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Home My WebLink AboutSettlement Agreement 7-17-08 U2176475.4 EXECUTION COpy COpy S~ttlement Agreement by and among City of Carmel, Indiana and Mayor James 'Brainard and The Carmel Board of Zoning Appeals and M~rtin Marietta Materials, Inc. and E & H Mueller Development L.L.C. July 17,2008 TABLE OF CONTENTS ~. ;1\ ..,;~~.: "\~~ .~::. '~~'''' ':~-r..,~. .'n,' ,,_ _.. ' ~::) ~:;~ - '" J ~:)~;1V .;.,~} ,.-.}/ ARTICLE I. ARTICLE n. ARTICLE III. ARTICLE IV. ARTICLE V. ARTICLE VI. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 1/2176475.4 Paee Martin Marietta's Special Use Permit Applications.............................................2 The Mining Ordinance Dispute.......... ....................................... ..........................3 The Eminent Domain Action........................................... ............................ ........4 Contractual Undertakings.....................................................................................4 Incorporation of Recitals ......................................................... ............................ 5 Agreement..................."........ ..;..................... .-........ ...............................................5 Definitions ......... ............... .............................................. .....................................5 Remand to the BZA ....... 0...................... ............ ....... ............................. ...... .........6 City Role ............................................. ..................................... ..... ............... ......... 7 Conditions Precedent............................................................................... ............ 7 Dismissal of Pending Lawsuits..... ...................................... .......... .... ........... ........8 Compliance with Laws ........................................................................................8 Withdrawal of Certain Application; No Further Applications for Mueller North Property."..; ............................................ .................................... ..,8 No New Land Uses; Martiri Marietta Property and Mueller South Property............................ .................................................................................... 9 Surface Blasting..........,;..... ...... ..................................... .................................. ...1 0 Annual Fee................................................................................. ......... ................10 Donation of Real Property........................... ................ ........... ............. ....... .......1 0 Assistance to Kingswood .;.......... ........................... ............. ............... .............. ..11 Additional'Signage in Kingswood Subdivision ............ ............ ....................... ..11 Acknowledgment of certain of Martin Marietta's Underground Mining Rights................................................ ................................ 0............................... .11 Continuing validity and enforceability of Hazel DellAgreement.....................12 Vested Mining and Operational Rights; Covenant Running with the Land ........................................... ..... .. ...... .. .. .. .. .. .. .. .. .. .. ..... .. .. .. . . .. .. .. .. .. . .. .... .. .. .. .. ..12 Preservations of Remedies................................. ..:....................... i................... ..15 Representations and Warranties of the City.................... ....... ............... .............15 Representations and Warranties of Martin Marietta..... ....... ...... ................. .......16 Certain Restrictions on Mining Operations North of 106th St. or on Mueller South................................................................................................. ...16 Breach and Cure....................................................... ............................. ........ ......17 Enforceability.............................. ~......................................................................1 7 Attorneys' Fees and Costs.. ..... .............. .... .............. ............... ........ ................... ..18 Addition and Replacement of Equipment. .. ........................ ............................. ..18 -Non-Mining Uses.. ...................... ...................................... ........ ........ ... ..............] 8 Issuance of Permits ............ ........................................... ........................ ........ .....18 No Expiration of Rights..... .... ................................... ........... ..................... ..... ....18 Inapplicability of Mining Ordinance...... ........ ......... .... .................................... ..19 - I - 29. Waiver and Release of Claims .............. .................. .... ............................ .......... .19 30. Successors and Assigns; Third Party Beneficiaries ...........................................20 31. Notices ..................................................................."........................................... 2 0 32. Amendment.... ................ ........................ ........................ ............. ..................... ..22 33. Entire Agreement...... .................................. ............................ ..........~.............. "..22 34. Governing Law 0 _... .~........................o........ ................. ........... .................... .......... .23 35. Interpretation......................... ........ ........... ...... ,....... .......... ...;..... ......................... .23 36. Exhibits...................... .......:........................ .....................:........................... ..... ..23 37. Counterparts..,....... ...:....................... 0...................... ........................................... ..23 38. Authorization by Department of Community Services .....................................23 Exhibit A Exhibit B Exhibit C Exhibit D-1 Exhibit D-2 . Exhibit E Exhibit F Exhibit G Exhibit I-I I/2 I 76475.4 SCHEDULE OF EXHIBITS Hazel Dell Agreement, dated November 5, 1997 Mueller Agreement, dated August 21, 2001 Kingswood Settlement, da.ted May] 7,2002 Legal Description for Mueller North Property Legal Description for Mueller South Property Statement of Commitments for Mueller South-Limestone Statement of Commitments for Mueller South-Underground Form of Consent Order to be filed in Federal Suit Description of Land to be Deeded to City of Cannel Upon Completion of Removal of Sand and Gravel - II - SETTLEMENT AGREEMENT This Settlement Agreement (this "Agreement") is made and entered into to be effective as of the 17th day of July, 2008, by and among the City of Carmel, Indiana (the "City" or "Carmel"), Mayor James Brainard ("Brainard"), the Carmel Board of Zoning Appeals ("BZA"), Martin Marietta Materials, Inc. ("Martin Marietta"), and E & H Mueller Development L.L.C. ("Mueller") (collectively, the "Parties"). The BZA, Michael Hollibaugh, and Mueller are made parties hereto only for certain limited purposes, as set forth more fully herein. BACKGROUND Martin Marietta and its predecessors; which include American Aggregates Corporation ("American"), for decades have operated an open pit quarry, underground mine, surface sand and gravel pit/quarry, and topsoil storage and sale, together with both mobile and stationary processing plants and related equipment on various properties in the vicinity of 96th St. and Hazel Dell Parkway, and running north froin 96th St. up to, at one point, l16th St., in Hamilton County, in or near Carmel, Indiana (collectively, the "Martin Marietta Property"). Such operations of Martin Marietta and its predecessors in interest are referred to collectively as the "Carmel Quarry." Martin Marietta's property is also used for other related land uses, including concrete plants and asphalt plants (herein sometimes referred to as the "Related Industries"), which benefit Martin Marietta's mining operations. Martin Marietta possesses considerable mineral reserves yet to be mined at the Carmel Quarry, and one of its prinCipal goals in reaching this settlement, and without which it would not enter into this Agreement, is to protect its ability to mine those reserves from the Carmel Quarry without additional or new ordinances, laws or regulations being imposed on its or its tenants' operations. Brainard's and the City's goals in reaching this settiement are to terminate litigation that has been costly to the City while at the 1/2]76475.4 same time protecting Cannel residents from potentially adverse impacts. that they claim could result from Martin Marietta's proposed expansion of its exi~ting mining operations. On or about November 5, 1997, American and the City entered into a certain Agreement in which American, among other things, conveyed certain land to Cannel for the construction of Hazel Dell Parkway, a copy bfwhi~h is attached hereto as Exhibit "A" and incorporated herein by reference (the "Hazel DelJAgreement"). On or about August 27,2001, The Helen M. MueUer Conservatorship, Mueller, Martin Marietta and the City, by and through its Board of Public Works and Safety, entered into that certain Settlement Agreement with respect to certain property commonly known today as Hazel Dell Parkway, a copy of which is attached hereto as Exhibit "B" and incorporated herein by reference (the "Mueller, Agreement"). The Hazel Dell Agreement and the Mueller Agreement created certain rights in the parties that came to be a part of the current dispute that is now being settled. Moreover, on or about May 17, 2002, Martin Marietta, the City, the BZA, the Kingswdod Homeowners Association, Inc. ("Kingswood"), and Hughey, Inc. entered into a certain Settlement and Release Agreement, attached hereto as Exhibit "C", whereby earlier litigation involving the parties was settled (the "Kingswood Settlement"). ARTICLE I. . Martin Marietta's Special Use Permit Applications On or about January 1,2000, Martin Marietta entered into a long. term lease with Mueller for certain property commonly referred to as "Mueller North Property" and "Mueller South Property", generally located at the northwest comer and southwest comer, respectively, of I 06th Street and Hazel Dell Parkway, in the-City of Carmel, such properties being more particularly described on Exhibits "D-l" and "D-2" attached hereto and incorporated herein by this reference (the "Mueller North. Property" and. the "Mueller South Property"; such properties - 2 - 1/2176475.4 hereinafter sometimes jointly referred to as the "Mueller Property"). Thereafter, on or about December 13, 2002, Martin Marietta applied for five (5) separate speCial use permits to allow various open pit, underground, and sand and .gravel mining on the Mueller Property. Martin .Marietta's application to mine sand and gravel on the Mueller South Property was subsequently approved with commitments by the BZA on or about December 13, 2004. Martin Marietta's application to mine sand ahd gravel on the Mueller North Property was subsequently approved with commitments by the BZA on or about June 30, 2005. On or about April 24, 2006; the BZA denied Martin Mariettats application to conduct surface (open pit) mining on the Mueller South Property (the "Open Pit Application"). Martin Marietta thereafter filed the action denominated as Martin Marietta Materials, Inc. v. Brainard et al., 1 :06-CV -00825-DFH- TB, in the United States District Court for the Southern District of Indiana (the "Federal Suit"). Martin Marietta's application to condtictunderground mmmg on the Mueller South Property is scheduled to be heard by the BZA on July 17, 2008. On that same date, the BZA will vote on whether to accept the terms and conditions of this Agreement. Martin Marietta's application to conduct underground mining operations on the Mueller North Property has not been docketed for hearing by the BZA and will be withdravvn if the conditions of this Agreement are met by the BZA. Further, if this Agreement is approved, Martin Marietta has agreed to certain restrictions on the use of certain of its property north of 106th St., as well as certain restrictions on the use ofthe Mueller Property. ARTICLE II. The Mining Ordinance Dispute Carmel has enacted two (2) separate mining ordinances purporting to regulate Martin Marietta's mining operations. Both have been disputed by Martin Marietta; one . was - 3 - 1/2176475.4 subsequently withdrawn", and a second ordinance, Carmel Ordinance" No. D-] 688-04, as Amended (the "Mining Ordinance"), was initially enjoined by Hamilton Superior Court but the trial court's ruling on the injunctiOIi was reversed by the indiana Supreme Court. See City. of Carmel v. Martin Marietta Materials. Inc., 883 N.E.2d 78] (Ind, 2008). One of the conditions of this Agreement is that the Mining Ordinance shall not apply to the Martin Marietta Property or the Mueller Property; instead, this Agreement and the Statement of Commitments (incorporated herein, infra) shall govern Martin Marietta's mining operations on the Martin Marietta Property and the Mueller Property, as applicable. ARTICLE III. The Eminent Domain Action The parties are presently engaged in other litigation matters that will all be dismissed with prejudice, infra, wit~ the exception of a dispute over the valuation of certain property Carmel desires to acquire by eminent domain for use as a raw water treatment facility (the "Water Plant Real Estate"). The dispute over the Water Real Estate Plant is currently pending in Hamilton Superior Court as Carmel Board of Public Works v. American Aggregates, Cause No. 29DOI-061O-PL-I055 (the "Eminent Domain ActionIP).Martin Marietta has previously disputed BPW's right to take the Water Plant Real Estate, but as a part of this and other agreements, Martin Marietta has agreed to a voluntary conveyance of a portion of such property, subject to determination of its value either by subsequent agreement or in the pending Eminent Domain Action. ARTICLE IV. Contractual Undertakings. Except for the Water Plant Real. Estate dispute, the parties enter into this Agreement for the purpose of resolving any and all disputes between or among them, including but not limited - 4- 112 I 76475.4 to those involved in pending litigation. Without any admission of liability or wrongdoing, and to the contrary, each party hereto specifically denying any liability or wrongdoing, the parties hereto are mutually desirous of settling and resolving all disputes hereinafter described which now exist between them in order to avoid further expenditure of time and/or money. NOW, THEREFORE, in consideration of the foregoing background and recitals, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the mutual promises and covenants hereinafter contained, the City, Brainard, and Martin Marietta - as well as the BZA and Mueller where applicable - hereby agree as follows: ARTICLE V. Incorporation of Recitals The background and recital information set forth above is incorporated herein by this reference as if fully restated herein. ARTICLE VI. Agreement 1. Definitions. As used herein: a. the term "Martin Marietta Property" includes all property owned or leased by Martin Marietta north of East 96th St.and south of East 116th St., both east and west of Hazel Dell Parkway, in Carmel, Indiana, except that it does not include the Mueller Property as defined herein. b. the term. "Mueller Property" means the Mueller North Property and the Mueller South Property, with the centerline of East 1 o 6th Street constituting the dividing line between the two properties. - 5 - 112176475.4 c. except where expressly modifIed elsewhere in this Agreement, the phrase "mining" shall refer t6 the right of Martin Marietta to mine and extract any minerals found on the Martin Marietta Property and/or the Mueller rroperty using any meth~d commonly used for the extraction of the particular mineral being mined, including but not limited to mechanized equipment, drag lines, shovels, blasting, or any similar method or process, together with transportation, conveying, crushing, screening, washing, processing, fabrication, stockpile, and sale of such minerals, and shall include any other Operations performed at any part of the Martin Marietta Property or the Mueller Property as of the date of this Agreement. 