Loading...
HomeMy WebLinkAboutAmerican Aggrgates/Martin Maretta - Hazel Dell ParkwaySEP, 11. 2002 11:13hM BARNES THORNBURG 317-231-1433 HAZEL DELL PARKWAY AMERICAN AGGREGATES CORPORATION AGREEMENT NO. 046 F. 6 APPROV E FORM BY. THIS AGREEMENT ("Agreement") is made and eurered into this g+' day of November, 1997, between the CITY 'OF CARMEL, INDIANA (bereinafter referred to as rhe "City") and AMERICAN AGGREGATES CORPORATION, a Delaware corporation (hereinafter referred to as "American"), WITNESSETH: :WHEREAS, the City has previously contemplated the constriction Of road to be (mown .as Hazel Dell Parkway (the "Parkway") in a location that would have utilized the existing Gray Road as a southward extension of such road to 96th Street; WHEREAS, the City wishes to reduce by approximately one mile rhe amount of roadway being built and continually mzMraiued by not bringing the Parkway west to Gray Road at 106th Street but codrinning due South, thereby substantially reducing construction and ongoing maintenance costs (the tocation is Shown on Exhibit "A" artached hereto); WHEREAS, the City furter- wishes to reduce construction and ongoing costs by not having to enlarge Gray Road south of 106rb Street; WHEREAS, American..and its predecessors have conducted mining operations in the area for several years and possess considerable mineral reserves in the location now contemplated for construction of the Parkway; WHEREAS, there now exists at. American's plant located at ;6th Street (the "96th Street Plant"), certain uses which are subordinate to and which benefit American's mining operations, all of which uses have been in existence for a considerable number of years; WHEREAS, both the City's acquisition of the real estate needed for the Parkway (hereinafter described and defined as the "Parkway Real Estate") and the proposed route of the Parkway will have significant impact on American's mining operations and its reserves all to American's detriment and damage; 1 EXHIBIT A SEP. 11, 2002 11:14A1 BARNES THORNBURG 317-231-7433 N0,046 P. 7 53 'WHEREAS, an additional appropriation of rands was made by the City to pay for, among other things, the expense of rlgpt-of-way acquisitions for the Partway, pursuant to Ordinance No. D-1286-97 passed on. April 21, 1997, which ordinance appropriated $4,064,100.00 for right-of-way acgnisitiou; WHEREAS, the Board of the Public Works and Safety of the City and the Hoard of Commissioners of Iiamilton County, Indiana, have entered into an Interlocal Agreement (see attached Exhibit "B") under which the Cry has the power and responsibfliry to acquire all right-of-way to construct the Parkway (except for certain parcels contiguous to 146h Screet), and the Common Council of the City has approved such Interims/ Agreement by the passage of Resolution No. CC -09-02-97-02 on September 2, 1997; WHEREAS, pursuant to IC 32-11-1 the City now has the, right to exercise its power of eminent domain ro acquire the real estate from American and Amcrirar has the right to defend its interests in any condemnation action that the City might file, but both Parties hereto desire to avoid the expense, delay and risk inherent in filing or defending.a condemnation action; WHEREAS, the City now desires to purchase from American the Parkway Real Estate for the purpose of constructing the Parkway and American: is now willing to sell the Parkway Real Estate to the City, all Upon the terms and conditions described herein and in lieu of condei taation; WHEREAS, the extension of. the Parkway southward to 96th Street along the route shovm on Exhibit "A" (ranter .than along Cray Road) has presented additional issues and . additional damages to American, including but not limited to trafficsafety issues; which the pardeshave now resolved; and WHEREAS, the parties desire to incorporate all of their agreements regarding the various matters int° dais comprehensive agreement. NOW, THEREFORE, in..considerarion of the mutual covenants and promises contained herein, the panics harem agree as follows: 1. Sale and Pun -Lase of Real Estate. Subject to the satisfaction of the conditions set fonh in Section 4 below, American shall sell and convey ro the City and the City shall purchase from American at Closing (as hereinafter defined) tide to the following real estate in the interest set forth below; 2 .SEP. 11.2002 11:14A1A PARCEL NO. PARCEL NO. PARCEL NO. PARCEL NO. 1 IA 1B BARNES THORNBU88 317-231-7433 NO. 046 P. 8 Right of Way (Sec attached Exhibit "C") Right of Way (See attached Exhibit "C") Right of Way (See attached Exhibit "C") 1C' Right of Way (See attached Exhibit "C") PARCEL NO. 10 PARCEL NO. IE PARCEL NO. IF PARCEL NO. 10 PARCEL NO. 11-R PARCa NO. 11 PARCEL NO. 1X PARCEL NO- 11. PARCEL NO, LM PARCEL NO. LN PARCEL NO. 1P Right of Way (See attached Exhibit "C") Right of Way (See attached Exhibit "C") Temporary R/W.for Working Area (See attacitdi Exhibit "C") Temporary RJW for Worlemg Area (See attached Exhibit "C") Temporary R/W for Driveway Construction (See attached Exhibit "C") Temporary R/W for Chantel Clearing (See attached Exhibit "C") Right of Way (See attached Exhibit "C") Right of Way(Ses attached Exhibit "C") Right of Way(See attached Exhibit "C") Right of Way(See arracbed Exhibit "C") Right of Way (See attached Exhibit "C") PARCEL NO. 1Q Right of Way (See attached Exhibit "C") PARCEL NO. 1R Temporary RJW for Driveway Construction (See attached Exhibit C„) All of such real estate is hereinafter referred tows the "Parkway Real Estate". Such conveyance shall he free and clear of any and all liens, encumbrances, casements and restrictions execpt those matters which are reflected in the title insurance commitment issued pursuant to Section 4(b) and which are not objected to by the City and shall be subject to the reservation by American of subsurface mining righty as described in Section 8(b) below SEP. 11. 