package for underground facilities. x. Restore any damage to the Pennsy Greenway Bike Trail as a result of the Rail Project to its pre-construction condition. The trail will be rerouted to cross the West Lake Corridor at Fisher Street. xi. Provide a pedestrian underpass at Sunnyside Avenue to accommodate the relocated Monon Bike Trail. xii. Provide a pedestrian tunnel at the new Munster/Dyer Station. xiii. Install a 5-foot wide sidewalk along the west side of Allison Road between Jenna Drive and Megan Way. xiv. Replace any high quality trees which are removed from property owned by the Community as a result of the construction of the Rail Project in locations desired by the Community. High quality trees shall be defined as healthy, native species with a minimum of 6” diameter at breast height. Replacement trees shall be a minimum of 2” diameter at breast height, in the discretion of the District. Provide a planting plan for Community approval that indicates the location and species of replacement trees. xv. Coordinate selection of landscape treatments to be consistent with the requirements of the Community’s landscaping ordinance with respect to any improvements constructed within the Community (pursuant to the March 2018 Final Environmental Impact Statement, Record of Decision, Attachment A).

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xvi. After completion of the Rail Project, operate trains consistent with federal regulations and safe train operating standards. xvii. Provide a minimum of 60' easement underneath the 45th St. overpass, in the area north of the Grand Trunk Western right-of-way, for an access road to be constructed between the Munster Business Complex and the Lansing Country Club. xviii. Provide space for signs and lighting to be installed on the 45th St. overpass and Broadmoor Ave. viaduct. xix. After close –out of the Rail Project, permit, review plans for, and work with the Community to install a pedestrian underpass at Briar Lane, or if one is not feasible, a state-of-the-art at-grade crossing at Briar Lane. The District’s obligations under this subsection are subject to a demonstrated Transit-Oriented Development need, which must be certified by the RDA. xx. Maintain all parking areas and station areas in compliance with Community’s town codes or reimburse Community for maintenance costs. The District will work with the Community to develop and execute a mutually acceptable Operations and Maintenance Agreement before the commencement of revenue service operations (transporting passengers for a fare) of the Rail Project. The Operations and Maintenance Agreement shall address, at a minimum, the following: (a) lighting, (b) landscaping, (c) mowing, (d) snow/ice removal, and (e) crack sealing/paving. xxi. Develop and present plans for lighting, streetscaping, and landscaping for all parking and station areas that comply with Community’s town codes. xxii. Limit construction activities to established work hours of 7 AM to 7 PM unless specifically authorized by the Community. xxiii. Cooperate with Community and the RDA in planning and development to maximize the benefits and opportunities for transit-oriented development in the vicinity of the passenger stations, subject to the primary purpose of providing safe, reliable, and efficient commuter rail service. Conceptual plans are attached hereto as Exhibit B, for illustrative purposes only.

B. Community or its Contractors shall: i. Review project plans once they have reached 60% completion and submit any proposed changes to the District within 30 days of receiving said 60% plans. Any proposed changes submitted by the Community shall be subject to the review and final approval of the District. Proposed changes submitted by the Community, and approved by the District, are subject to the following requirements: a. The District’s Design-Build Contractor shall create a cost estimate to complete the 100% design, engineering, and the construction for the proposed changes, and that cost estimate will be shared with the Community; b. After receiving the cost estimate, the Community shall notify the District within 30 days whether it desires to proceed with the proposed changes;

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c. If the Community notifies the District that it desires to proceed with the proposed changes, the changes will be incorporated into the appropriate design and construction package; and d. The cost of any changes approved by the District, including but not limited to the costs of design, engineering, and construction, which cost exceeds the budgeted project cost, shall be the sole responsibility of the Community, including any change orders. The District shall invoice the Community for these additional costs, and the Community shall pay the invoiced amounts within ninety (90) days. e. The Community is not responsible for any costs associated with proposed changes that are brought to the District’s attention in order for the design of the station parking lots to comply with the Community’s landscaping ordinance. f. If Community requires a reasonable extension of time to complete the review of project plans or the cost estimate for proposed changes, Community shall make a written request to the District as soon as possible. Extensions of time are subject to the District’s discretion. The District will not unreasonably withhold its consent to allow time for appropriate action to be taken at public meetings. ii. Agree to adhere to the District’s Sensitive Security Information Policy and Procedure in the event the Community would be in receipt of information designated as Sensitive Security Information (as defined in 49 C.F.R. Parts 15 and 1520). iii. Provide access to water that will be metered for the irrigation of landscaping installed at the Ridge Road and Main Street Stations. iv. Convey real property needed for the Rail Project to the District, as either an in- kind local contribution, donation of perpetual easement for railroad purposes, transfer of ownership through sale, or 99 year long-term lease, at the Community’s discretion. v. Perform relocations or upgrades (protect in place or replace) of Community- owned utilities in areas of the Rail Project located between the southern boundary of the old Monon Right-of-Way (located at approximately MP WL63.1), and the northern corporate boundary of Community, which relocations and/or upgrades are necessary due to the Rail Project, or reimburse the District for its costs of performing said relocations or upgrades. The District shall include Community’s preferred utility contractors in the Design-Builder package for underground facilities. Community may, at its option, abandon any affected utilities (December 20, 1995 Easement Agreement at § 17). Abandoned pipelines shall be removed or completely filled with grout, compacted sand, or other NICTD approved methods. In addition, abandoned manholes and other structures shall be removed to a minimum depth of 2 feet below finished grade and be completely filled with grout, compacted sand, or other methods as approved by NICTD. vi. Perform all these contractual obligations in a reasonably timely manner, so as not to delay the schedule for the Rail Project. For obligations requiring action of the