2. Remand to the BZA. The BZA agrees that the denial of the Open Pit Application, for which relief is sought in Count IV of the Federal Suit, shall be remanded to it for the limited purpose of evaluating whether to settle the Federal Suit by accepting the conditions of this Agreement, which may include taking a vote thereon in a public meeting conducted for that purpose by the BZA. It is expressly agreed and understood by all parties . hereto that the remand does not obligate the BZA to vote favorably on the Open Pit Application or to accept the conditions of this Agreement and that the BZA retains whatever laVl-ful discretion it otherwise would have in the absence of this Agreement. The BZA shall reopen the record only for the limited purpose of considering the acceptance of this Agreement, having due regard to the background and recital'information incorporated herein by reference and shall not reopen the record generally for the taking of further evidence. If the conditions of this Agreement are accepted by the BZA, then the BZA shall proceed to hear and decide the Mueller South Property Underground Mining Application, promptly and in accordance with its rules of procedure, within the time requited by IC 36-7-919(e). - 6 - I/2J764754 3. City Role. Carmel shall support acceptance of the conditions of this Agreement by the BZA, and shall recommend that the BZA give favorable consideration to the. Mueller South Property Underground Mining Application in any hearing before the BZA (or otherwise). Further, the City, in the Kingswood Settlement, agreed not to object to a reduction of the buffer to one hundred fifty feet (150') on the Mueller North Property, pursuant to a variance and modification of the setback Commitments made in BZA Docket No. 050] 0021-SU which may be approved by: the BZA, and the City reaffirms that agreement herein. Nothing contained herein, however, shall prevent City employees who act as staff for the BZA from performing any evaluation or duty required of them in consideration of a request to reduce the buffer- on the Mueller North Property. .4. Conditions Precedent. The obligations of all Parties to this Agreement are expressly conditioned on the following conditions precedent: a. execution and delivery of this Agreement by all parties hereto; b. . acceptance of the conditions of this Agreement by the BZA, which shall include the BZA's discretionary approval of the Open Pit Application and issuance of the requested Special Use .Permit, subject to the Statement of Commitments attached hereto as Exhibit "E II; c. approval by the BZA of the Mueller South Property Underground. Mining Application as set forth in the application and according to the Statement of Commitments attached hereto as Exhibit "F" and filed in BZA Docket No. 08020032- SU; and d. a consent order to be entered in the Federal Suit clarifying that this Agreement, including the respective Commitments, shall govern Martin Marietta's mining operations at the Mueller North Property. and the Mueller South Property and - 7 - 1/2176475.4 specifically referencing the limited applicability of the Mining Ordinance referenced in Article VI., Section 6 hereafter. 5. Dismissal 0/ Pending Lawsuits. Except for the Eminent Domain Action, the relevant Parties agree to dismiss any lawsuit currently pending between them, whether in Federal or State Court, with prejudice, other than in respect of the Consent Order in the form of Exhibit "G" attached hereto which is to be entered in respect of the Federal Suit. 6. Compliance with Laws. Martin Marietta shall comply with all currently existing City ordinances, including the Cannel zoning 'ordinance as it presently exists (excluding the Mining Ordinance, which the Parties agree shall not apply to operations on the Martin Marietta Property or the Mueller. Property), except to the extent that Martin Marietta's vested and legal nonconforming use and other rights recognized hereunder supersede or otherwise make the same inapplicable to the Martin Marietta Property. 7. Withdrawal of Certain Application; No Further Applications/or Mueller North Property. Martin Marietta shall withdraw its application for a special use permit to conduct underground limestone minjng on: the Mueller North Property, and neither Martin Marietta nor Mueller shall file any further applications with either the BZA, or other local, state or Federal agencies, to conduct mining oil the Mueller North Property. Provided, however, that Martin Marietta retains the right to apply for the buffer reduction described in Article V., Section 3 . above, and the right to apply for any permits reasonably necessary or convenient to conduct mining operations allowed under any previously issued permits or to facilitate any operations lawfully conducted on the Mueller North Property. Such permits, by 'way, of example only, include operational permits, such as air, grading, building, water, or storm water management, or A IF permits and/or approvals. This provision shall not permit the introduction of any new mining or Related Industry use not heretofore conducted on the Mueller North Property, it being - 8 - 1/2 I 764 75.4 the intention that stone processmg, asphalt, concrete, and Related Industries plants are not allowed on the Mueller North Property, anything else herein to the contrary notwithstanding. Provided, further, that the placement of a dredge on Mueller North Property pursuant to a previously issued Special Use Permit is not prohibited. Except where a provision of this Agreement explicitly references a previously approved Special Use Permit and waives rights under it expressly, nothing contained herein shall be deemed a waiver or release of any rights under any prior Special Use Permit, including but not limited to those allowed under the following BZA Dockets: (i) Mueller South Sand and Gravel - 04040024-SU (ii) Mueller South Sand and Gravel (modified)- 05060014-CA (iii) Mueller North Sand and Gravel- 0501 0021-SU (iv) Carmel Sand Plant- UV -2302 (v) Mueller South Underground/Limestone - 08030032-SU (vi) Mueller South Limestone - Open Pit - 05090003-SU Further, nothing hereunder shall be deemed to prohibit a use expressly allowed under a Special Use Permit issued hereafter. - 8. No New Land Uses; Martin Marietta Property and Mueller South Property. Martin Marietta shall add no new land -Uses on the Martin Marietta Property or the Mueller South Property, except in compliance with all local and state regulations, including but not limited to . all existing Carmel zoning ordinances. Should Martin Marietta seek approval-for any new land uses, the City an~/or the BZA, as applicable, shall process any necessary applications for approvals in accordance with all applicable laws and niles, and approvals will not be unlawfully withheld, conditioned or delayed by the City and/or the BZA, as applicable. For purposes of determining what is anew land use on the Martin Marietta Property only, mining arid Related - 9 - 1/2176475.4 Industries do not constitute new land uscs, nor does the addition, relocation, reconstruction, maintenance, replacement, repair or upgrade of plants or structures on Martin Marietta's Property. Therefore, this Section does not prohibit additional asphalt, concrete, cement,' or limestone proc~ssing plants, or upgrades, modifications, enlargements, alterations, rebuilds, and similar matters on the Martin Marietta Property, but it does prohibit such uses or matters on the Mueller South Property above ground, in the Open Pit operation, unless they are duly approved as described ,above or allowed under Article VI., Section 19 hereof. 9. Surface' Blasting. Surface blasting on the" Mueller South Property shall be conducted and monitored as provided in the Statement of Commitments for the Open Pit Application. 10. Annual Fee. Martin Marietta shall pay the City an alIDual license fee of Ten Thousand Dollars ($lO,OOO.OO) to defray the City's cost of monitoring its compliance with this Agreement and applicable laws. Said amount shall be prorated from the effective date of the grant of the Open Pit Application, and thereafter due annually upon receipt of an invoice delivered by the City on or after January 15 of each calendar year. 11. Donation of 'Real Property. Upon completion of sand/gravel extraction on the Mueller North Property, or on such earlier date as agreed upon by MueHer, Martin Marietta and the City, Martin Marietta and Mueller .shall donate the re"al estate described on Exhibit "H" hereto to the City or the City's designee for use solely as a public water supply resource and conserVation space only. Further, the deeds conveying such property to the City or the City's designee shall contain a reservation of rights in respect of all minerals, including but not limited to sand, gravel, limestone, aggregate in any form, oil, gas, semi-precious and precious. minerals and metals. None of the property described in Exbibit "H" shall be open to the public or used as park space. Any breach of this covenant shall result, at the election of Martin Marietta, in the - 1 0 - 1/2176475.4 reversion of all such land to the grantor thereof. This covenant and agreement shall run with the land and shall be binding on Martin Marietta, Mueller and the City, and their and its respective successors and assigns. The deed by which such property is conveyed to the City or its designee shall so indicate the above described limitation on use, reservation of interests, and right of reversion in favor of Martin Marietta and Muelle(. 12. Assistance to Kingswood. ,Consistent with the City's goal of protecting Cannel residents, the City has agreed to reimburse Kingswood for attorneys' fees in the amount of Thirty Thousand Dollars ($30,000.00), which enabled Kingswood representatives to participate in the Court-sponsored settlement negotiations in the Federal Suit. 13.. Additional Signage in Kingswood Subdivision. Consistent with the City's goal of protecting Carmel residents, the City has agreed to provide additional sigIi.age in the Kingswood subdivision in the amount of Thirty Thousand Dollars ($30,000.00). 14. Acknowledgment of certain of Martin Marietta's and Mueller's Underground Mining Rights. Under the Hazel Dell Agreement, Martin Marietta (through its predecessor, American) retained the right to mine underground certain parcels conveyed to Carmel and defined in the Hazel Dell Agreement as the "Parkway Real Estate" and the "Parkland Real Estate". In addition, pursuant to the Mueller Agreement, the City agreed to provide Martin Marietta and Mueller an easement for purposes of mining the mineral resources situated within the Parkway Real Estate and the Parkland Real Estate. Carmel .hereby confirms and acknowledges Martin Marietta's and Mueller's right to conduct underground mining onsueh parcels without obtaining any permits or authorizations from Carmel, the BZA, or any other board, department, or other person or entity associated with Carmel, until the expiration of the "Term" described in Section 8(b)(ii) of the Hazel Dell Agreement. - 11 - 1/2176475.4 Carmel further confmns Martin Marietta's and Mueller's right, pursuant to the Hazel Dell Agreement and the Mueller Agreement, to construct one or more tunnels or portals in an area south of East 106th St. to access the underground limestone reserves in the Parkway Real Estate and the Parkland Real Estate, The design, construction, mamtenance, repair and/or replacement of the tunnels and/or portals shall be conducted in accordance with the Hazel Dell Agreement and the Mueller Agreement and shall not be subject to the City's approval (except that Martin Marietta shall give notice to the City not less than thirty (30) days before commencing construction thereof), and shall be at Martin Marietta's sole cost and expense. Martin Marietta hereby agrees to defend, indemnify and hold Carmel and its agents, representatives, consultants, and employees harmless from and against any and all claims by third parties against Carmel seeking damages or expenses, and any out of pocket costs or expenses incurred by Carmel and arising in any way from Martin Marietta's construction, operation, use, or maintenance of the tunnels and/or portals, except such claims as may arise from acts by Carmel or its agents, representatives, consultants, or employees that are willfully or grossly negligent, or those for which Carmel has immunity from liability. 