2002 11:14AM BARNES THORNBUR0 317-231-7433 NO 046 P. 9 and. the covenant running with the Parkway Real Estate as described and ser forth in Section. 8(g) below. 2. Compensation. The City shall pay as compensation. for its acquisition, of the Parkway Real Estate from American and as compensation for the damages sustained by. A;rerican as a result of the City's acgttisitign of the Parkway Real Estate and the location of the intersection of the Parkway with 96th Street, the sant of Two Million Four Hundred Thousand pedlars ($2,4OO,000.00) (hereinafter referred ro as the "Compensation Amount"). 3. Closing. (a) The transaction contemplated by this Agreeernene stall be consummated at a closing to be held az such time and place as the parties hereto shall agree in writing, bur in no event later than November 5, 1997 (the "Closing"). (b) Ar Closing, American shall execute and deliver to the City a warranty deed conveying title to the Parley Real Estate subject to the exceptions and reservations permitted by rhis Agreement. American shall also deliver the deeds relating to the Utility Plant Real Estate (as defined hereinafter) and the Parkland: Real Estate (as defined hereinafter). (c) Within thirty (30) days/ after Closing, the Ciry shall deliver to American in the form of a Check, certified check, wire transfer or other manner approved by American, payment of Eight annexed Twenty Thousand Two Hundred Forty T?dllars (.820,240.00) (the Compensation Amount less One Million Five Hundred Sevnny Nine Thousand Seven Hundred Sixty and no1100's Donau (51,579,760.00) previously delivered to American pursuant to that certain document entitled "-Temporary Grant of Right of Entry" (the. "ROE") cxecured by American on or about September. 18, 1997, and executed by the City on or about September 22, 1997, a copy of which is attached hereto as Exhibit "D"). (d) Possession of the Parkway Real Estate, Utility Plant Real Estate, and Parkland Real Estate shall be delivered by American to rhe City at Closing. 4. Conditions to Transactions. The transactions and covenants contained in this Agreement are expressly subject to the satisfaction of the folIowhtg conditions within the time periods stated; (a) The Ciry shall obtain, at the City's expense, within thirty (30) days of the dare of execution cf this Agieetnetu a survey of the Parkway Real Estate, Utility Plant ,Real Estate, 4 SEP. 11.2002 11i14AM BARNES THORNBURG 317-231-7433 N0. 046 P. 10 and Parkland Real Estate sadsfactory to the City certified as of the current dare showing all easements located thereon, which easements shall be subject ro the City's approval. If the City objects. to any matters disclosed by said survey, then within Meeh (15) days after receipt of said survey, the City shall notify American in writing of such objections. If American does - not correct said objections to rhe City's satisfaction within fifteen (15) days of receipt.of notice • of such objections by American, the City's sole and only remedy is to either waive its objections and proceed to Closing or terminate this Agreement without further liability or obligation or claim(s) for damage(;) of either party. A copy of the survey shall be delivered to American no later than five (5) days after receipt of the survey by the City, and American shall have the right to approve the legal descriptions of the Parkway Real Estate, Utility Plant Real Estate, and Parkland Real Estate prior to Closing, which approval shall not be unreasonably withheld, conditioned or delayed. If American fails to approve or disapprove the legal descriptions within five (5) days after delivery of the survey, the descriptions shall be deemed to have been approved by American. (h) The City shall obtain at the City's' expense a commitment for an owners policy of title insurance to be issued within fifteen (15) days of the date of execution of this Agreement, pursuant Eo which a tide insurance company (selected by the City) will agree to insure good, markerable and indefeasible title to the ParkwayReal Estate in the name of the City for the full amount of the Compensation Amount, upon delivery of a warranty deed to tie City. Such commitment shall provide for the issuance of a final ode insurance policy in ALTA Owner's Fenn B-1990 upon Closhig. The City shalt have a period of fifteen 05) days after receipt of the commitment to review such commimsenr and to deliver to American in. writing such objections as the City may have to the cotnmtrment ("Title Defects"). If no written notice of disapproval (or approval is given subject to certain exceptions) is delivered by the City to American within the aforesaid fifteen (15) days, the commitment shall be deemed approved and the Tide /Defects may appear as exceptions in the baner's policy of title insurance and in the warranty deed. American shall, at American's sole cost and expense, have fEfteen (15) days following receipt of notice of the City's objections CO cure any Title Defects with respect to which the City has delivered \Witten objections. If American fails to cute such objections, the City's sole and only remedy is to either weave its objections .and accept such title as American 5 SEP. 11.2002 11:15AM BARNES THORNBURG 312-231-7433 NO. 046 R. 11 can deliver and proceed to Closing or terminate this Agreement without further liability or obligation or claim(s) for damage(s) of either party. 