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Town Council or another Board, this shall mean no longer than sixty (60) days after receiving a request in writing. vii. Cooperate with the District and the RDA in planning and development to maximize the benefits and opportunities for transit-oriented development in the vicinity of the passenger stations, subject to the primary purpose of providing safe, reliable, and efficient commuter rail service. Conceptual plans are attached hereto as Exhibit B, for illustrative purposes only. viii. Community will work with the District to develop and execute a mutually acceptable Operations and Maintenance Agreement before the commencement of revenue service operations (transporting passengers for a fare) of the Rail Project. The Operations and Maintenance Agreement shall address, at a minimum, the following: (a) lighting, (b) landscaping, (c) mowing, (d) snow/ice removal, and (e) crack sealing/paving. ix. After close-out of the Rail Project, and if a crossing at Briar Lane is desired by Community, (a) obtain a certification from the RDA that there is a Transit- Oriented Development need for a pedestrian crossing at Briar Lane. (b) fund the costs of a feasibility study for the constructability of a pedestrian underpass at Briar Lane, and (c) fund all design and construction of a future proposed pedestrian underpass, or (d) if an underpass is not feasible fund all design and construction of a state-of-the-art at-grade pedestrian crossing at Briar Lane. Community’s funding obligations under this subsection shall include, but not be limited to, the feasibility study for the constructability of the pedestrian underpass, state-of-the-art crossing protection, engineering, environmental studies, land acquisition, construction, and all future maintenance.

5. Cost Responsibility:

A. The District shall perform all obligations set forth in section 4.A. of this Agreement at no additional cost or expense of Community.

B. Community shall perform all obligations set forth in section 4.B. of this Agreement at no cost or expense of the District.

6. Third-Party Beneficiaries: The RDA and IFA are intended third party beneficiaries of this Agreement, and the RDA and IFA are entitled to enforce the terms of this Agreement, consistent with third party beneficiary rights and on the same terms and conditions as the District. Notwithstanding their status as third-party beneficiaries, the RDA and IFA shall not be deemed to have assumed any liability or obligation of this Agreement without their written consent.

7. Assignment: The District may assign this contract to the RDA and/or the IFA, or their respective designees, in the event that RDA and/or IFA exercise their Construction Period Step-In Rights and/or Operations Step-In Rights per Article 11 of the Amended and Restated Governance Agreement Concerning Development of the Rail Projects, effective June 24, 2019 (the “Governance Agreement”).

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8. Access to Records: Community must provide the FTA, the District, RDA, and/or IFA with access to all documents related to the Rail Project, and provide copies of all documents to the District at its request, RDA at its request, or the IFA at its request. Provision of such copies shall be at Community’s sole cost and expense.

9. Termination:

A. In the event that the District’s obligations are funded or financed by the RDA and/or IFA, and require State appropriations, and to the extent the RDA and/or IFA determine that funds are not appropriated or otherwise available to support the continuing performance of the District’s obligations, the District may terminate this Agreement for convenience. Such a termination for convenience shall be at no cost to the District, RDA, and/or IFA, except for costs of work performed or services provided prior to termination, for which the District is responsible under this Agreement. Prior to termination being effect, the easements, right-of-way, and all effected or disturbed soils and parcels shall be restored to their prior condition. B. Community shall have no right of termination for convenience, except as set forth in section 3.C above.

10. Insurance: The District shall carry, or shall require its contractors to carry insurance policies providing coverage for commercial general liability, automobile liability, railroad protective liability, worker’s compensation, employer’s liability, contractor’s pollution, pollution legal liability, builder’s risk, professional errors and omissions, and delayed opening coverage, all pursuant to the Governance Agreement with at least a minimum coverage of $2.00 million.