15. Continuing validity and enforceability of Hazel Dell Agreement. Carmel and Martin Marietta, as successor to the interest of American, hereby confirm and agree that the Hazel Dell Agreement is binding, valid and enforceable in accordance with its terms 16. Vested Mining and Operational Rights; Covenant Running with the Land. Carmel and Martin Marietta hereby reaffirm the provisions contained in Section 8(h) of the . . Hazel Dell Agreement, which is incorporated herein. Martin Marietta has negotiated certain terms of this Agreemerit, agreed to engage in certain property conveyances voluntarily, and released certain claims in reliance on the agreements herein and in the Hazel Dell Agreement, in particular the covenants running with the land as described in Section 8(h) of the Hazel Dell - 12 - 1/2176475.4 Agreement. Martin Marietta will organize and conduct its mining operations in the future in reliance- on this Agreement and the Hazel Dell Agreement. Finally, Martin Marietta has agreed to waive certain vested rights it claims to mine north of East l06th St. and west of Hazel Dell Parkway, including a claimed right to engage in open pit and underground mining on all land it owns or leases north of East 106th St. and west of Hazel Dell Parkway, and to Withdraw its application to mine underground on the Mueller North Property. For these, and other reasons, including the many years of mining and other operations Martin Marietta has conducted on site, Martin Marietta has vested rights to engage -in mining on property it owns or leases in accordance with the terms hereof, the commitments; permits arid authorizations contemplated hereby and/or referenced herein, and the Carmel zoning and other ordinances as they presently exist. Therefore, Carmel hereby acknowledges and agrees that Martin Marietta shall not be required to obtain any additional land use, special use, improvement location, or other permits to engage in. such mining and other operations as are permitted hereunder, except for the permits described herein, and necessary construction related permits, which shall not be unreasonably withheld, conditioned or delayed, and shall not be withheld based on any land use regulation or other restriction enacted hereinafter by the City. Further, except for regulations of a general character applicable to all businesses in Carmel, and which do not interfere materially with lawful operations on the Martin Marietta Property' and the Mueller Property, Martin Marietta's operations on these properties (as defined) shall not be subject to and shall be exempt from future laws, ordinances, or regulations, including but not limited to any "mining ordinances," current or future, and regardless of whether such ordinances are passed pursuant to Ie 36-7-4 (the Local Land USe and Zoning Law), any other state law, or the City's general police power. - 13 - 1/2176475.4 The City acknowledges that Martin Marietta has and is conducting mining operations on its real estate, including that portion of its real estate from which the Water Plant Real Estate will be conveyed, and on the Mueller Property. Subject to the limitations agreed to by Martin Marietta in Article VI, -Section 8 hereof, the City also acknowledges that Martin Marietta, and its successors and assigns, will continue to conduct mining operations on the Martin Marietta Property following the execution of this Agreement, and on such parts of the Mueller Property for which it has previously been issued a special use permit or is issued such a permit pursuant to the BZA proceedings contemplated by this Agreement, or otherwise has a right to mine under agreements entered into previously. Carmel is familiar with the Martin Marietta Property and Mueller Property owned or leased by Martin Marietta and its operations thereon and described hereinabove, has conducted inspections of -it in the past, and acknowledges that there is an adequate factual basis for the establishment of the vested rights recognized hereunder. Based on its inspections and opportunity to inspect operations on the Martin Marietta Property and Mueller Property, Carmel hereby acknowledges that it has had an adequate opportunity to determine whether mining operations as they presently exist and are conducted on property o\\-ned or leased by Martin Marietta comply in aU material respects with all applicable Carmel laws and regulations, and hereby confirms that, to the best of its knowledge such operations are in compliance in all material respects. Carmel further acknowledges that this Section 16 is an essential component of this Agreement for Martin Marietta and this Agreement would fail of its essential purpose for Martin Marietta if this Section were not enforced in accordance with its terms and construed broadly to eflectuate its purpose of confirming that the existing operations and such additional operations as are contemplated hereby on the Martin Marietta Property and the Mueller Property are vested - 14 - 1/21764754 against and protected from interference from subsequently adopted laws or regulations, other than those specifically excepted herein. In any action to enforce this Agreement, Carmel shall not be entitled to claim that this Agreement or any part of it, or Section 8(h) of the. Hazel Dell Agreement, is unenforceable because of Carmel's legislative powers, its police or zoning power, or any general health, safety, or welfare power.' Provided, however, that nothing contained herein shall prevent Carmel from enforcing its laws and regulations as they presently exist (excluding the Mining Ordinance, which the Parties agree shall not apply to Martin Marietta's mining operations on the Martin Marietta Property or the Mueller Property). 17. Preservation of Remedies. The parties disagree over the remedies available for a breach of the' Hazel Dell Agreement and nothing in this Agreement, the negotiations leading up to it, drthe fact of entering into it, is intended to preserve or to waive any available remedies under such agreement, it being the express agreement of the parties that whether any remedies otherwise available under the Hazel Dell Agreement have been waived or preserved be determined independently from all such matters. 18. Representations and Warranties of the City. The City represents and warrants to Martin Marietta as follows: a. The City is a municipality duly constituted under the law of the State of Indiana and has all requisite power ,and authority to enter into and consummate the transactions contemplated by this Agreement; b. The execution and delivery ofthis Agreement by the City has been or will be duly authorized by all necessary action ofthe City and Brainard; and c. The execution, delivery and performance of this Agreement will not conflict with any applicable provision of any federal, state or municipal law or any -15- 1I2 1 76475.4 agreement to which the City is a party. The obligations of the' City set forth herein are enforceable according to their terms. 19. Representations a,.,d Warranties of Martin Marietta. Martin Marietta represents and warrants to Carmel as follows: a. Martin Marietta is a corporation duly constituted under the law of the State of North Carolina and has al1 requisite power and authority to consummate the transactions contemplated by this Agreement; b. The ex:ecution 'and delivery of this Agreement by Martin Marietta has been or will be duly authorized by all necessary action of Martin Marietta; and c. The execution, delivery and performance of this Agreement wil1 not conflict with any applicable provision of any federal, state or municipal law or any agreement to which the Martin Marietta is a party. The obligations of Martin Marietta set forth herein are enforceable according to their terms. 20. Certain Restrictions on Mining Operations North of l06th St. or on Mueller South. Subject to Article VI., Section 8, Martin Marietta shall conduct no mining operations within the currently existing zoning jurisdiction of Carmel north of 106th S1. and west of Hazel Dell Parkway, other than sand and gravel mining by means of a dredge, and such mining as may 'be necessary to develop the tunnels and/or portals referenced in Article VI., S,ection 14 above. Further, the Mueller South Property shall be used only for open pit and underground mining (including conveyers with either or bQth operations), and sand and gravel mining, and shall not be used for any other mining uses, including but not limited to the placement of any part of the crushing plant on it, other than the location of such a plant underground on the Mueller South Property. - 16 - 1/2176475.4 21. Breach and Cure. Notice of any alleged breach of this or any other. agreement between the Parties shall be given in writing to the other party. Thereafter, the party allegedly breacbing shall have fifteen (15) business days to cure such breach, or if it cannot be cured within such time, to commence to cure the breach and pursue the cure to completion diligently and without delay. If the breach is not so cured the non..:defaulting party shaH be entitled to exercise any remedy permitted by law or this Agreement. 22. Enforceability. This Agreement is intended to be a binding waiver of certain rights as claimed by Martin Marietta, or as may be claimed by Mueller, in exchange for the . City's recognition and retention of other rights, and shall be enforceable as such to the maximum extent allowed. by law. It is specifically inteBded that all Parties to this Agreement shall be entitled to rely on it and shall be entitled to enforce it according to its terms, including Exhibits to it, which are hereby made a part of this Agreement; however, enforcement of any Commjtments entered into by Martin Marietta in cOlll1ection with any issuance of a special use permit shall be enforceable only in accordance with their own enforcement provisions, and therefore, no breach or violation of such Commitments shall be considered a breach of this Agreement. The waiver and retention of rights hereunder shall rim with the properties referenced herein and are made expressly bil1ding on such properties and on all successors and assigns owning; leasing or conducting operations on the properties. Each of the parties agrees that if a third party challenges any part of this Agreement or any approval or permit contemplated hereunder, they shall each support and defend the continuing validity arid enforceability of this Agreement and the permits and approvals issued hereunder and further agree that they will not take any position that is contrary to the terms of this Agreement. - 17 - 1/2176475.4 23. Attorneys' Fees and Costs. In any litigation between the parties to enforc.e any provision or right under this Agreement, the unsuccessful party covenants and agrees to pay to the successful party all costs and expenses incurred by the prevailing party in connection with the litigation, including, but not limited to, reasonable attorneys' and paraprofessional fees. 24. Addition and Replacement of Equipment. The. rights recognized and retained hereunder by Martin Marietta include the right to upgrade, add, rebuild, modify, or replace equipment or structures, so long as such equipment is utilized in a manner allowed by the terms of this Agreement on the particular parcel at issue. 25. Non-Mining Uses. This Agreement shall not prohibitor exclude other non- . . mmlllg uses of ~e Martin Marietta Property which may from time to time be allowed in whatever zoning category such property is classified, subject to Article VI., Section 8 of this Agreement. 26. .Issuanc.e of Permits. Martin Marietta, and its tenants, licensees and its and their successors and assigns, shall be entitled to the issuance of a zoning permit, improvement location permit, building permit or ,.other document signifying zoning compliance by Carmel, together with other necessarypetmits for structures, activities, or equipment allowed under the terms of this Agreement so long as the construction requirements set forth in Carmel's building code are met. No special use permit, mining overlay, or other land use permits shall be required for the issuance ofa zoning, improvement location permit, building permit, or other permit for any land use that com.plies with this Agreement. 27. No Expiration of Rights. It is expressly recognized that Martin Marietta does not mine or use all of its property at one time and that it would be undesirable to the community for it to engage in mining everywhere on its property simultaneously. As a result, it is acknowledged that the vested rights retained hereunder shall apply to the entirety of the property - 18 - 1/2176475.4 for which they are recognized, whether all of such property is currently or then in active mining use or not, and shall not expire or otherwise be diminished unless expressly abandoned or limited in a subsequent writing by Martin Marietta. Martin Marietta's rights hereunder shall' be evergreen and shall not expire or be deemed abandoned or waived except by a writing expressly stating so and signed by Martin Marietta. 28. Inapplicability of Mining Ordinance. The Parties agree that the Mining Ordinance shall not apply to Martin Marietta's mining operations on the Martin Marietta Property or the Mueller Property. 29. Waiver and Release of Claims. In consideration of the agreements set forth herein, the City, Brainard, and the BZA on the one hand, and Martin Marietta, and Mueller on the other hand, for themselves and each and every of their respective affiliates, successors, heirs, executors, administrators and assigns, and their respective current and former officers, directors, shareholders, partners, members, affiliates, employees, agents, or representatives (collectively, the "Releasing Parties"), do hereby covenant and agree to remise, release and forever discharge the other, and any and all ~f their officers, directors, shareholders, partners, affiliates, members, employees, agents, and representatives, both past and present, both in their capacity as officers; directors, shareholders, partners, members, employees, agents, representatives, aft1liates, and individuals, and their successors, heirs, executors, administrators and assigns (collectively the "Released Parties"), of and from any and all known or unknown claims, cross:..claim.s and counterclaims, . and any and all third-party claims, cross-claims and counterclaims, which have been or could have been alleged or which arise out of the facts or matters alleged in the Federal Suit, as well as from any and all known or unknown debts, claims, demands, actions, causes of actions, suits, dues, sum and sums of money, accounts, reckonings, bonds, specialties, covenants, contracts, controversies, agreements, promIses, doings, omissions, variances, trespasses, - 19 - I/2176475.4 - 20- I/2176415.4 I/2176475.4 If to the City of Carmel: City of Carmel Office of the Mayor One Civic Square Cannel, IN 46032 With a copy to: City of Carmel Attention: Carmel City Attorney One Civic Square Carmel, IN 46032 If to Martin Marietta: Martin Marietta Materials, Inc. Attention: John Tiberi, President - Mideast Division 11405 N. Perinsylvania, Suite 250 Carmel, IN 46032 With a copy to: Martin Marietta Materials, Inc. Attention: Helen Haynes, Associate General Counsel 2710 Wycliff Road Raleigh, NC 27607 and: Ice Miller LLP Attention: Zeff A. Weiss One American Square, Suite 2900 Indianapolis, IN 46282 and Phears & Moldovan Attention: H. Wayne Phears 3399 Peachtree'Road, Suite 2050 Atlanta, GA 30326 - 21 - If to the BZA: Carmel Board of Zoning Appeals Attention: Chairman One Civic Square Cannel, IN 46032 With a copy to: Carmel City Attorney One Civic Sq"uare Carmel, IN 46032 If to Mayor Brainard: Mayor James Brainard One Civic Square Carmel, IN 46032 With a copy to: Carmel City Attorney One Civic Square Carmel, IN 46032 If to Mueller: E & H Mueller" Development LLC Attn:, Wilbur Tynei, Jr., Managing Member 16404 Oak Road Westfield, IN 46074 With a copy to: Church, Church, Hittle & Antrirti " Atln: Michael Antrim, Esq. P.O. Box 10 Noblesville, IN 46061-0010 32. Amendment. This Agreement may only be amended by an instrument in writing signed by the parties hereto. 33. Entire Agreement. Except for the: (1) Hazel Dell Agreement and related documents, including but not limited to deeds; (2) the Kingswood Agreement; (3) the Co- existence Agreement entered into in connection with the Water Plant Real Estate; (4) the I/2 I 76475.4 - 22 - - 23 - 112176475.4 Notwithstanding the foregoing, each of the Recitals and Exhibits referenced herein are incorporated and expressly made a part hereof. I/2 I 764 75.4 - 24- CARMEL BOARD OF ZONING ::p~~ I &1. ame~. Ha~ins Jb By. . .&i.?-JZ~l--,A Ear Plavchak By: By': :- // . ~/ By: MARTIN MARlETT A MATERIALS, INC. By: Roselyn Bar, General Counsel, Martin Marietta Materials, Inc. l/21764754 CITY OF CARMEL -. E & H MUELLER DEVELOPMENT LLC By:(j)~ ~i:t.f:7- ' . . .. Wilbur Tyner, r., Managmg Member Its: . s individual and personal capacity MICHAEL P. HOLLffiAUGH Y - 25 - 217/17/2808 13:01 MHt-<!