5. Temporary Right of Entry American acknowledges that, pursuant to the ROE the City and its agents, employees and contractors have heretofore had the right to enter and. inspect the Parkway Real Estate and to begin conswuctian of the Parkway: 6. Representations and • Warranties of American. American represents and warta>ars to the City as fellows: (a) There are no outstanding contracts, orders, judgments or injuhctions involving American or the Parkway Real Estate; nor is American threatened with any litigation or proceeding which, if decided adversely,' would delay the- consattimation of the transactions contemplated hereby or have a materially adverse effect upon the fansacrjons contemplated hereby; (b) American will not conduct srurface fining on its real esrarr closer than one hundred (100) feet from paved portions of the Parkway Real Estate at any other public right-of-way or rhe property line with any other landowner; and (c) American is rhe sole owner of. Parkway Real Estate and has the authority to execute this Agreement as evidenced by the Assistau[Secretary's certificate attachedhere:a as Exhibit "I". 7. Representations :and Warranties of the City. The City represents and warrants to American as follows: - - (a) The City is a- municipality duly constituted under the laws of, rhe State of Indiana and has all requisite power and authority to consummate the transactions contemplated by this Agreement; .(b) The execution and delivery of this Agreement by the City has been or will be, ne larer.. than Closing, duly authorized by all necessary action of the City; and (e) The execution, delivery and performance of this Agreement will not cdnflici'`virb any applicable provision of any federal, state, or mimictpal taw or any agreement to which the City is a parry. 8. Additional Warranties, Representations and Agreements of the Parties, The patties further represent, warrant and agree.as follows: 6 SEP. 11. 2002 11:15Ah1 BARNES THORNBIIRG 317-231-743333 NO.046 P. 12 'Ca) Relocation of Batch Plants. There currently exists, immediately south of 96th Street as a part of American's 96th Street Plant and plant operations three (3) asphalt processing plants operated respectively° by F.E. Iiarding, Rieth-Riley Company and Milestone Contactors (hereinafter the "Batch Putts"). Both parties recognize and acknowledge that especially in visw of the location of the intersection of the Parkway with 96th Street, the relocation of the Batch Plants to an area of American's 96th Street Plant which is nurdti of 95th Street, is in the hest interest of the City in terms of public safety andvehicular traffic. Both patties additionally recognize and acknowledge tat the relocation of the Batch Piaats to that area within American's 96th Street Plant as shown on Exhibit `E" (hereinafter "Area E"),. would also serve to mitigate the damages sustained by American as a result of the City's acquisition of the Parkway Real Estate and the location cif the intersection of the Parkway with 96th Steer. To induce American to not only enter into this Agreement but to relocate the Batch Plants, the City hereby warrants, represents and agees that: 0) both the real esare comprising American's 946a Street Plant and Area E (hereinafter collectively and individually the "Plain Real Estate"), is currently outside an "urban area" as said term is defined by I.C. 36-7-4- 1203(b); (ii) so long as the Plant Real Estate is outside an "urban area", 1,C. 36-7-4-1103(c) prohibits the City from adopting a zoning ordinance That would prevent or prohibit American's "complete use" and alienation of any mineral resources located on or beneath the surface of the Plant Tical !stare; (iii) .since any action of the City at this rime to prevent, prolu'bir or deny American's relocation of the Batch Plants to the Plant Real Estate would prevent American from having "complete use." of its mineral resources, the City cannot now prevent, prohibit or deny American's relocation of the Batch Plants to the Plant Real Estate: (iv) since American's main use of the Plant Real Estate is the "complete use' of the mineral resources located on or beneath the surface thereof, the Batch Plants aresubordinate in use to the main use of the Plant Real Estate and can now be relocated on the Plant Real Estate as a permitted accessory use; and (v) based on the above and foregoing, American is entitled to and can relocate the Batch Plants to the Plant Real Estate without obtaining any approvals or permits from the City' so long as American inidares such relocation while the Plant Real Estate is outside the corporate boundaries of the City. in addition, the City further warrants, represents and agrees That, so 7 SEP. H. 2002 11:16AM BARNES THORNBURG 317-231-7433 NO. 046 P. 13 long as:American initiates the relocarion of the Batch Plants to the Plant Real 'Estate before Jauuaty 1, 2000, and