11. Federal Funding Requirements:

A. As a condition for the Rail Project to continue qualifying for Federal funding under a Full Funding Grant Agreement, Community agrees to comply with all the Federal funding requirements attached hereto as Exhibit ‘A’ and incorporated herein. Community acknowledges that it has reviewed these Federal funding requirements in Exhibit ‘A’, understands them, and agrees that Exhibit ‘A’ may be updated from time to time in order to reflect the current Federal laws, regulations, policies, and related administrative practices applicable to this Agreement. Community further agrees that the most recent of such Federal requirements will govern the administration of this Agreement at any particular time, except if there is sufficient evidence in this Agreement of a contrary intent. Such contrary intent might be evidenced by express language in other portions of this Agreement, or a letter signed by the Federal Transit Administrator the language of which modifies or otherwise conditions the text of a particular provision of this Agreement or its funding source terms and conditions. Likewise, new Federal laws, regulations, policies and administrative practices may be established after the date this Agreement has been executed and may apply to this Agreement. To achieve compliance with changing Federal requirements, Community agrees to include in all subcontracts specific notice that Federal requirements may

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change and the changed requirements will apply to the project as required. All limits or standards set forth in this Agreement to be observed in the performance of this Agreement are minimum requirements.

B. Incorporation of Terms. The provisions of this Agreement include, in part, certain Standard Terms and Conditions required by FTA, whether or not expressly set forth in the preceding Agreement provisions. All contractual provisions required by FTA, as set forth in FTA Circular 4220.1F, dated November 1, 2008, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA- mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement consistent with regulatory deferral to state law. Community shall not perform any act, fail to perform any act, or refuse to comply with any District requests which would cause the District to be in violation of the FTA terms and conditions.

12. Additional Terms

A. Venue and Governing Law. This Agreement shall be governed by the laws of the State of Indiana, except for any rules concerning choice of laws. The parties agree that the venue for any litigation relating to this Agreement shall be the Superior or Circuit Court of Lake County, Indiana.

B. Authority. Each party acknowledges and covenants that it has taken all necessary actions to bind itself to the terms, conditions, and obligations of this Agreement.

C. Construction of Language. The language used in this Agreement is language developed and chosen by all parties to express their mutual intent and no rule of strict construction shall be applied against either party.

D. Final Agreement. This Agreement, together with the exhibits incorporated herein, shall constitute the entire agreement of the parties relating to the subject matter hereof. No warranties, representations, or promises pertaining to this Agreement or any property or rights affected hereby have been made, nor shall be binding upon, any party except as expressly stated in this Agreement.

E. Modification. This Agreement may be amended or modified only by an instrument in writing signed by all parties.

F. Notice. Unless otherwise provided herein, all notices and communications concerning this Agreement shall be sent by US Mail, certified or registered, postage prepaid and properly addressed as follows:

If to the District:

Northern Indiana Commuter Transportation District Attention: President

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33 East U.S. Highway 12 Chesterton, Indiana 46304

With a copy to:

Harris Welsh & Lukmann Attention: L. Charles Lukmann, III 107 Broadway Chesterton, Indiana 46304

If to Community:

Town of Munster Attention: Town Manager 1005 Ridge Road Munster, IN 46321

With a copy to:

Westland and Bennett PC Attention: David Westland 2929 Carlson Drive, Suite 300 Hammond, Indiana 46323

G. Non-waiver. Except as otherwise provided herein, no delay or failure by any party to exercise any right under this Agreement shall constitute a waiver of that or any other right, unless expressly provided in this Agreement, or in a separate writing signed by that party.

H. Headings. The headings of each division are for convenience only and shall not be used to interpret or construe its provisions.

I. Counter-parts. This Agreement may be executed in separate and multiple counter- parts, and in such case each counter-part, facsimile, electronic signature, or other electronic or hard copy, shall be considered an original.

J. Severability. Each and every separate division (including, but not limited to, paragraph, clause, condition, covenant, or agreement) contained in this Agreement shall be separable from every other division. If any division is determined to be unconstitutional, illegal, violative of public policy, unenforceable, void, voidable, or otherwise invalid for any reason, that determination shall have no effect on the continuing validity and enforceability of all or any other division of this Agreement.

IN WITNESS WHEREOF, the parties indicate their acceptance and have executed this Agreement as of the date and year first written above.

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TOWN OF MUNSTER

By: ______

Its: Town Council President

NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT

By: ______Michael Noland, President

The following Departments, Districts, and Commissions of the Town of Munster also agree to be bound by this Agreement:

Munster Park and Recreation Board

By: Mike Sowards Its: President

Redevelopment Commission of the Town of Munster

By: Andy Koultourides Its: President

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