/lN MH~lt::1 fR U:.bHL ""' 'jUUb'1:J41::1~.:5 CARMEL BOARD OF ZONING APPEALS By: James Hawkins By: By: Earlene Plavcl1ak Madeleine TOITe9 By: Alan POlaSnik By; Jay Dorman MARTIN MARlETT A MATERlALS, INC. BY:~~ Roselyn Bar, General Counsel, Martin Marietta Materials, Inc. il 'I I [f2J 76475,4 TI II -t ,.., _ ""')r.::Ii.:10 ., A' 1 "7 Cl1Cl ,",00;> /1<::,<:: CITY OF CARMEL By: James Brll.inmd, Mayor Attest; Douglas Haney, City Attorney E & fT MUELLER DEVELOPMENT LLC By: Wilbur Tyner, Jr., Managing Member Its: JAMES BRAINARD III his individual and personal capacity MICHAEL P. HOLLIBAUGH Director ofUle Department of Community Services . - 25 - q<:;',' NU.::rlc: lr\:'l~ C IA-:l SEP, 11, 2002 11: HAM BARNES THORNBURG 317-231-7433 NO. 046 P. 6 ....,... ~.l':l . ...."._~ ,.. ~. , HAZEL DELL PARKWAY AMERICAN AGGREOATES CORPORA.TION APPROVE FOlW Br" AGREEMENT THIS AGREEMENT C Agr=nent.~ is made and entered into Uris .ftJ\ day of November, 1997. betWeen the Cl'l'YOF CARMEL, INDIANA (hereinafter referred to as the "City") arad AMERICAN AGGREGATES CORPORATION. a Delaware corporation (bereinafterreferred to as "American"), WITNESSETH; ,VJHER.EAS, the City ha.s prev.i.owLy COmelJlplated the constl;'UCtioD of a road to be knoWDasEaze1 Dell Parkway (the "Parhvay") in a location that would have utiliied the existirig Oray ROad as a. sotithwanl extension of SUCb road to 96tb Street; WHEREAS. the City wishes to reduce by approximately one mile the amount of road.way being built and continua.Uy maiI1taiaed by not bringing the Parkway we$t to_Gray Road at lOrSch Street but continuing due Soum, thereby substantially rectucing construction and ongofr.lg main:i:enance costS (the location isshoWII on Exh.ibit "A" attached hereto); ,,-' VlHEREAS, the City funber- wisb~ to reduce COD5trucriOD and ongoing costs by not having to enlarge Gray Road south of l06rh ~trec:t;. WHEREAS, American..a.ndits pJedecessors bave conducted mining operation.s in me .area for several years and pos~ess considerable mJt\eta1 reserves in the location no..... . . contemplated for t:;oI1Stl"Uction of the PaJ."kWay; WHEREAS, there now exists at. American'::; plSllt located. at 96th Srreet (the "96tl) Street Plant~), cen;ain uses wl'tieh are sUbordimlr: to ,fWd which benefit .AJn.eriean's raining operatiow, all of which uses have been in existence-for a cODSid-erable nwnber of yes:rs; WHEREAS. both the City'S acquisition of the real estate needed for the Pukway (hereinafter described and defined as the "Parkway Real !state") and the proposed roUte of the Parkway will ha'\re sigDifieant bnpaa on American's mlniDS operatio:us and ici reserves all to American I s detri:Qj.ent and damage; 1 EXHIBIT A .,7:':. fI;i'-li SE? II. 2Q02 11: l.4AM BARNtS THORNBURG 317-231-7433 NO, 046 P. 7 'WlmREAs, an ~tionala.ppropriation of funds was made by The City ro pay for, among otl1er tbings, the expense of right-of-way acquisitions fOr the Parkway, pursuant to Ordioa:nce No. ~-1286-~7 passed on AprU 21, 1997, which Ordinance appropriated $4,064,100.00 for right-of-way aequisition; WlIEREAs, the Bostd of the Public Works and Safety of tile City 3IId me BOard of Commissioners of Hamilton COu.n~,ladiana, .ha....e entem;J into an Iarerlocal Agreement (see attached Exhibit lOB") under which the City hIlS d1epower and respOIlS1bililY to ~nite all right-of-way (0 cOUStruct the Parkway (except for cert3m parcels contiguotl's t(l 1~ Sll'eet), aad the CoromOD Council of cbe Ci~ has approved such Iatcdocal Agreemelll by tbe :passage of Re$ohnion No. CC-Q9-02-97-02 OIl SepTeJ1lber 2, 1997; WHEREAS. pnrsuantto Ie 32-11-1 the CilY now has the right to exel;'ci.se its power of eminent domain [0 acquire rbe real estate from .American and American has the right to defeIid its imerests in"any COnde.tO.Wl.tioD action that the Ciry might file, but both patties here(o d5sire to avoid the expeooe. delay and risk inherent in filing Or defending a condemnation action.; WHEREAS. the City now desires to purchase frolU Am,encllU the Parkway Real"Eslate for the purpose of constructing the P3Ikw"ay and American is now wiUj,ng to $eU the Parkway Real ESUl.te to the City, all upon the terms ~ conditions described hetein atld in. lieu of co ndemnation; WHEREAS; the e:ue~ion of lhc Parkway SQuthwEird to 96th Strc::(;t Illon,g the route shown OD Exhibit "A" (ra~~t:ban along Gray ROad) has presented additional wu.es IU1d additiOnal damages to .~rican, meNding but Dol limited IO traffic $s.fety issues; which r:he parties. have now resQlved; and WHEREAS; the partie:! desire to incorporate all of their agreements regarding the various matters into lilts comprehensive agreement. NOW, THEREFORE, in. CODSide:rat.i6n of the mutual COVenants and promises conraio,ed herein, the pa..mes hereto agree as foUows: 1. Sale and Purc.ha:se of Real Estate. Subject to me satisfactioD of the conditions set fonh in Section, 4 below . Amenea.n shall sell and convey to the City BOO the City shall purchase from American at Closing (as hereinafter tWfined) title to the following teal estate in me wIere;st set forth beJow: 2 ,SUo 11. 2002 11: 14AM BARNES THORNRURG 317-231-7433 NO, 046 P. 8 ..... .~~ij~ ,. 1/ .~I , . PARCEL NO.1 Right of Way (See aaacbed. ExhIbi~ "C") . " PARCEL NO. lA Right ofWl1-Y (See aaactled ExlDbit "e") PARCEL NO_ lB Right otWay (See attached Exlu"bil "C") PARCEL NO. lC~ Right of Way (See attached Exhibit "'e") PARCEL NO. Ib Right of Way (See attached. Exhibit "e") PARCEL NO. IE Right of Way (See attached Exhibit "CD) PARCEL NO. IF Temporary WWfor WorkiI1g Area (See attached Ex.h1'bk "COo)' PARCEL NO. 10 Temporary RIW for Worki:cg Area (See atr.aclled Exhibit "'C'II) PARCEL NO. lH Temporary 'RfWfor Driveway Construction (See anacbec1 Exhibit "'C") PARCEL NO. 11 Temporary RlWfor CbAuneI Clearing (See attached Exhibit UC") PARCEL NO. lK Right of Way (SecatClched Exhibit "en) PARCEL NO. lL R.i.gbt of Way(See attached Exhibit "e") .:PARCEL NO. 1M Right of Way (See attached Exhibit 'Ye") PARCEL NO. IN Right ofWay(See anached. Exhibi[ "e") PARCEL NO. IP Right of Way (See attached. Exhibit "e") PARCEL NO. iQ . lUght of Way (See attached EXht"bit "e") PARCEL NO, lR. Temporary RlW for Driveway Construction (See attached Exhibit "C") All of such real esta.te is hereinafter referred to-as the .Park:w'ily Real Estaten. Such conveyance shall he free and. cleat of any and all Ue:o.s, encumbr.a:cces, ~emmtS and restrictions excep~ those matterS whic.h are reflCf;ted in the title ~ com:mitInel1t issued pursuant to Section 4{b) a:M which are not objected to 1)Y the City and 8h8l1 be subject to the reservation by American ofsubsurfaee tnining tight'$ ~ described iri SectiOD 8(b) below 3 SEP. .11. 2002 11: 14AM BARNES THORNBURG 317-231-7433 NO, 046 P. 9 ':~M !f.:t.,..-.: and the COVeca.n[running with tbe Parkway Real Estate as desaibed and set fonb .in Section 8(g) below. 2. Compensation. The Ci~ shall pay as Compensation for irs acquisWon of tlIe Parkway Real .Estate from Am.etican and as compe.osatioXlfor we damages sustained by Atnetican as a result of the Cityls acquisidoQ of the Parkway Real Estate and the location of tbe inrersectinD of the Parkway with 96th Street; the sum of Two Million Four Hundred Thousand Dollars ($2,400.000.00) (beremafterreferred [0 as the "Compensation AmoumU). :3. Closing. (s.) The ttan-ction COntemplated by this Agreement 8.balJ~e consumm.att;a at a closmg to he held at such tin1e and place as I:hepwes bereto shall agree in writing, bur in no event tater than November 5, 1991 (the "ClosingU). (b) At C105ina. American sball exeCUte and deliver to the CitY a Warranty deed conveyiIJg title to the Parkway Real Estare subject to the exceptions a:ad reservatiODs permitted by this Agreement. American shall also deliver the deeds relating to the Udlity Plant Real Eswe (as dermed hen::inafter) and me ParJqand Real Estate (as defined aereinafrer). (c) Within thirty (30) days after Closing, the City shaH. de-liver to A~erican in the form of a check; certified qheek, wire transfer Or other manner approved by Ao:1eriean, payment: of Eighr B:u.ndred TweDty Tb.ousancl Two Hundred Forty DOllars .($820t240.00) (the Compensation Amou.u.t less O~ MilUOll Five H~dred Seventy Nine Thousand Seven Hundred Sixry and DollOO's Donars (~1,579,760.00) previously delivered to American pursuant to tb.at certain dOC1.J.tUent enti~ed."Temporary G(~ of Ri,g.l;lt of Entry" (the "ROE") exec-oUted by American on or abOUt September 18, 199'1, a.nd executed by the City on or abOUt September 21, 1997, a copy of wliith is attached hereto as Exhibit "Db). (d) Pos;o;ession of the Parkway Real Estate. Utility Plant Real EslaLe. &>>d Par.ldand.&eal Estate shall be deUvered by American [0 rlle City ar Closing. 4. Conditions to Transactions. The tI'111Sactions a:o.d covenantS contained in this Agreement are expressly subject to the satisfaction of the following conditions Within thr; time periods stared; (a) The City :!hall Obtain, at the City's expense, wirhin thiny (30) days of the (late of execu:tion of this AgfeeIQeXlt a survey of thePa.rkway Rea.! Estate, Utility Plant.Real Estate, 4 ...:';=:: \ ,. ~I ' I .,10.. , SEP.11. 2002 11:14AM &ARNES THORNBURG 317-231-7433 NO, 046 P. 10 and Pa:d1and Real Estate .s.atisfn.ctory to me Citycerii:fied as of the current: diUe showing aU , easements located th~eon. whicb e&lementS s:!uUJ be subject fa the City 's appr<:lval. If the City objects to any matr.f!ts disclosed by said survey, then. within fifteen (IS) days after receipt of said survey, the City shau notify AmeriCan in writing of such objections. Xf AInerica.u does notcoriect said objections to Ihe City's satisfaction witbJb. fifteen (15) days of receipt of notice , of such objectiom by American, the City's Bole and only ~emedy is !O either waive itS Objections and proceed. to Closing or tennin.ate thiS Agreexnent without further liability or obligation or claim(s) fur (jjunage(s) of either party. A copy of the survey shall be delivered to American no later than five (:5) days after , ~ecejpt of we smvey by the Ciry. and American shall bave th~ right to approve the leg2i1 d.escdptioDS of !:be ParkwayReaJ Estate, Utility Plant Real Estate, and Parkland Real Estate prio( to Closing, which approval shall nor be UlJ,feasonably wirhhe1d, conditioned or delay eo. If American fails to approve or disapprQve the lepI descriptiOOs witb.m five (5) days after delivecy of the survey. the descriptiotlS shall be deemed to have been approved by AmedC?IL (b) The City shall obtain at the CiJ:YI$' expense It commi'lXnent fo~ an OWDers policy of tide insurauee to be issued within fifteen (lS) da.ys of rb,edate of executioll of this Agreement, pursuant [0 which .a title insurance compatly (selected by the: City) will agree to insure good, marl<:erable ud indefeasible title to The Parkway Real Estate in the name of the City for me full amount of the Compensation A.JlJ.ount, upon delivery of a warrantY deed IO the City. Such commitm.eo.nbaU provide fOrtbe issuance ofa final title insurance policy in ALTA Owner's , ' . Form B-1990 upOn Cl?sin~,. The City $hall ,have a per~od of fifteen (5) days after receipt of the eommiunent to review such commitm.enI audto' deliver to AmeriC3J1 in writing such objections as the City may have to thecol'rl:l:Oitment ("Title Defects"). If no written DOrice of di.sapproval (or approval 1s given: subject to e:ertam exceptions) is delivered by the City to American within the aforesaid fifteen (15) days, tl;1.e Commitment shall be dee:med approved aDd the Tide Defects may appear as ex.ceptionS intheowner'~ policy of title msl.U'ance and in the wan:aory deed, A~rican shall, at Ameril;an'ssale cost aI1d expense, have tmeen (15) days fOllowing. receipt of notice of the City'g objections to CUte any Title DefectS with res:pect to which the City has delivered written objections. If American fails to cute such objectiOnsl tile City's sole and Qcly TC1;IJedy is to either waive itS objection.sand accept such title aa American s -. .~ ."L ..,,) , ';..J SEP. 11. 2002 II: 15AM BARNES THORNBURG 317-231-7433 P. 11 NO. 046 can deliver and proceed to Closing or terminate this Agreement without furT.her'liability or obligation or claim(s) for dam.a.ge(s) of eitb.erpany. 5. T~porary:Right ot Entry. American ac.lcQ.owled.ges that, pursuant to me ROE !:be City and its agentS, employe~ aDd contractors have heretofore bad the right tQ enter and inspect the Parkway Real Estate a.ud to begin constrUction of the paricway. 6. RepresentatiOns and. W~ties of American. Amencan represents and Warra:at! to the City as follows;. (a) There ar~ no outstaI1dingCQnuacts, orders, judgments or injunctions Ul'Volving American or we- Parkway Real Estate, nor is .American tbteaEeued witl:l any litigation or proceeding wmch, if decided advers~ly,' would <1elay the. cOllS1lImllation of: the transactioD1l conteznplared hereby 01." have a materially adverse effect upon the transactions COntemplated hereby; (b) American will uOt conduct Surlace mining on its real estate closer than OJle hucdred (100) feet from paved pon'ions of the P3tkway Real Estate or any orher public rjghr--of~way or me property line with any other lando-wner; t11d (c) AmerlC3JJ is the sole owner of the Parlcway Real Estate and has The authority to exec:ure this Agreement as evidenced by. the Assistant Secretar./s ccnifica'te attached herem as Exhibit "I". 7. Repl'f:$e:o:tations.ana Wattallities of the City. The City represents and warrants to American as follows: (a) The City ~ a ~cipa1ity dulycoDBtltuted under the laws of me State of Indiana fUld has all requisite power and authority to COn.s'UImnate the transaetio/JS cootemplaTedby this . Agreement; .(b) The execution and. delivery of this Agreement by the City bas been or will be, no rarer, than Clo$illg, dulyaurhotited by all necessary action of the City~ and (0) The execution, delivery and performmce of th.1i Agreement will not. cOnfliCt: wlrh any applicable PI"ovision of any redeal, state; Of munictpallaw Or any agreernentJ:O which the City is B: pany. 8. Addition.al Warranties, RepresentatioDSaJ.ld Agreements of the Parties. The patties further represent, WSl'tBnt and agree as follows: IS .(.'"I~~ ..~ ...~ 1 SEP.I1. 