thexeattcr proceeds mai due diligence to complete the construction of the Batch Plants on the .Piaui Real Estate, then the maintenance of the Brut Plants by American on the Plant Real Estate wilt constilure a valid, legal non -conforming use pursuant to state law and the zoning ordinances, codes and regulations of the City_ It is recognized that in relocating the Batch Plants, American will save considerable expense by avoiding the construction at -alternative methods of conveying materials across 96th Street. The City also recognizes and acknowledges that even though the relocation of the Batch Plants will save Arnerican considerable expense, American will still incur substantial expenses in relocating the Batch Plants. The City further recognizes, acknowledge and agrees that American would sustain and suffer additional damages if after relocation of the Balch. Plants to the Plant Real Estate, the Batch Plants were required to cease operation and/or be removed from the Plant Real Estate as a result of the entry or issuance of a final and non - appealable order, judgment, injunction or decree by the City or an administrative agency or a COM( of competent jurisdiction which order, judgment, injunction. of decree would not have been issued but for a finding or detertr nariou that the location of the Barch Plans en the Plata Real Estate violates the zoning ordinances, codes or regulations of the City because die Barth Plan.. (i) are not a valid, legal non -conforming use under such zoning ordinances, codes or regulations; br iii.) are nor exempt from such zoning ordinances, codes or regulations, whether by state statute or otherwise.. To compensate American for the damages it would sustain and suffer if the $atch Plants were required to cease operations and/or the Batch Plants were required to be removed from the Plant Real Estate during the period from date of Closing up to and including November 5, 2001, the City covenants and agrees to pay to American and as American's sole and exclusive. remedy, liquidated damages in the stun of Eight Jittndrttl Thousand Dollars (3800,000.00). Both American and the. City agree that It is extremely difficult and impractical to ascertain or calculate the extent of American's detriment and damages in the event the Batch Plants are required to cease operations amdJor be removed from the Plant Real Estate during, the period from date of Closing up to November 5, 2001, and, therefore, to avoid such difficulties, American and the City have agreed that rho aforesaid liquidated damages do not constitute a penalty and shall be in lieu of any other monetary or SEP. 11. 2002 11'1641 BARNES THORNBURG 317-231-7433 NO. 046 P. 14 equitable relief available to American under this Agreement or at kw or in equity .if the Bacot), Planta ate required co cease• operations and/or the Hatch Plants are required to be removed from the Plant Real Estate during the time period from date of Closing up to November 5, 2001. Notwithsrszdipg any provision in this Agreement to the contrary, both American and the City covenant and agree that in the event the Batch Pints are required to cease operations and/or the Batch Plants are required to.beremoved from the ?taut Peat Estate after November 5, 2001, American can pursue any and all claims for damages and compensation that it may - have against the City es a result of the Batch Plants ceasing operadons.and/or the Batch Plants being removed from the Plant Real Estate after November 5, 2001. (b) Reservation of Subsurface Mining Rights. Tbe parties hereby acknowledge and agree that. American shall retain the right to thine beneath the Parkway Rea] Estate dad . Parkland Real Estate after C1o51ng, .and that such reservation of the right to mine. shall be sot forth in the respective deeds. The reservation of the right to mine beneath the Parkway Real Estate and Parkland Real )~State shall be governed by the following provisions: (i) Rights, American hereby reserves, for itself and its contractors, agents, successors and assigns, an exclusive right of access for ingress and egress under the Parkway Rtai Estate and Parkland Real acme commencing at a depth of not less than fifty (50) feet below the surface of cbe Parkway Real Estate. and/or the parkland Real Estate, for the purpose draining, such mining to include the right to tunnel, mine, and .remove gravel, stone, and other aggregate; and to remove from other properties and eansport under the Parkway Real Estate and/or the Parkland Real Estate rock, stone, gravel, sand, limestone and/or minerals as may exist under the Parkway Real Estate and/or the Parkland Real Estate and other properties owned or controlled by American as of the date on which this Agreement is executed by both parties hereto, together Wirth the right to construct and install, maintain, operate, repair, inspect, protect, remove and replace such underground appurtenances and facilities as may be necessary in American's exercise of its rights hereunder. Notwithstanding the foregoing, American hereby 9 SEP. 11, 2002 111:15AM BARNES THORNBURG 317-231-7433 N0, 046 P. 15 aclzowledges that the Ciry's municipal utility bas installed within the Parkland Real Estate underground equipment by which to perform its utility service which service will oor be interrupted and/or disturbed by American. (ii) Tertu, Unless this reservation of tights is released in a written document delivered by American to the City, this reservation shall commence on the duce of Closing and shall continue until the earlier of (I) the termination of all mining activities by American and its succes$ors and assigns in the arca of the Parkway Real Estate and Parkland Real Estate or (2) ninety(90) years from the dare hereof (the °Term°). (iii) Indeutnifrcation. Except as otherwise provided iia 'Section. 8(g) below, during the Term of this reservation of rights, American shall indemnify, defend and save harmless the City from and against all claims, judgments, Tiabl3fries, fines, penalties or expenses caused. by American's exercise of .its rights hereunder. In the event Mar legal action is necessary by either party to enforce any provision of this Section 8(b), the prevailing party shall be entitled to recover from the non -prevailing party the expenses thereof, including reasonable attorneys' fees. (iv) Removal of Equipment and Reclamation. Unless otherwise agreed. to In writing by the City, American shall remove all of the equipment and zelated facilities of American under the Parkway Real Estate and Parkland Real Estate within one bunched twenty (120) days after the termination of American's rights under this Section 8(b). American agrees and Covenants with the City that American wi11,. at its sole expense, complete- any reclamation. obligation in .accordance with applicable. law within, one (I) year from the dam American's mining operations under he Parkway Real Estate and Parkland Real Estate are terminated or such other time as required by law; (v) Subjacent Support. American's operations shall be conducted in a good and workmanlike manner at all times and in such a manner as not to 10 SEP. 11. 2002 11:17AM BARNES THORNBURG 317-231-7433 NO. -046 P. 16 intertere with the surface use of the Parkway Real Estate and.Parkland Real Estate. American shall conduct all such operations beneath. the Parkway Reai.Estate in such a manner as to maintain adequate subjacent support for pedestrian and vehicular use of the Parkway Rest Estate and Parkland Real Estate. (vi) Right of Access Appurtenant and Irrevocable. The rights created herein are irrevocable arid shall run with the land. The parties hereto covenant with each other that the agreements herein contained shall he binding upon their respective successors and assigns. (c) Utility Plant Real Estate. At Closing, Amt&au shall execute and deliver a quitclaim.deed to the City with respect to certain real estate adjacent to the City's utility plant located at 960D River Road and identified on Exhibit "F" attached hereto ("Utility Plant Real Estate"), The conveyance of the Utility Plant Real Esmte shall be subject to the covenant running with the Utility Plant Real 'Bare as described and set forth in. Section 8(g) below. The legal description cif the Utility Plan[ Real Estate shall be determined in The survey prepared pursuant to Section 4(a). (d) Annexation. Tile parries acbaowledge that the City may in the future consider anneiiing real estate owned by American in Clay Township to the City of Carmel, however, the City agrees that no annexation of any real estate currently owned by American, as identified on Exhibit "0" arracbed hereto, shall be effective before January 1, 2000. In the event. the City determines to annex any of American's teal estate located in Clay Township effective on or after January 1, 200D, American agrees not to oppose such annexation but only if the City agrees that conditions to such annexation pursuant to Indiana Code Section 36-43-8 will be as follows: (i) the City recognizes iliac American's mining operations on the subject real estate are carried on under au existing, legal non -conforming use pursuant to case law and as defined in the City's current zoning ordinance, No. Z-289: (the "Zoning Ordin lee");' (Li) the City agrees that the annexation shall not divest American of its mining rights pursuant to such legal non-conforxaing use; (iii} the City agrees that the area proposed to be annexed to the City shall initially be treated by the Zoning Ordinance as if it lay outside an "urban area" as defined in Indiana Code 36-7-44103; and (iv) the City agrees that it will nor object to any proposal by 11 SEP. 11. 2002 11:17AM BARNES TNORNBURG 317-231-7433 N0:046 F, 17 American to rezone the subject real estate for alining operations and the operation thereon of the Batch Plants • and ether accessory uses so.long as the rezoning would be consistent with the City's comprehensive plan adopted under LC. 36-74-500 et seq, provided, however, that ,nothing -in this clause (tv) requites the City to so abject. The City hereby agrees to make such conditions a part of any suet annexation of the real estate owned by American in Clay Township. (e) Donation of Real Estate. At Closing, American shall execute and deliver a quitclaim deed(s) to the City in order to donate the following parcels ("Parkland Real Estare") to the City: two (2) thirty-seven (37) acre tracts identified in Exhibit "11" attached hereto. The conveyance of the Pericles:.d Real Estate shall be subject to the covenant roaming with the Parkland Real Estate as described and set forth in Section 8(g) below. The legal descriptions of the Parkland Real Estate shall he determined in the survey prepared pursuant ro Section 4(a). (i) Right to Stop Traffic. The parties