2002 11:15AM &ARKES THO~NBUR6 317-231-7433 HO. 046 P. 12 ta) Relocatiol'J of Batcb. Plants. The:re currently exists. immediately south of 96th Street as a part of American's 96d:1 Sa-eel Plam and plal:1t operations three (3) aspbalt proeessingplantsoperated respectively by F.E. Harding. Rieth-Riley Company and MiIesl:one Com:ractors (hareinaftet' the "BalCh Planull). Bath parties recognize and ackoowledge that espe(:ially in view of the location of the intersection of ~e Parkway with 96th Street, the relocation of the 'Batch Plants to an area of American's 96tb Street Plant which is: non::h of 90th Street, .i,s m the best io.terest at the City in terms of publii: safelY and vehicular traffic. Both partiesadditiomUy rl3C{Jgnize md acknowledge thee the relocation of the Batch Plams to that area within A.m.erican's 96th Street Plant as shown on Exhibit "'E" (hereinnfrer IIAres E~)., w011ld also serve to mitigate the da.me.Jes $UStaiDed by .Ato.er:lcan as a result of the City's 8cqui.:lition of the Parkway Real Estate and the iocatioD. Qf the intersection of the Parkway Wffil 961:b Street, To induce Americao to not only enter intO this Agrecment b\l1 to relocate tIle Batch Plants. th.e City hereby warran.t$? leprC$ents and. agrees that: (i) boT.b the real esrare comprising American's 96r.h Street Frant and Area E (hereinaftex- coUective1y and imUvidually the .Plant Real ESUltelJ), is currently outside an "Urban area" as said term is defined. by I.e. 36-74- 1103(b); (ll) ao IO:Q.g as the Plant Real Estate is outside an "urban area'" I.e. 36-74-1103(e) proh,ioitS me City from adopting a zoniJig ordinance mat would prevent or prohibit Ame;rican' s "cOlllPlere use" and alier;1ation of any mineral resources located on or beneath the surface of the Plant ,Real &rare; (lii),Since, any action of the Ci~ at this time to pxevent, prohl'bi( Of deny Anlerlca.n 1 s relocation. of .the Batch P1am;s to the Plant Real Estate would prevent American from l1&ving "c();Qlpl~te use." of irs mineralresoutCes. the City cannot now prevent, prohibitor detty American' a relocation of the Batcb Plams to the Plant Real Estate: (iv) smce American's maiD use of the Plant Real Estate is 1he "complete usc" of the mixle.raJ, resources located 00 or: beneath the surface thereof, tht Batch Plants aresubord~inuse to the msln use of the Pl.u1t Real Estate and can now be relocated On the Plant Real Esra!e as a permitted accessory nse; and. (v) based on the above and fQtegoing. American is emitlw- to and can re1~te tbe Batc.b. PI~ to the Plal1t Real Estate without obtaining any approvals or permits from the City. so long as American ini.da.[~13 such relocatiotLwhile the Plam Real Estate is outside the corporate boundaries of the thy. In addition. the c.n:y furtber WartB.Xl.t$. l:'~nrs and agrees rhat~ So 7 SEP, n 2002 11:'16AM BARNES THORNBURG 317-231-7433 NO. 046 P. 13 ;:.~ long as-' American initiateS the relocation of the Batch Plants to tlle Plant Real. Esta.le b:efore January 1, 2000, .8Jld thereafter proceeds with due diligence"tO complete me cOnstfUcUon of the Ba..t~ Plants on the Plant Real Estate, theXl the roalar.ecance of me Batch PlantS by Amuic.an " on the Pl&lt Real ~le "Wlll eonstiture a valid, legal non-conforming use purwant tOStllte law and the zoning ordinances, codes and regulations of the City. It is reCognized that in teloca"dng the Bai:ch PIant-s, American will save considerable expeIl,!!e by avoidiIlg The coDStruCtion ofaJttrnativc mer.hods of conveYing materiaJ~ BCroS$ ~th Street. The City lllso recognizea and acknowledges that - even though the relocation of the Batch Plants wUl $av-e AmeriCan cODSldeable expense, American will still incur subsrautial expenses 1tI relocating the Batch ?!anY.S. The City further recagnites, acknoWledge:; and agrees that .A.merican would sU$tam and suffer additional damages if after relocation of ttle Barch PlaDts to the Plant Real Estate, the Barch Planes were required to cease opention 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, iI\junction or decree by the City or an a.dn:1inistrative ageQc)' or a court of competent jurisdktion which order, judgment, ~UD.etiOIl or decree would nor. ba.ve been issued but for a finding or dete~dOl:1 that the local1on of the Barch: Plams on me Flam Real Estate viOlates the %oWng ord:mances, codes or regulations of the City because tJ.1e,Bateb PJanrs-;' (i) are DOt a valid, legal noc-c;onfonni.ng use under such zoninS ordillances, codes or regulations; 0;1" Cii) are: POt exempt from such zoning ordlnaoces, codes (If regulatiOtJ.$., whether by state statute or otherwise".. To coutpeIl5ate Americac. for the dllalages it would $11$tain and suffer if the Batch P~an~ were required to cease operations and/or the Barch Plants were required. to be removed from the flam Real Estare during the period from dam af Closmg up to and including November 5, 2001, tb.e City covenants and agrees to pay to .A.o1etiCaIJ and as AmericU1's sole and exclusi'Vcmnedy, liquidated damages in the sum of :eight :aIlOdted Thousand Dolla;rs (.$800,000.00). Both American and. the. City agree ma! it l$ e-Xtrc:mely difficult and impractical to ascertain Of calculate the exrem Of AmerlclXl.'S d.etrimem and d.amage.s in the-event me Batch PlaIl.ts are required to cease opera.tions 8X1d/or be remaved from the Plant Real :&ta.te cl'Uring the period from da'te of Closing up to No-vember 5, 2001, and, tl:I.etefore, to avoid suc.b difficulties, American and the CitY have agreed tbat tile aforesaid liquidated daIoages do not c.o.QStinnc a peDalty and shall oe in lieu of any other monetary or " 8 ...1~ ::) .. - .... S EP. 11. 2002 11: 16 AM BARNfS THORNBURG 317-231-7433 NO. 046 P. 14 equitable relief available to American under this Agreemem or at law Or in equity if the Barcb. Plants are required to cease' operations and/or the Biltc:'h P1aD.tS are required to be remove(!. from the Plant Real Estate duri:Dg the tiIl:l.e period from date of CloSing up to November 5, 200 1. NorwitbJJmnding any provision in this Agreement to the contrary, both American and the City COVCIJaIU and agree t.bat in the ev~ me Batch Planrs are required to ce!1Se operariollS and/or theBan:h PISJ1ts are required to be removed from the Plant Real Esrate after November 5, 2001, American can pursue any and all claims f01' damages nld compensation thai; it may . have against tbe City 83 Ii result of the BatchPI3:aIs ceasitlg operadotlS. and/or the Bateh Plants beiug removed f'tom rhe Plant Real Estate after November 5. 200l. (b) Reservation. of Subsurface Mining Rigb:rs. The parties l1ereby ac1cnowledge and agree that Anlerican shall retain me right to lIiine beneath the Parkway Real Estate am:I Parkland. Real Estate after Closing, .and that such [csetVanon of the right to mine shall be set forth in the respective deeds. The reservatiQn of the right to mine beneath the Parkway Real Estate and Parkland. Real Estate sb.all be govern~ by d1e following provisioos: (i) Rights. AmeriCan hereby' reserves, for itSelf and its conrractors, agents, sUCceSSQf$ and l!$sign3, anexclus1ve right of llCCeS$ for Ingress and egress UI1der the Parkway R~ Estate and ParklandRea1 Estate cotllIXi:eneing at a depth of D.o~ less fhau fifty {'O) feet below the surface of the Parkway R.eal Estate and/or the Parkland Real Estate, for the pllIpo~e of mining, such minlng to include the right to tunnel, mine, and .rentove gravel, stone, and other aggregate; and to temove from other prope.rties and o;a.asport under the Parkway Real Estare and/or the Parkland Real Estate rock, stone, gravel, sand, limestone aml/or minerals, as may exist under the Parkway Real EstAte and/or the Parkland Real Estate and other propetti.es owned or collQQlled by AmerlCl1J;l as of the date on whichfuis Agreement is executed by both parties heretO, together with the right to construct and :lnstBllf 'lDATott\.;n, operate, repair. inspect, protect, remove and replace such underground appurtcmmces and facilities as may be necessary in American. s exercise of its rights hereun.d.e:r. Norwirhsranding the foregoin~, AaJmcan hereby 9 S E P. 11. 2002 J 1 : 15AM BARNES THORNBURG 317-231-7433 NO, 046 P. 15 :~ at:.kuQwl~dges tb,at the City's ml.1n.icipaI utility basinsralJed within me I.t) Parkland Real Estate underground equipment by which to perform its utility service which service will not be interrupted and/or distUrbed by Amcncan. (ii) TeJ.?:U. UDJ.ess th.is ceservauonof rightS is released in a written document dellvered by American to the City j this reservation shall COmmence on the date of Closing and sball conti;aue until the earlier ()( (1) the terminatiQn of all mining activities by American and .its successors and. . assigns in the ar~ of the Farkway Real Estate and Parklani Real Esta~ or (2) niDety(90) years from me date bereof (the "Term"). (ill) Indeinnificatlon. Except as otherwise provided iDS~Ction 8(g) below. <1urtng the Term of tbis reservation of righTS, AmeriC3JJ ~baJ.l indemnifY, defeooand save hannless the City fromaiJd agaimtall claims, judgments, liabilities, ,fines, penalties or c~pen.ses caused by AmeIiaw.'s exercise of .irs rights hereunder, In the event that legal action is necessary by either party to enforce any prov~iQn of this Section 8{b), the prevailing party shall be entitled to recover from the nonwprcvailing panythe exPeIl5es thereof, including reasonable attorneys' fees. (iv) Removal ofEqufpmenr aJ3d E.ecl~atioll. Unless otherwise agreed to In writing by the City, American shall remove all of the equipment ami :('ela.~ facilities of American under. the Parkway Real Estate and Parkland Real Esta~ within one 'hundred twenty (120) days after the termin.atl.QO of American's rights under this Section 8(b). American agrees and covenants with the City that American will. at it3 sole expense, complete any r~lamation' obligation in accordance wilh applicable law with.in one (1) Yeai' from the dare AInerican'.s mining operations under the Parkway Real Estate and ParkImd Real Estate are tennilwcd. or such other time: as required by l~w; (v) Subja.cell.t SUPPOrt. Americ:a.n's operarl.ons shall be conducted in a good and workl'"nA....lfT{e manner at all times and in such a manner as not to 10 SEP. 11. 1002 11: HAM BARNES THORNBURG 311-231-7433 NO. 046 P. 16 .. .:;; iIlledere with !:he surface use of the Parkway :rmu Estare i.Qd Parkland Real Estate. Ameriean shall oOnduct all such operations beneath the Parkway Real, Estate in 'such a manner a.stO mflntAi:oadequate subjacent snppon tot pedestrian and vehicular use of the Parkway Real Estate and Parkland Real Estate. (vi) Right of Access Appu:rttmant and Irrevocable. The rights create4 herein are hTevocable and shall run 'With the land. The parties heIB(O covenant ' with each other that the agreements hereUi contained shall be binding uPQJ;l. their respective Sllcceuorsand auig.o.s. (c) Utility Plant Real Estate. At ClOsing, Amenan shall exccu,c and deliver a q1J.itc:laimdeed to the City with respect to certaill real estate adjacent to the City'sutDlty plant located at 9600 Rivet Road and. identified Q~ Exhibit "F" attached hereto ("Utility Plant Real Estate"). The conveyance of the Utility Plant Real Estate .shall 'be $Ubject to the: eoveoant ['I.lDJ)j,ng With the Utility Plant RealE$t:ate asdescribeda:nd. set forth in Section 8(g) below. The legal description of the Utility Plant R~ Estate $b.a.1I. be determiIled in rite survey prepared pursuanr to Section 4(a). (d) Annexation. The parties acknowledge thar me City may in the future consider amieXing real estare owned by American in Clay Township to rhe City of Carmel; however~ the City agrees tlW 110 annexation of any reil estate ClUTently owned by American, B$ identified onE-xhtait "0" arracbed hereto,shall be effective before January 1, 2000. In the event the City determines to annex any of American I s rea! es1aU: located in Clay Towmbip effective on or after January 1, 2000, American agrees not to oppose such a:nneiation but ouly if the City agrees that conditions to sucb annexation pu1S1UlDt to Indi3l18. Code ~:o. 36-4-3-8 wID be as follows; (i) the City recognizes tha~An:1eritanl s mining opcrari<los on the subject real estate are carti.ed on UDder a:o. existiz:lg. Jegal nOll-conforming ~e puTsuant to case law and as defined in the City's current zoning ot(ijnancc, No. Z':289 (the "ZQning Ordinance");' (Ii) the City agrees that the annexation shall not divest American Qf its minJ.ng rights pursuant to such legalnon-confotJ:l'li:ng use; (ill) the City asrccs tJW. the area proposed to 'be annexed to the City shall ini~a1ly be treated by the Zoning Ordinance as if it lay I)utside an "urban area n as defined in lodiana Code 36-7-4-1103; and (iv) the City agrees tbat it w:ill J:1;;lC object to any proposal by 11 SEP. 11. 2002 11: 17AM BARNES THORNBURG 317-231-7433 NO; 046 P. 11 . :.::J Am~ca:o. to rezone the subject teal estate for mining operations and the operation thereon of the BatchPlanu and other accessory uses 30.l0~ a.s the rezOlJing would be coJ;l$isteUt with th~ Cio/'~ comprehensive plan adopted t1J.1der I.e. 36-7-4-500 et seq, provided, however, that tlcthinlJ in rhis clause (lv) rl:lquire.s tbe City ro so object. The City hereby agrees to m.a1':e ~ucb. conditioILSa part of any such annexation of the real e&ate owned by American in Clay Township. (e) Donation of Real Estate. At Clo$1ng. AmeriC8I1 shall execute and deliver a quitclai.o:i deed(s) to the City in order to donate the following parcels (nparklancj Real EstMe") to me City: two (2) tbirty-sev~ (37) acre tractS identified in Exbibit lOR" attached b.erero, The cou'\'eyance of me "Parkland Real Estatesball be subject.to the covenant nnm:ing wiI:b. the . Parkland Real Esrare as described and set forth in SecUoo 8(g) below. The legal descriptions of the Patkland Real Estate shall be determined in the survey prepared pursuant ro Section 4(a). . ~ j (f) Rlghtto Stop Traffic. The parties recognize thaI the new location of the Parkway may necessitate additional safety measures so that American (:all conduCt its occasional blasting operations, Co llSequently , for all blasritl.g operations which occur within Seven HlWdred Fifty (750),. feet of me Parkway, the City a~ees that it wUltake all actionsnecess3IY to permit Amencan to StOp traffic along me Parkway not more rban one (1) ti.t:oe per day (Monday through Friday oD.ly) between 96th SlI'eet and 116th Street for the pmpose of allowing American to conduct irs blasting. All bl~ting operations shall be subject tQ the pres~nce of 'safe blasting col1diIions including the presence of flagmen at all interSections between, aJ),d feeder roads into, the poniOD. of the Parkway Real Estate thaI is reasonably antidp"ated to be affected by s'Ucb, blMtmg operations, and American agrees that it will minimhe !he interruption of tratfic :using and tl'B.veling on the Parkway by adhering to the following mini:tnum safety procedures: (j) Tim.e~ Amerlcanagrees that it will not conduct blasting befme 9:00 a.m., between 11:00 a.m. a.o.d 1:30 p.m., betWeen 2:30 p.m. and. 6;00 p.m. or lUter sunset. (ii) Notice. Americl1J1, agrees tQ notify 'the Chief of Pollee of m.e City of Carmel wheJj,ever it will need to conduct blasting: operations thai 12 ~ "~': I SEP. 11.2002 11: HAM BARNES T~ORNBUR6 3t7-231-7433 NO. 046 r. 18 nece$8itate the stoppa~~ of traffic along the Parkway. Notice i:o the Chief of Police shall be- given botb by telephone and in writing (by facsimUe ttanmllssiou),not less than, tweary-tour. (24) hours before any bJasting Otcurs.Nar!ce to the Cbief of Police- that blasting has been C:OD1pleted sball also be given wid1in ODe (l} hour after the Parkway is cleared for traffic. (iii) Signage. American. agrees tli.at, if within ten (lO)years from the date of Closmg, the City determines that ~ signs should be erected in. the Parkway right...of-way to advise traveling motorists of a blilliting area, A1I1erican shall pay the.actUal exp~e for tb.e design and installation of the sJ.gnage. b1.11 in no event sba11 ,American's payment exceed the total sum of FiVe Thousand and.noJ1OO'sDollars (,$S,OOO.OO). In the event the City, with.iI1 the tilne.period set forth above, detetmines that warning signs should be erected, Chen American agrees to pay for Q, perioc:l of ten (10) yeaIS, an ao.nual maintenance expense lot r,be acrual costS of maintenance of Ih!': WlU'. sigils in an amount not to exCeed Four Hundrf:ld and no/lOO's Dollars ($400.00) per yr;:ar, (g) Covenant RllO.I.1ing With.the La.1Jd. The City ack:nowled.Se$ iliat AJ:9,edca:a. bas and is conducringmiDing operations 00. its realesta,te. incl.ud.bJg that portion of its real etitate from wbleb tbe ParkWay Real Eswe, the Utility PIsnt ~Estate and the Parkland Real &r.ate will be conveyed. The City ~a acknowledges thaI Anlerica:o., and its succe~sors-in-intereStS. .'lIlill. cooti:o.ue tQ conduct mining operations' OD aU of its temSiil'li"s: real'estate in Clay Township followi.ug the conveya:lce of me Parkway ReaL Estate, me Utillty Plant Real Estate anddle ~ark1and Real &tate. The City funaer aclC:lOwlmges that American bas and. is leasing or"may in we future lease to otbers, a pan of jts. teal es~ for use by iudusoies which are subordiDate. to and related to American's mining operations aJ1d wbi:ch use products of AInerican's .xni~ operations. such as for example only, the BatCh PlantS (hereiIlafter collectively and'separately the ~Relatcd. Inaustriesl'). The City aekilowl.edges thal: Amerlean's mining operatlans and (he operations of my }t=lated Industries mAy subj~, the City and the Parkway Real EState. fhe Utility Plant R.ea.1 Esta:!e and ~e VarJdand Real Estate to l:1oise. dust, trock T1"af'fie, blasting 13 S E P. 11. 