recognize that the new location of the Parkway Truly necessitate additional safety measures so that American can conduct. its occasional blasting operations, Consequently, for' all blasting operations which occur within Seven Hundred Fitly (750) feet of rhe Parkway, the City agrees that it will take all actions necessary to permit American to stop traffic along rhe Parkway not more roan one (1) time per day (Monday through Friday only) between 96th Street and 116th Street for the purpose of allowing American to conduct as blasting: All blasting operations shall be subject to the presence of safe blasting conditions including thepresence of flagmen at all intersections between, and feeder roads into, the portion. of the Parkway Real Estate that is reasonably anticipated to be affected by such blasting operations, and American agrees that it will minimire the interruption of traffic using and traveling on the Parkway by adhering to the following minimum safety procedures: 0) Time. American agrees that it will not conduct blasting before 9:00. a.m., between 11:00 a,m. and 1:30 p.m., between 2:30 p.m. and 6:90 p.m. or after sunset. (i) Nodce. American agrees to notify the Chief of Police of the City of Carmel whenever it wig need to conduct blasting operations that 12 SEP. 11:2002 11:17AM BARNES THORNBURG 3t7-231-7433 NO.046 P. 16 necessitate the stoppage of traffic along the Parkway. Norice to the Chief of Police shall be- given both by telephone and in writing (by facsimile transmission), :not less than twenty-four (24) hours before any blasting occurs. Notice to .the Chief of Police that blasting has been completed shall also be given within one (1) hair after the Parkway is cleared for traffic. (iii) Signage. American agrees that, if within ten (10) years from the date of Closing, the City determines that warning signs. should be erg Lathe Parkway right-of-way to advise traveling motorists of a blasting area, American shat' pay thc.aotual expense for the design and installation of the signage, but in no event shall P merirs,t's payment exceed the total sum of Five Thousand and no/100's Dollars (5,C00.00), In the event the City, within the dme.period set forth above, determines that warning signs should be erected, then American agrees to pay for a period of ten (10) years, an annual maintenance expense for rhe actual costs of maintenance of the warning signs in an amount not to exceed Four Hundred and no/100's Dollars (5400.00) per year. (g) Covenant Running With_ihe Land. The City acltnowiedges that American has and is conducting mining operations on its real estate, inducing that portion of its real estate from which the parkway Real Fsrare, the Utility Plant Real.Estate and the Parkland Real Estate will be conveyed. The City also acknowledges that American, and its successors -it -interests, will continue to condnr't. raining operations. on all of its remaining real-estate in Clay Township following the conveyance of the Parkway Real Estate, the Urllity Plant Real Estate and' the Parkland Real Estate. The City further acknowledges that American has and is leasing ormay in the future lease. to others, a part of its real est for use by indusnies which are suburdin.re to and related to American's mining operations and which use products of Azrtericaa's mining operations, such as for example only, the Batch Plants (hereinafter collectively and separately the "Related Industrie?). The City acknowledges that American's mining operations and the operations of any Related Industries may subject. The City and the Parkway Real Estate, the Utility Plant Real Estate and the Parkaand Real Estate to noise, dust, truck traffic, blasting 13 SEP. 11.2002 11:18AM BARNES THORNBURG 317-231-7433 NO.046 P. 19 vibrations and other inconveniences: :As an induce-ment to American's execution and delivery of this Agreement and conveyance of the Parkway Real Estate, the Utility Plant Real Estate and the Parkland Real Estate to the City, the City covenants,. on behalf oP itself and its successors -in -interests, that it shawl not initiate any preceeding or tapeany action, or participate in any preceeding or action, to limit prohibit or restrict American's, and its successors'-in- interasrs, reining operations or the operations of the Related bdiistries located on American's real estate whatsoever, including, but nor Ihnited. ro, nnlsanee or trespass. The City, on behalf of itself and Its surassors-in-interests, does hereby waive, release, forever disrharge and covenant nor to sue American, irs successors -in -interests, their lessees' and their respective shareholders, officers, directors,, and employees for any and all claims, detra»ds, injuries, actions and causes of acdot at.iaw or in equiry, past, present or future, any damages, or other claims arising out of non -negligent mining operations, andior non -negligent Related Industries operations,, including, by way .of i It swad'on, and nor limitation, property daaage including diminution of property value, enw:ional distress, lass of peace of mind and happiness, discomfort, inconvenience, annoyance disruption, nuisance or trespass. For purposes of this paragraph (g) the terra °proceeding" means any action, suit or proceeding, whether civil, criminal, administrative or investigative, and whether formal or informal. The City acknowledges and agrees that the foregoing covenants shall run with Me Parkway Real Estate, the Utility Plant Real Estate and the Parkland Real Estate and the foregoing covenants shall be reflected in the deeds to be delivered by American to the City pursuant to this paragraph (g). (h) Claims Against Tide. insurance: The City agrees that for any claim or cause of action it may have against An:eticau for breach of warranties given by American pursuant to the warranty deed conveying the Parkway Real Estate to the City, the City will East process, assert, pursue and exhaust. all of its claims and remedies against the title insurance company issuing title insurance pursuant to Section 4(b) of this Agreement before the City pursues its claims or causes of action egainct American. 