2002 11: 18AM BARNES THORNBURG 317-231-7431 NO. 046 P. 19 ""A vibrations and otheri.Dconvenienccs. ,As an mctUCenlent to American>s execution and. de,livery ,.~..l af this Agreement and COl1veYQce Qf the Parkway Real Estate, the Utility Plam RealEsta.:re and the Parkland Real Estate to me City.; the City covenants, on behalf of iaelf aod its successors-in-interestS, that II shall n6t.ini.tiate 1f1J.y proceeding or taker any action, or panic:ipate in any proceeding or action, to limi.r:.. prohibit or restrict American's, and its !llccessors'-m- interests, mi.ning operntions or the operations of the Related ladtistries locared DC AmeriC3J1's real estate whatsoever, ,including, but nor Wnited to, nu.isanc:e or trespass. The City, OD behalf of Itself and. its successors'-in-inr.erests, does hereby waive, releaae, forever discharge 8Ild covettant not to Su.!) AD.1erlcan. its successors-m-intetesrs. th,eitlessee.5' and their respective sbMeholders:, officers, dir~ors,.and employees for any and aD claims, deroa.nds. injuries, actioos El.Ud causes ofaction at.law orin equity, past, present: Or future, any damages, or other cla.ims arisicg OUt of no[]~negllgent miningope:ratioDB. and/oJ;' D.ol1~negligcn[ Related Industries operations, including, by way _of iIIusn:ar:loll, and not limitation, property damage including diminution of property value, emotio~ distress, loss of peace of tnb:Id and happiness, discomfort. iIlcollve:oiencc, annoyan.ce, disruptiOD,nuUlance or tresp35$. For purposes of this paragraph (6) the tenn .pr~eedingD means any action. suit or ptocaedi:o.g, whether civil, criminal, ~trative or iuvestigative. and wIlether fonna.l Or informal. The City acl:,o.f.)wledges and agrees mat the foregoing covenants shall run with i:he P3rkway Real Estate, the Utility Plant Real Estate and me Park:ll:u1d Real Estate and the foregOing covenants shall be reflected in the deeds to be delivel:'ed by American to the CIty pursuant to this paragraph (g) . (h) Claims Ap;~t Ti.tle ~e; The Cltyagtees mat for any claim Or cause of actio;o it may have against A;caetkan for breach of warranties given by American pursuant to the warranty deed coo.veyillg the ParkWay Real Estate to the City, the City 'Will fimprocess. assert, pursu.e and exhaust aU oim cIaimsand remedies against the title mstlI'ance ~m.pa,ny issuing title insarance pursuant to Section 4(b)of this Agreement before the. City p~sues it$ cla:ims or causes of action against AmeriCatl. !;l~ Property Taxes and -Asstnwents. Real estate taxes payable in the calendar year following Closing will beproiated based upon me number of days of ownership of the Parkway Real Estate, Utility Plattt Real Estate, BIUi Park:l.md Real E3tate by AmericaiL and the City during the calendar year of Closing. All teal esu.te taXes pa:yabl~ p1'ior theretO shall be 14 SEP. 11. 2001 11:18AM BARNES THORNBURG 317-231-7433 NO. 046 P. 20 :~:::-, payable by A.merican upon presentJJ.ttoI1 of a tax statement to Amencan by either the Treasurer . ':" of Hamuton County, Indiana or the City. American shall p~y all assessmeQts'becomi:fig a lien on theReat EState pnotto Closing. 10. l>>.sunW.ce and Risk of Loss. Except for the insurance maintained for or oil bclmIf of the City by a third patty in connection with the ROE and except fer the Ciry be8IiDg me risk of loss on the }Iar'k,way Real Estate while having acceSs thereto purSU9Jlt to the R.OE, insurance to protea me Parkway 'Real Estate, Utility Plarit i.eal Estate aDd Parkland Real Estate, including liabilityiDsurance. shall be mllimJlined by AtnerlCan until the dare of Closing. Except iIS noted above, Ameriean shall bear tl:Ie risk: of loss on the PlU"kWay Real, Estate, utility Plant Real Esmre and Parkland Real Esta:to through. tb,e dare of Closing and the City sh.all bear the risk oflossther~after. 11. Sun'i'val of Representations; ludeDinity. the repre$eJl[S.tiOilS, warrantie-s, agreements and cOVenantS of the- parties to tbi$ Agreement .shall survive tbe Closing and Ibe conveyance ofllie real estate punmam to this Agreement. Each PartY herem agrees to ctefend, ind.em.o.ify aDd bold hann1ess the other party. iu; successors md iWigns from and against any and all dmnllges, actions, suitS, claims, liabiJi-cte::;, obligations, deficiencies, losses; judgments, costs. and expenses (i.:ncJudiog, without ,Limitation. attOmeys' fees and expenseS) which: would . ",. not l:111ve been suffered,. susIai.Ded O:i incurred'but f.or the bl;"each of any warranty or inaccuracy of any representation m;.de 9Y the indenmi:fying parry I or non':fulfillment on the part of the indeIllJ1ifying party. of any' -agreement or covenant or orher dOCllII1ent furnished or to be fumWied by. the incJ.eo:rgit'ying party pur3'l.IaDt to tb.i.s Agreement or iJ.1 connection with the rxao.sactioD. contemplaw3. heteby. 12. Benefit ano Bmding Effect. This' AgTeemem shall be binding upon and shall inure [0 the beuefit of the patties liereto and tbeir respective successors and assigns. 13. Bxpem~. All closing fees and recording fees will be divided equallY by the parties. Eac.bpartY will be responsible for the payment of ita own attorneys' fees. 14, Notices. Except as provided in Section 8(f), aJJ.ynotice which may be or is required !O be given p.eteunder shall be in writing, and 5ha1l be deemed given if and when posted in certi.fi.ed n:Wl.. return recejpr requested. and. addres8ed to, me resp~ct.ive parties as foUows: 15 .:;....:\ '., I .. SE? 11. 2002 II: 18AM !ARNES THORNBURG 317-231~7433 P. 21 ~O. 046 If to Am,et'icao.: American Aggri:gaIe'S Corporation P,O. Box 1~7S15 6450 Sand Lake Road . DaytOn, Ohio 45413.1515 With i Copy to: Martin.Mariena .Materials 2710 Wycliff Road RaleiEb" North Carolina 27607 Aaention: Vice-President and General Counsel If to the CitY: Mayor,City of Cannel One Civic Square Caunel, Indiaz.a. 46032 With a Copy to; City of ~eI Oepanment of Law One Civic Sqll81'e Cannel, T..ndWla. 46032, Attention: City Atoomcy or such other address or addresses as any party may subsequently designar.e in writing to me other parties hereto. .... IS. Amencl.m.eo.t. This Agreement IXUly oaly be amended by an instrum.ent in writing signed by American and the City. 16. Attorneys' Fees" In any litigmion betWeen the. p.arri.es to enforce any provision or righr under This A~cc:ment, theunsuccessfLlI PartY covenants and agrees to pay to the successful party ill COSts and expewes incurred by me prevailing party in connection with the litigation, including, but not limitedt6, (eaBonable IRtOmeys' fees. 17. Enforaabillty. In the event t!lat a court of competent jurisdiction determine;i that 041e or more provision herein is or w: unell!orce.e.ble, all other provisions hereof shall be anafieated theteby and shall be :(ully enforceable by the parties hereto. IS. ,Entire Agreement, This Agreement constitu:tcs t:hesole aild entire agreemC'Dl: between the parties hereto with respect to tbis tI'aIlSactiOD. and supersedes any prior understandings or wrlttel1 or oral agreementS with respect thereto. Tb.is AgreeaJeDt ma)' be amended or modified only bya writi1;J.g executed. by both parties hereto. 16 ~ .~ . .~..:~ SEP. 11. 2002 11: 19AM BARNES THORNBURG 317-231-7433 NO. 046 p, 22 19. GovenrlngLaw. This Agreement s.h.aU be governed by and c:r:tnst:fUed in acco:rdance wi.th the laws of the State of mdlana. AInerica.n and City agree and consent: (1) that any legal. action or proceeding relating to, pertli.ining fO OJ, concerning the JubjeGt matter of Ibis Agreement may be broup,t only in t1i.e non-exclusive general jurisdiction of the courtS of th~ state of Indiana sini:ng in Hamilton County, Indiana. the COuttS of the United Swell of America for the Soutbem District of IndillDll, and auy iJPPeUate COUIt.$ from any thereof; !Uld" (ii) consent mar any snch action or proceeding may be brought in such ~01D'tS and. waive any objection either wy UQW or hereafter have to the venue of any such action Of proceeding in any such cOurt Or that: mc.b court or ptoceedl.ng was brought in an incOXlVeD.l.eDt coun and agredIlot to plead or claim tb.e same. '20. Interpretation. Both pariies.and their c-espective collDsel have pmiclpared .iil. The preparadon of this Agreement, and therefo~ it.ls deemed to have been mmually prepared. 21. Wai"V~ 1)f Jury Trial. Ameriqac. and CitY, after t.onsutting with cOunsel, lalowingly, vol~wily and imentionally waive any right they may have: to a trial by jury in any litigatio~ oa$ed upon or ari.8ing out of this Agreement or any of the tramactions contempliUed bereby. Neither American nor the city !hall seek to consolidare, bycol..\JJtefClaim or otberwi.se, 3.l;I,y action ~ wb,ich a jury rrial haB been waived with any other iilction in whicb a " jury trial CSJinO[ be or ha1 Il.Ot been waived. These provisions shall not be deemed to have been modified in any respect or relinquished hy American or the City ex.::ep[ by written i~e.o.[ executed by both :A.meti.ca.u. and rJie City. 22. Exhibits.. !Jl Exbibits referenced OeJ."em. st1a.U be considered incotpOrated herein as aD integral part of thi$ Agreement. 23. COUllterparts. This Agreement tiJ,ay be executed in separate countexparIS each of wlticb when so executed shall be an original; but all of such cOllIlterpaits shall together constitute bur: one and the same instrument BALANCE OF PAGE INTENTIONALLY LEFT BLANK 17 .... SEP.I1.i00111:l9AM BARNES THORNBURG 317-231-7433 NO. 046 p, 23 .;,~ :m WITNESS WHEREOF. the pam~ hereto have executed this Agreement OQ.. the dare set fom above. "CITY" . CITY OF CARMEL) INDrANA BrJ.-- ~~ J _ Brainard, Mayor and Meniber of the B:O~C2L~JA1_ M81jl Ann ke. Met1Iber f e Board.of lie Works 8l1dSafcty B ~16a~, ~illy alker I Member of the Board of Public Works and SafelY "AMERICAN" CORPORATION By: ~ Title: Pre.sideJ),t A~ted by: fPdOJJ.r.' ~ I . I f?n$.r~"'" 'Bt".uf"" Printed: Title: Secreacy $;17 MiJi3t.:...d ~l"'twy. IS SEP. 1 L 2002 11: 19AM BAR~ES THORNBURG 317-231-7433 NO. 046 p, 24 ::0?- .~~~) .w STATE OF INDIANA ) ySS: COUNTY OF'~ fRt; ) :Before me, a Notary Public in and for $aid CQUIlty and State, personally appeared James Brainard as MayOi'. of the City of ,Carmel. who aclcnowledged 'the execution ofrhe foregoing iJJstrum.enr.. and who, having been duly awom, st:a:l'ed that .a:a.y represeDtations cootain'ed therein are trUe, Wiaxess .my 'band and notarial seal this L day of fiJ!JY'p~ be /" 1997. SignaIlIte tf2 R~-A;/ J<)~ Printed 17". b~ CO.-a L~ No ftC-.. NoW'}' Public My COlMJission &pires: '5- s- 00 County of Residence: I-/a,.,..., t I -+ t5 J"\ STATE OF INDIANA ) ) 55: COUNTY or: I-I-~ ) '., ., Before me, a Notary Public in and fot said ,County and State, persona1ly appeaxed Mary Ann Burke as a Member of the Board of Public Works and Safety of the City, of Carmel. who acknowledged the execution of the foregoing instrument, and who, having been duly sworn, stated That any representatiOIlS'co:atained tIlereooare t\1.le. Witness my band 'and notarial seal this' 5 t*'r day of /lid,f .J m j,.p I" 1997. 'rf~ S -0<:1 Si_ft::: ~ :tfi Printed ~ ()Q L. ( '() Notary Public My Commission Exp~es: County of Residence: f-./;l71t 'JH ~. 19 SEP. 11. 20~2 11: 20AM BARNES THORHBUiG 317-231-7433 NO, 046 P. 25 :..~;::.(\ STATE OF WtAN,'\ ) ..""'.....:1 ) SS: COUNTY OF j#",,; I Inn . ) Before me, a Notary Pu.blic in and for said County ami State, personally appeared. B:ilIy Walker 3.$ a Member of the Board of Public Works and Safety of the CIty of Cannel, who acknowledged the. execution of the foregoing :instrument, and .wbo. having been duly sworn, stated that any represemations COJ1~ therein are true. Witness my hand and notarialsea1 tbis 5'p... day of . f/IJIl:P J44 bo(' r 1997. 8"- S -e~D SignaEure t2.~ f w.-f Printed f)~ JUi'r r ~ L. bt)(f/T Notary Public My Commission Expires: County of Residence: ;./c.. ,Nt , 1+r. r, STATE OF MIe ) )ss: COUNTY OF }:/u;/t;vuee,/ ) .. '. Before me, a Notary Public in a;o,d for said Counryand State, personaijy appeared. Geoff C. Harris as PresIdent o~ Am~ican A.ggregates Corporation, who acknowledged r.he executioD. of the foregOing instrument, 8Jld who. bav~ been dUly sworn, stated that any representations contained therein are r.cue. . Wimes~ my"Jwid and' notarial seal ~ 31 ~t day of ~r-.b.6<!'T- 1997. I I ! i I My' CoonmissiQIl. Expires: Signature ~ C,o~ /1 -lY -9'7 Printed LEONA A, ?ETHO& Public 1" ana Till. :\./vC(1m_~ ov- 14,1999 County of R.esidence: Da rie&.. ()j,,~ . I 20 SEP, 11.2002 11: 20AM RARNES THO~NBURG, 317-231-7433 NO. 046 P. 26 ...;~ N",i~'; STATE OF ;1/(1__ ) ) 55: COUNTY OF "JAKE" ) Before me, a Notmy Public in and fot said Cowityand State, personally appellJ."ed Ra t; ~ ..f. /itw;. as ~etMyl Assistant Secrewy of American AggregateS CO:cpOrwon, who .. owledged the ex.eC\ltioJl of the foregoing instroxX),ent, and who, having beta duly sworn, s.tated that aoyrepresentatioIlS conta.ined [herem arc true. Witness my hand and notarial seal this ~ \'..... da.y of 0 """01 \1.LG- 1997. My Co~sion Expires; 11/17/ ;z.otJ 0 Sigmrure-m~AA/~?1/. ~ _ Primed ;It !J.Rc" r4/l,C-r .tJ.f. L.,4I1IJ1/ZA' Nomry Public County of Residence: WAKE' m:nP\lrdilIsr91 O.3~. 9?~lll:fl.lI ~10.211.91 21 . .' 