9. Property Taxes anti -Assessments. Real estate taxes payable in the calendar year following Closing will be prbfated based upon rhe numter of days of ownership of the Parkway Real Estate, Utility Plant Real Estate, and Parkland Real Estate by American and the City during the calendar year. of Closing. M1 real estate tares payable prior thereto shall be 14 SEP. 11. 2002 II:1BAM BARNES THORNBURG 317-231-7433 NO. 046 P. 20 payable by American upon presentation of a tax statement to American by either the Treasurer of Hamilton County, Indiana or the City. American.shall pay all assessmetits'becgming a lien On the Real Eetate prior is Closing. 10. Insurance and Risk of Luss. Except for the insurance maintained for or on luhalf of the City by a third party in connection with the ROE and except for the 'City bearing the risk of loss on the Parkway Real Estate while having access thereto pursuant to the ROE, insurance to protect the Parkway Real Estate, Utility Plant ileal Estate and Parldand Real Estate, including liability insurance, shall be maintained by Arnerion until the date of Closing. Except as noted above, American shall bear the risk.of loss on the Parkway Real Estate, Utility Plant Real Estate and Parkland. Real Estate through the date of Closing and the City shall bear the risk of loss thereafter. 11. Survival of Representations; Iudeniinity. The representations, warranties, agreements and covenants of the parties to this Agreement shall.stirvlve the Closing and We conveyance of the real estate pursuant tb this Agreement. Each party bereto agrees to defend, indemnify and bold harmless the other party, its successors and assigns from and against any and all damages, actions, suits, claims, liabilities, obligations, deficiencies, losses, judgments, costs and expenses (including, without limitation, attorneys' fees and expenses) which would not have been suffered,. sustained or lncurred'but ter the breach of any warranty or inaccuracy of any representation made by the indemnifying parry, or non -fulfillment en the parr of the indemnifying parry, of any,,-agreemeat er covenant or other document furnished or to be furnished by the indemnifying party purauant to this Agreement or Le connection with the transaction contemplated hereby. 12. Benefit and Binding Effect. Thaw Agreement shalt be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 13, Expenses. All closing fees and recording fees will be divided equally by the parties. Each party will be responsible for the payment of its own attorneys' fees. 14 Notices. Except as provided in Section 8(f); any notice which may be or is required to he given hereunder shall be in writing and shall be deemed given' if and when posted in certified mail, return receipt requested, and addressed to .the respective parties as tOtlows: 15 SEP. 11. 2002 1:I8AM BARNES THORNBURG 317-231-7433 NO. 046 P. 21 If to Anerican: If to etre City: With a Copy to: American Aggregates Corporation P.C. Pox 147515 6450 Sand lake Road Dayton, Olio 45413-7515 With a Copy to: Martin Marietta,Materials 2710 Wycliff Road Raleigh, North Carolina 27607 Attention: Vice -President and General Counsel Mayor, City of Carmel One CMC Square Carmel, Indiana 46032 City of Cannel Department of Law One Civic Square Carmel, Indiana 46032, Attention: City Attorney or such other address or addresses as any parry way subsequently designate is writing to the ether parties. hereto. 15. Amendment. This Agreement may ouly be amended by an instrument in writing signed by American and the Cir9. 16. Attorneys' Fees. In any litigation between the parties to enforce any provision or. right under this AFeemeut, the itnsuc:essfltl party covenants and agrees to pay to tae successful party all costs and expenses incurred by the prevailing party in connection with the litigation, including, but not limited to, reasonable attorneys' fees. 17. Enforceability. in the event that a coma of competent jurisdiction determines dint one or more provision herein Ls or are unenforceable, all other provisions hereof shall be unaffected thereby and shall be fully enforceable by the parties hereto. 18. .Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties hereto with respect to this transaction and supersedes any prior undersmndings or written of oral agreements with respect thereto. This Agreement may be amended or modified only by a writug executed by both parties hereto. 16 SEP. 11, 2002 11 19AM BARNES THORNBURG 317-231-7433 NO. 046 P, 22 19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. American and City agree and conseac (i) that any legal action or proceeding relating to, pertaining to or concerning the subject matter of This Agreement may be brought only in the non-exclusive general jurisdiction of the courts of the state of Indiana sitting in Hamilton County, Indiana, the courts of the United Sates of America for the Southern District of Indiana, and any appellate courts from any thereof; and. (ii) consent that any such action or proceeding may be brought in such coups and.waive any objection either may now or hereafter have to the venue bf any such action or proceeding in any such court or Thar such court or procercting was brought In an inconvenient tour( and agreeS •not to plead or claim the sane 20. Interpretation. Roth parties andthein respective counsel have participated in the preparation of this Agreement, aid therefore it. IS. deemed to have been mutually prepared. 21. waiver of Jury Trial. American and City, after consulting with counsel, knowingly, voluntarily and intentionally waive any right they may have to a trial by jury in any litigation based upon or arising oat of this Agreement or any of the transactions concernplared hereby. Neither American nor the City shall seek to consolidate, by counterclaim or otherwise, any action in which a jury vial has been waived with any other action in which a jury vial cannot be or has not been waived. These provisions shall not be deemed to have been modified in any respect or relinquished by American or the Cary except by written iUSnnent executed by both American and die City. 22. Exhibits.. All Exhibits referenced herein. shall be considered incorporated herein as an integral part of this Agreement, 23. Counterparts. This Agreementmay be executed in separate counterparts each of which when so executed shall be an original; but all of such counterpars shall together constitute but one note the same instrument BALANCE OF PAGE INTENTIONALLY LEFT BLANK 17 SEP. 11.20U2 11:19AM BARNES THORNBURG 317-231-7433 NO. 646 IN WITNFRS WHEREOF, the parries hereto have executed this Agre went on the date sei forth above. °CITY° CITY OF CARMEL, INDIANA "AMERICAN" 8344--4„--RI Brainard, Mayor and Member of the Board of Public Works and Safety By 7dt/ Mary.Annrke, etdberf Board of is Works and Safety illy ', alker, Member of the Board of Public Works and Safely AMERICAN AGGREGAT ` CORPORATION By: Printed: Geo - Harris Title: President /� Attested by - Jf R7J o : Printed: fRn&;,L1A?"-Air Title: Secretary Is SEP. 11, 2002 11:19A1h BARNES THORNBURG 317-231-7933 NO. 046 P, 24 STATE OF INDIANA ) ySS: COUNTY OF an„11 40 ) Before me, a Notary Public in and for said Cormty and State, personally appeared James Brainerd as Mayor. of the Cary of Carmel; whoacknowledged the execution of'rhe foregoing instrument, and who, having been duly sworn, stated that any representations contained therein are true. Wimess my band and notarial seal this 1997. My Conn -kg -inn Expires t-.i-Oo County of Residence: r~1 4 h et STATE OF INDIANA ) ) SS: COUNTY OF /-4- -JCJ levi ) dayt ,7 of � avpd.a 'rx r Printed Pe be cca Notary Public -Before roe, a Notary Public in and for said County and Stare, personally appeased Mary Ann Burke as a Member of the Board of Public Works and Safety of the City. of Carmel, who acknowledged the execrtion of the foregoing instrument, and who, having been duly sworn, stated tiaat any representations-conrai.ned therein are trate. Wimess my band 'and notarial seal this5?_ day of Ai6 'dont Vit+ r 1997. My Commission Expires: Signature/ / 71 /4 _5 - S -o. Printed le.b ePg Lt %lo Notary Public County of Residence: 19 SEMI: 2.002 11: 20AM BARNES THORNBURG 317-231-7433 NO, 046 P. 25 .STATE OF INDIANA ) ) SS: COUNTY O1= ,.,;,u;lila • ) Before me, a Notary Public in and fur said. County and Stare, personally appeared Billy Walker as a Member of the Board of Public Works and Safety of the City of Carmel, who acknowledged theeXteutian of the.foregoing instrument, and who, having been duly sworn, stated that any representations conrunei therein are true. L997, Witness my hand and notarial seal this 5577 day of . A4u#744 by. i' My Commission Expires: Signature gje f Loa( %—S -c, a Printed , l ��c T Notary Public County of Residence: iflin W. STATE OF OW ip • ) SS: CQUNTYOFfMoti•T,o»SPI' ) Before me, a Notary Public in and for mid County an Stare, personally appeared Geoff C, Harris as President of American Aggregates Corporation, who acknowledged the execution of the foregoing instrument, and who, having been duly sworn, stated that any representations contained herein are true. 1997. Witness my hand and notarial seal this 3/ Ff day of (r./,;Aer My"Couwtission Expires: 11-/Y -99 Cbuu y of Residence: Daderre (T;n Signature Printed LEONA A. PET O, Notary Public tnandf o My Coin�Nov_ 1A,1999 20 SEP. 11. 2442 11:24AM aARNES THORNBURG 317-231-7433 NO.446 P. 26 STATE OF Nidi ) SS: COUNTY OF ?'2AXY ) n Before ne, a. Notary Public in and for said Coops:, and State, personally appeared /Pole lyv9 ,�'. ere as Secretary/Assistant Secretary of American Aggregates Corporation, wlio acsnoivledged the exeiuion of the foregoing instrument, and wao, having been duly sworn, stated that any representations contained [herein are true. Witness my Hard and notarial seal this ? ( day of o c^dt3aa 1997. My Corniyissien.Evires: 9/j7112"nd o County of Residence: 6/A 4:- mmF rchataO10.30.r.d®a cm+tawchasre?10.28.91 Signanrre./Th ,t,7e,k / nvnP Printed /V,964/4a-1 11!. 4.44,Mz>Y Moray Public 21.