'f~ ;:J.,. " 'l CO Crojf,.Reference: Deed Record 150 p. 552; Deed Record 3:;q;p. 1 (....Instrument No. 95-57535; Instrument Sf) No1Jtl..2471D \\J [<~D SETTLEMENT AGREEMENT ~ This agreement ("Agreement") is made effective as of this Z7'h day of August 2001 by , and b~tween The Helen M. Mueller ConservatCtrshlp ("Mueller"). E. & H.MueJler Development Company, LLC {"E. & H. "). Martin Marietta Materials, Ine. ("Martin") and the City of Carmel, lndi~na by and through its Board of Public Works and Safety ("Cltil). RECITALS: WHEREAS, on September 16, 1997 City commenced an action in Hamilton Countyl Indiana (Cause Nb. DOl-~709-MI-542) seeking to condemn real estate owned by Mueller, consisting of approximately fen (10) acres together with associated land improvements and other interests (collectively, the "Roadway RealEstaten) and needed by the City forthe construction of a public right of way kn{)wn as Hazel Dell Parkway (the "Projectll); and WHEREAS, on November 12, 1997 the Court in such cause appointed appraisers to detennine the fair market value of the Roadway Real. Estate and any damages and benefits accmingto the residue of Mueller's property adjoining the Roadway Real Estate; and WHEREAS, such appraisers determined that Three Hundred Nine Thousand Nine Hundred Fifty Dollars ($309.950.00) constituted such fair market value and such appraisers filed their report on December 4~ 1997; and WHEREAS, within the applicable statutory time period Mueller filed objections to the report of such appraisers following which the court in such cause set the matter over for trial on July 23,2001; and . WHEREAS, on or about July 20, 1998, Mueller withdIew such Three Hundred Nine Thousand Nine HWldred Fifty Doilars($309;950.00); and . WHEREAS, Mueller alleges that a portion of Muelle(s property consisting of approximately 29.628 acres and lying east of the Hazel Dell" Parkway (herein referred to as "Parcel B'!) suffered, severance damages as,a resultoftbe Project; and WHEREAS, City uponfwther investigation and review of sucb allegations, likewise determined that"severancedamages exist in connection with Parcel B as a result of the Project; and WHEREAS, the legal description of Parcel B is attached hereto , and incorporated herein as Exhibit A~ and WHEREAS, Parcel B and a portion of MueUer's property .located west of Hazel Dell PaJ'kway is subj eet to a long-tenn lease agreement for mineral extraction between Mueller as landlord and Martin as tenant (the "Leasen); and WHEREAS. City has d.eterlJ1ined that Gtis Utility Department is able to utilize Parcel B for the benefit of~~ ~~~~; and 2.Q02QOCHee5e :"", ". .." Fllea for Record in ., ." . ; HAMILTON COUIIlTY I INDHlNA MARYd,. -, CLARK.. -." ,. 03-07-2002 02~57 pm. AaREEMENT 105.00 lJEST POSSIBLE WAGE " A~ PAGES '.. J EXHIBIT B 'I . -! ~ . .. WHEREAS. Mueller and the City 'now desire to settle their dispute pursuant to the tenns of this Agreemen~ and VVHEREAS, this Agreement is subject to (a) approval of the court that has jwisdiction over Muell~s conservatorship and (b) MueUer's ability to procure a partial release ,of the Leas~ which partial release shall limit Martin's rights to extrnct minerals pwsuant to the Lease as more specifically set forth herein. NOW, THEREFORE. in consideration of the foregoing Recitals, all of which are incorporated herein by this reference, the following mutual covenants aJ1,d other good and valuable consideration, the receipt and .sufficiency ofwbich the parties hereby acknowledge, the parties agree as follows: 1. Compensation. In addition to the amount of Three Hundred Nine.Th()usandNine Hundred Fifty Doltars ($309.950.00) previously paid to Mueller by the City for the Roadway Real Estate, at the Closing ,{as hereinafter dermed) the City shaJ,lpay Mueller the sum of Five Hundred Forty 'thousand and No/lOO Dollars ($540,000.00) for ~arcell3. Mueller and E. & H. shall, within fifteen (15) days folLowingexecutibn of this Agreement and approval hereof by the 'court having jurisdiction over Mueller's conservatorship but in no event later than October 1. 200j (the "Closing"), conveyParoel B t.o the City by general wammty dee(i subject only ta: (a) thelienfor taxes not delinquent. and (b) that cetmihsanitary sewer easement agreement between Mueller and the Town .of Carmel dated June 28, 1973 and recorded in Book 267, Page 231 in 1he . Office of Recorder .of Hamilton County, Indiana.. 2. :e~ial Release of LeaseINew Agreement with Citv. .Effectiveas of the Closing, the Lease shall be terminated and released as 1.0 Parcel B and the Path Easement Parcel (as hereinafter defined). However,. upon the request of Martin at any time during the ~ of the Leasel City shall enter into .one .or more agreements with Martin mutually accep~ble to City and Martin 1hat, subjeCt to the procurement by Martin of all necessary approvals from all applicable governmental authoriiies, including without limitation, all zoning appravals, variances and ather approvals required by law, allows Martin: (a) the right and easement .of underground ingress'and egress to and fram property mined by Martin (other' tbaI1 Parcel B) and to and from ather property mined by Martin"(other thmi"Parce1 B) and located nnder,parcel B generally. near. the intersection of Haze;l Deli' Parkway and l06tb Street (as if extended east of Hazel Dell Parmay), but in an exact location acceptable 10 City and which does not interfere w1th(i) any surface use by City of Parce:l a, or (ii) any subsurface. use .of Parcel>> by the City rehlted to City's intended use of Parcel B for water wells. a water utjlltyplant and similar uses; and 2 ,," .. " ., (b) the rightt to.mine imder Parcel B at a depth, location and upon such other terms. conditions and. indetnnitiescontamed herein and otherwise reasonably ~mposed by City such that Martin's exercise of such mining rights does not interfere with City's use ofParcelB; and (0) the right to mine under the Path Easement Parcel (as hereinafter defined) . at a depth, location. and upon such other terms, conditions and indemnities , contained herein and otherwise reasonably imposed by City. Murtin's right to mine undet; :parcel B and the Path Easement Parcel, subject to the procurement ofthe'afore~described approvalst shaU inDO event extend beyond the, sum of the original1.vlenty (20) year tean of 'QIe Lease (6 true copy of which is attached hereto and incorporated herein as Exhibit.B), phis any of the four (4) five (5) year options to extend if in fact exercised by Martin,. its successors and assigns (the ''Term II). 3. Additionalprovisions r62arding Martin's Minlllrr Operations. The right to mine beneath Parcel B and the Path Easement Parcel shall be governed by the following proVisions: (a) Martin's rights shall include the light of access for ingress and egress underP~l B and the Path Eas'etilent Parcel to tunnel. mine, and remove gravel, stone, and other aggregate; and to remove from other properties and transport under the Parcel B and the Path Easement Parcel, rock, stone, gravel, sand. limeston~ and/or minerals as may exist under the Parcel Band the Path Easement Parcel and othetptoperties owned or controlled by Martin as of the date on which this Agreement is executed by .aIlparties hereto, together with the right to construct ami install) maintain, 'operate. repair; inspect. protect. remove and replace such underground.appurtenances and facilities as may be.necessary in Martin's eXet:~seof its, rights hereunder. Notwithstanding the foregoing, Martin hereby acknowledges ~at the City wUl install withinPw:cel B underground equipment by whi~h to perform City's utility; service which service will.n6tbe interrupted andlor disturbed by Martin. (b) Indemnification. During the Term and for a period of two (2) years thereafter, Martin shall indemnify, defend an!! save hatmless the City from and against all clL'iim,s, judgments, liabilities. fines, pemilties or expenses caused py Martin's exercise of its rights hereunder. In the event that legal action is necesSary by either party to enforce any provision of this Section 3(b). the. prevailing party shall be entitled to recover from the non- prevailing party the expenBe's thereof. including reasonable attorneys' fees. (c) Removal of Equipment and Reclamation. Unless otherwise agreed to in writing by the City, Martin shall remove all of the equipment and related facilities of Martin under ParcelB and the Path Easement Parcel within 3 , " I- l'll", I II ) one hundred tWenty (120) days after the termination of Martin's rights under this Section 3(c). .Martin agrees and covenants with the City that Martin will, at its" sole. expense, complete any reclamation obligation in accordance with applicable law withi:fi one (l)yeat from the date Martin's mining operations under the Parcel B and the Path Easement Parcel are terminated or such othertime as required by law. (d) Subjacent Supporl Martin's operations shall be conducted ina good and workmanlike mmmer at aU times and in such a manner as not to intenere with 1he swfaCeuse of.Parcel B and the Pa1h Easement Parcel. Martin shall conduct aU such operations beneath Parcel B and. the Path EaSement Parcel in such. amapner as to maintain adequate subjacent support for pedestrian and vehicular USe of the Parcel B and the Path EasementPar~1. (e) Martinis right to mine undeiParcel B mid the Path Easement Parcel shall be mthout the payment of rents or royalties by Martin to the City. '. 4. Grant of Right of Way for l06lbStreet. At Closing, or at such later tiine detennined by City, Mueller and. E. & H., as their interests shall appea.r, shall convey to 1:he City, by general warranty deed. right of way for l06d1 Street (betWeen Gray Road and Hazel Dell Parkway) such that after such grant,. the total right of way width lying north of the existing centerline of 1 O~ Street shall be fort.y~fi'\l"e (45) feet. Suchconvey1Ulce by Mueller shall not adversely affect access from I06th Street to Muellers remaining_px-operty, . The property of Mueller and E. & H. subject to thisSectioli 4 is described on Attachment i attached hereto and incorporated herein. 5. Mueller's Grant of Ri~t of Way for Intersection Improvements. At Closing or at such later time detennin,ed llY City, Mueller and E. & H. as their interests' shall appear, shall convey 19 the City, by general warranty deed, a sufficient amount of real estate :hot 1:()exceed. .08(51 acres at the northeast quad~ant of the existing intersection of (]yay Road ~d I06th Street for the construction of right of way improvements for the j!lt~rsection of Gray Road and l06th Stre~ Such conveyance by Ml.leUc::I andE. & H. shall not adversely affect access from l06th Street to Mueller's remaining: property. The property of Mlieller and E. & H. subject to this Section 5is deScribed onA~hment 1 a:tt.ached hereto and inC<lrporated herein. . 6. ~nfs Grant of Right of WaY for l.;rt.ersection IhlDfovements. At Closing, or at sucb later time determined by City, Martin shan convey to the City, by general warranty d,eed, a sufficient amount of Martin's real estate not to exceed.1736 acres at the southeastquadmnt of the existing intersection ofOray Road aD.'ld l06th Street and a sufficient amount of Martin!sreal estate not to exceed .4342 acres at the southwest quadnu:it of the eXisting intersection of Oray Road and 106$ Street. all for the oonstruction Of tight of way improvem~ for th:e intersection of Gray Road and l06th Street. Such conveyance. by Martin shall not adversely affect 4 , " . , ',,' . " access from 106th Street to Martin's remaining property. The property of Martin subi~t to this Section 6 is described on Attachment 2 attached hereto and incorporated herein. 7. RelocationoL Intersection JDlpl'Ovements. Mueller, E. & H. and Martin aCknowledge that the design of the intersection improvements. for OrayRoad and l06lb Street may change 'due to field concUtionsrelat\':ld to the e:dstence of a Marathon Oil co. pipeline easement. If designcoDsidemtions indicate a change to the location of the center of the interse<rtion, Marti~ Mueller and E. & H. acknowledge that more or less acreage than what is'referred to in Sections 5 and 6 hereof may be required of them and Martin. Mueller and E. & H. hereby consent to such change8~ provided thatthe aggregate siZe of the intersection improvements does not increase from what is depicted in Attachment '3 attached hereto and incorporated herem (i;e.,l.~4 acres from the n~rtheast quadrant and 0.42 acres from the southeast 'quadrant). 8. Martin's Assistance with Construction of Water Utili.ty, During the term of the Lease, any fill dirt generated by Martin (herein "FiIP')in the ordinary course of Martin's .;;perations on any real estate which is accessed by Martin via Hazel Dell Patkway(tbe"HD Property"), shall be stored on HD Property and made available to City free of charge for City's use in the oonsttuction ofa Water or other utility plant and associated improvements on Parcel B. From. time to time during the term of the Lease and at the request of City, Martin shall, solely at Martin's expense. deliver such available quantity of stored Fill to Parcel B as is requested by City. . 9. Martin's De-watering Operations. During the term of the Lease, whenever Martin pumps, diverts, relocates or ot1J.erwise moves wa.ter on the lID Property in Connection with Martin's mining operations erne-Watering Activity"), Martin shaU make' Such' water. available to City free of charge; however, City shall not be obligated to accept water from Martin. When City accepts water from Martin,. City shaIlipcur and pay any and all costs and expenses,required to transport said water from theHD Property to other property owned or used 1;ry.Citjr. Further.. City shallindertinify. defend and save Martin harmless from any and all liability. 10s5. damage, cost. obligation and expense which directly arises out of or results from City's receipt, transport or other use of such water. except to the extent that such liability. loss, damage, cost, obligation and expense is caused by the negligent act. whether of commission or omission, of Martin, its employees, agents, or 'contr'ac~, Notwithstanding the provisions of the immediately pr~g sentence. City's obligations set forth in this Section shall be limited to tbe exposure of and liability of city as a governmental entity,'including without limitation, ,actions and conditions as to which City is immunized. by the lndiana. Tort Claims Act and the exemption from punitive damages. such that City's liability shall not exceed what might have been its liability to any claimant after all appropriate defenses had been raised by City. 5 . " . '.' 10. Installation of Water Wells On HD Property. City shall, from time.to time, have the right to inslaU. at City's expen~~ wa.ter wells on the HD Property upon ~rms and conditions reasonably acceptable to Martin, but without the payment of rents, royalties, charges or fees by City to.Martin. 11. ~g:nan.ent Easement for-Mtilti.:.use Path .Purposes. At 'the tinJ.e of Closing~ or at such Wer time determined by City, Muoller and E. & H. as their interestS shall appear, shall grant and cOllvey to City a pennanent easement upon, over, tbrough and across that portion of the real estate of Mueller and E. & H. depicted and shown on E~bit G attached hereto and incorporated herein (the llPath Easement. Parcel"). The Path Easemen~ Parcel shall be dedicated to and for the use and benefit of the public for purpi:>sesofproviding a ten foot (1 O') wide public path for walking, tunnLng, hiking, roller blading, bicycling arid other foms of pedestrian, norwlOtorized access, as well as for use by motorized and non-motorized City mairitenance vehicles. ThC) Path Easement .Pprcel shall be used to coDilect the existing path system. serving Carmelot :Park to any future path within $e right of way of 1 06thStreet between Gray Road and Hazel Dell Parkway. Except as provlded in Section 2(b) hereof, Martin -shall not have any rights to mine or otherwise utilize or occupy the Path Easement Parcel. The terms of the peimanenteasement agreement for the Path Easement Parcel shall be as set forth on EXhibit D attachedheretG and incorporated herein. Such C9nveyarice by Mueller and E. ~ H. shall not adversely affect access from 106th Street to Mueller's remaining property. 12. City's Ri~ht to Relocate Path Easement Parcel. If an artificial.Jake is created in the vicinity of the "p()ssible future lake Bl'eaT! shown and depicted on ExhibitC, and when the intersection improvements contemplated by Sections 5 and 6 are' made) City shall have the right@lely at City's expense to relocate the Path Easement Parcel within the areao,included as the boundaries ofEld1ibit C and in a specific location that is reasonably' acceptable to Mueller and the City so that portions of the route are'proximate to the artifioialiake and outside, but adjacent to anyrighfofway enlargements associated with such int~rsec1ioD improyements. In addition. at one or more (but not more than three (3)) locations where the roUte . is so proximate to the artificial lake. City shall be permitted toexp,and the Path Easement Parcel to accommodate :path improvements .and' accoutrement, including without limitation, picnic .tables, playground equipwent, benches and shelters. Such expansions shall be of a shape. configuratiori. and design determined by City, reasonably satisfactory to Mueller, and not l~ger than 0.10 acres each. At the time of any:such relocation (}f the Path Easement Parcel, City shall cause to he prepated.and recorded in the Hamilton County, rndiana Recorder's Office {\ reVised q.escription of the Path Easement Parcel. City shall upon any such relocation of the Path Easement Parcel, vacate and release of recQrdthe prior description of the Path Easement Parcel,demolish and rem~ve any improvements related. theret() an4. return the disturbed area to its :pa.tura1 condition by rough and fmish gra<iing and seeding of such area. 6 ., . I .. 13. Mueller's Future Efforts tb Rezone Six Acre Parcel Attached hereto and il1corporat~d herein as Exhibit E is a site plan and depiction of Mueller's real estate subject to the Lease. Mueller desiresto.rezonc from S~l (Residential) toa zoning classification pennitting office and retail. uses (including gas sales and convenience store) the six(6) acre tract shown thereon attho.nortbwest comer of the intersection of 106th Street and Hazel Dell Parkway. City and its Dep;mmont of Communi1y Servict'S. which serves as the staffo!. the' Plan Commission pursuant to the Carmel Clay Zoning Ordinance, will supp6rt the reclassification of the real flState toa zoni~g classification(s) permitting office and retail uses (including gas sales and convenience store) and any proposal by Mueller to rezone such six (6) acre tract so long as the rezoning would be consistent with the City's comprehensive plan adopted under I.e. 3&:7-4-500 et seq., and the rezoning proposal contains a oo~itn:1ent.pursuant to I.e. 36-7-4-615, that Mueller will not oppose any future attempt by ~e City to ann~ such tract 14.. MuellW~ Right of First Refusal to Repurchase. Duririg"the first ten (10) years f-allowing the sale of Parcel B to the City, ParcelB shall be used only for public uses and !ni~ by Martin. Violation of such reqQirement by City, its lessees, licensees. grantees or asSignees beyond the notice and cure period set forth herein shall give Mueller the right .to repurchase Parcel B for Five Hilndred Forty Thousand.fJ,I1d Noll 00 Dollars ($540.000.00). In the event that. during the second ten. (1 0) years following the closing of the sale of Parcel B to'Cjty, City receives a written offer 10 sel~ all or part of Parcel B which City desires to accept, Mueller shall have Ole rlghtao.dop~on for a period of thirty (30) days following written notice to Mueller ContainIng a copy of such offer, to repurchase all or such portion of Parcel B for the price and on the terms set forth in such offer. City shall have a: period (the !'Cure Period"} of thirty (3D) days after written Dotice of City's violation of this Section 14 to cure the same and. an event of default shall not be deemed to exist during ilie Cure Period. provided further that if City conunences to cure such failure during the Cure Period and is ditigently and in good faith attempting to effect such cure, the Cure Period shall be extended for up to sixty (60) additional days, but in no event shall the Cure Period be longer than ninety (90) days in the. aggregate. 15. Removal of Refuse from Mueller Property. Within thirty (30) days following execution a!. this Agreement; Mueller shall remove from .the Mueller Real Estate all rubbish anchefuse ~o the reasonable satisfaction of City and dispose of same in accordam:e with all applicable laws, rules.'regulations and ordinances. 16. Vacation of River Road. City has no objection to the vacation by Mueller and . Martin of River Road south of 106th Street inasmuch as (and as long as) such . portion of River Road is not within the jurisdictional authority of the City. 17. Authority of Undersigned. The undersigned persons executing this Agreement Oll behalf of Mueller. City aIid Martin, respectively, each represents and certifies that he or she is duly authorized and is fully empowered to execute and deliver this Agreement to1he other parties hereto. 7 " 18. Assignment: Binding Upon Successors and Assigns. The rights. and obligations created herein shall'run with ParCel :8, the Path Easement PBI'cel and all otherreal estate described or referred to. herein. This Agreement shall be binding upon and shall inure to the benefit of the parties, their heirs. successors IUld asSigns. 19. No Implied Waiver. No con!:ent or waiver. express or implied, by any party to any breach or default by any other party in the performance of obligations hereunder shall be deemed or construed to hea consent or waiver to any other breaCh or default in the perforrnanceof other obligations of such other party. Failure on the part of any party to declare any other party in default, irrespective of how long such failure continues, shall not constitute consent or waiver of the rights of such party . 20. Amendments. Except as otherwise herein provided, any and all amendments. addltions Or deletions to this Agreement shall be nu~l and void unless approved by the parties in writing. . . 21. Noti~es. Any and all notices, demands. requests, submissions, approvals, consents. or other communications ar documents required to be given, delivered or served or ~ich may be given, delivered or served under or by the terms and provisions of tills Agreeinent Of pUrsuant to law or oilierwiset shall be,jn writing and shall be deemed to have been duly given,. delivered or served if and when sent by certified mail, return receipt reqqested, fIest-class postage prepaid thereon and deposited with any regularly maintained United States Postal Service facility and adcb:eS$ed, if to Mueller or E. & H. at: Mr. and Mrs. Erv Bruks 11173 Hazel Dell Parkway Indianapolis, IN 46280 and Mr. Eric Clark 14333 N. Gray Road Carmel, IN 46033 with a copy to: J. Michael Antd~ Esq. CHURCH~ CHURCH, HIlTLE&ANTRlM 938 Conner Street, P,O. Box. 10 Noblesville. 1N 46060 if to City at: Utilities Director City pf carmel One Civio Square Carmel, Indiana 46032 g " . ~ . with a copy to: RobertA. Hicks, Esq. and HaIlt Render, KilIian, Heath & Lyman, P.S.G One ~America:n Square, Suite 2000 Indianapolis, Indiana 46282 Douglas C. Haney. Esq. City of C'arinel One Civic Square Oumel, Indiana 46032 if to Martin at: Mr. Robert M. Furlong Vice Presldent & General Manager Martin Manetta Materials, Inc. P~O. BQx549 Carmel, Indiana 46032 with a copy to: Ms.PllUlaJ. Buehrer Real EstatelProjectsManager Martin Ma:rietta Materials, Inc. 780M. Valley Road Xenia, OH 45385 or to such other addreSs as a party may from time to time' designate by written notice to. the other parties. The date of mailing shall be deemed to be the date of such service. . 22. Captions. The titLes and. article or paragraph headings are inserted only for convenience and are in no 'way to be construed as part of. this Agreement or as a limitation on the>scope of the particular provisions to which they refer. 23. Severability. If al1Y term, covenant, condition or pr(}visionof this Agreement or the application thereof to any person or circumst8nces shall to any extent be invalid or unenforceable. the remainder of this Agreement or"the application of such teon of provision tQ persons or circumstances ot:h.er than those as to which it is invalid or unenforceable shall not be affected thereby and each term., covenant, condition and. pro:vision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 24. Governing Law. This Agreement shall be inteIpreted and construed under and governed by the laws of the State ofIndiana. 25, Cons!fggi91l. Words of any gender used in this Agreement shall be held to include illY oth~r gender. and words in the singullU' shall include the plutal (and vice versa.) when the sense requires. 9 .' . , " . "' 26. Entire Agreement Thi.:l Agreement shall constitute the entire agree.rnent between the contracting parties. regarding: the subject matter hereo~ and no variance or modification thereof shall he valid and enforce:ab1e except by supplemental agreement, in writing, executed and appro:ved by all parties in the same manner as this Agreement. 27. Counterparts. This Agreement may be executed. in any nwuber of counterparts, eacb DIle of which shall be considered an original. 28. Standards of Consent~ V/bere any provision of this Agreement requires the consent or approval of a party hereto, such party shall not unreasonably withhold condition, or delay such consent or approval, except as otherwise expressly provided herein (such as by words to the effect of "soIe" aridlor ."complete" discretion). Where any provision of this Agreement ~quireS a party to do anything to the satisfa.ction of the other party, each party agrees that it will not . unreasonably refuse to state its satisfaction with such action by the other party; If a party request theotber party's consent, approval or statement ofsatisfaction with respect to any matter hereunder, a failure of Ii party to reply to sUch request within thirty (30) days thereafter'shall be deemed a C<lnsent. approval or statement of satisfaction as the case may be. . 29. R~rdation of MemQlandum. This Agreement, or a memorandum hereof, upon the request of any party shall be recorded in the Office of Recorder of Hamilton County, Indiana. IN WITNESS 'WHEREOF, the parties hereto have executed tbis Agreement the day and year fIrst above written. MUELLER By: k~ (signature) By: (S~nature ) k{,~..t tA, NeLOL)'I (printed name and title) vP/G.tI\ , Eric Clark. Co-conservator (printed 'name and title) BY:.~ ~ (Signature) ErY Btuks. Co-ronservator (printed name and title) 10 .' l " '., flY: ~ &~)J (sign ) ~~j1;y Bruks, Co.,conservator ~ cp;rinted nfUUe and title) CITY OF CARMEL, INDIANA, by and through its Board of Public Works and Safety fly,b P _Y 1 eSBrainar~;;~%J~~ Date: l ~ 8 a ~.()( ;-' B~~~~J Date: .0.-3-0 ~ u.L Date: II ,,-f/,L .4} / . ATTEST: (jjW (to LOdHtlfM', lJJW-o/> Diana .L. Cordray,- .' , Clerk -Treasurer- Date: 10 ~G3';(;1 E. &JI. MUELLER DEVELOPMENT COMPANY, LLC . By: 4J ~ ~~,~ Wilbur Tyner. Jr.,Presi ent 11 I , \ I STATE OF INDIANA ) )88: COUNTY OF H At<<1 r l.. fbN) B.efore me. a Notary Public in and for said COWlty and State, personally appeared Eric Clark, as . the Co-conservator of The- Helen M. Mueller Conservatorship and who. having .been duly sworn, acknowledged the truth and accuraoy of the representations made herein and the execution of the foregoing Agreement. ,j1jt Witness my hand and Notarial Seal this 1,1 day of , -'- . .;~~~q!!,.~XPires; s-IIO /01 , ..' -,. .~.~ ~ .J . .. f'..., ,.. (It.. / v~~am~r~\.f _',- It-Ib County,Indiana I ." ~.(~-_ ~ ..,;n I, '- ., - 'l' . ,', .... An' }" I Os V '" / \' 0 -, . n Y.. ...... " ... "-I.. gr. 'K...t ~~, "~): $I .1 tb.!'t"" :iiJ> S - l " . a _ ... J . ,.... llC." . :t .. ... f- ,1..1 B L... ,J. 0 : " ~:; , . ~. .. ,~. ,- ,II. a'" ~ ; ~ ....', ..... r .t I .............. \ y.. . ~h/,I 0 I .~,. ..' \,.~:... ........h...... ~"'. , ...' otary Public . 3'. ;t1l? H A- t;L A/f./Tt' {/VI Printed Name STATE OF INDIANA ) , _ ) SS' COUNTY OF /lA;.(//..16tJ) . Before me, a Notary Public in and for said County and State, personaUy appeared Erv Bruks, the Co;.conservator.of The Helen M, Mueller Conservatorship and who, having been duly sworn, acknowledged the. troth and accuracy of the representations made herein ~and the execution ofthe foregoing Agreement. /ft . 4/ ~- - Wi...... my band 8I1d No1arial S..l fbis L day of _ 7~ I... 2~"--..L ' My COnunis. sio...xpir,." q If 0 101 . t5 . . ~ . -<t15J~r -' ~ ~f !/IW1/,.,70fI/ Coun Indiana NotaYy Public <!.<.~1\#1~)" . ty, ~. ;1/J { ~ ff ft~j.. ;f,vifl"""" '. .. ... A R ' "' ".,.\ . ed N jJ"" 0' '. Print . ame (;,~~~~f.~~ . \\ ~.;t~ U 0 1: to.' ....0 ,t<~" . ~ ~ . fJ.~'." . .... ~ . \:'''.1 a~D"'~i:;~ '\" y " . .... ~ ',. . \... ' 12 " . I STATE OF INDIANA ) ) SS' COUNTY OF IIA;!1IL-rotJ) . Before me, a Notary PPblic in and for said County and State, personally appeared Betty Bruks. the CCKonservatOl' of The HelenM. MueJlerConservatotshl:p and whQ. having been duly. swom, acknowledged the truth and accuracy of the representations made herein and the execution of the foregoing Agreement. . It Wible.. my hand and Noblrial Seal thi, 2-<11(.; of ~ 2". /J - ,1';!V1~~issionexpires: g It> 07 tJ. ~ (/"( .~"."""": ~ -0 Notary Public "~"""~"'~:>' a.fo~~dentof IIIIMIL;.i ounty,Indiana __ AA II/lr-J .4''''-~!M I . :' ~ 0 .' l"iv .".... '. ....J,. l'VJ r ~,.,.rr c;: '-' J71V / ~ I ~' ~ 4t) . ~ .: f J ... , Printed NlUIle . ~ .... ,~ uli \.. \ C.: 6 ... . 1", " ~.J:.___. . t.. ", " .'&.:~"- ..' .- ;~ I .........~.. \ ,,:. ....~o , p.. \ STATE OF INDIANA ) J IIJ ..-. I) SS: COUNTYOF rrtlMl f; , ON) Before me, a Notary. . PubliC. in. 'llIld fr said '.'~ C.~lJ llllty an. . d sm.te....' per~ona11y appeare. d i!.. 0 (ffP:r- M. F()~ Lof.l Gr . , the ~l:€ pPes. GcJv~. ~ Martin Mari~tta Materials, lnc. and who> havingbeei1 duly sworn. acknowledged the truth and accuracy of the representations made herein and the execution of the foregoing Agreement. If' , " . ,JI . .,' '~''''. __:.F.~'.Jn~.::;~O~?oS;ilim~~L2!A~ lG;~;~;~.' "', ~,~, NotaryPubhc . ".~ ~~~." ;'a..t~k~;.~"t.lIIlMJcro;JCounty, Indiana -r J..I AA ~I:'I A.. . : ~."'t" /\ i 1 ~.. " '1{', I.J . /VII c... H// r;;- L Tlt'V I}. , ......, .: ~ . \ "(."'" ,~'" . .., :. ~ '["~ . ..! . .:, ; Pnnted Name . . tj'...A., ~. .. " '".., U B \..' C .: (I . ~ ~ . . ~ . ~ .' '. .. ;)'. '~';V.D.'i..;:~~' ~....,~,.....- 13 , " STATE OF INDIANA COUNTY OF 1-lA-M1~.J ) ) SS: ) Before me. a Notary Public in apd fo-r said County and State, personally appeared James Brainard, as the Presiding Officer for the City of Carmel, Indiana Board of Public Works and Safety, who acknowledged the execu.tionofthe foregoing Agreement. WITNESS my hand and Notarial Seal this. ; ,1"- day of _~r"'~'J' ~4~ My~;:;-~~nExpire.: . r-!~ My 9~)Unty of Residence: (j) H..IrM.t ",,"N ~ -. '--'+ Notary Public ^. K jU.:..\ Printed STATE OF INDIANA COUNTY OF 1-' AMI LTG"" ) ) SS: ) Before me, a Notary Public in and for said County and State, personally appeared.Mary Ann Burke, who acknowledged the execution of the foregoing Agreement. WITNESS my hand, and Notarial Seal this -3 My C9fllIDissi~ Expires: if'" JiF'- :;lot'J9 Mymty of Residence; , fit'! ~N 14 . .' I ,.r . -STATE OF [NDIANA COUNTY OF J:lAMI un~'1 ) ) SS: ) My Co, nunissiOI1AXP-ires: if - :J-Y-;ZOdJ Before me, a Notary Public in and for said County and State. personally appeared Billy Walker, who acknowledged the exeyutionoftheforegoing Agreement. . WITNESS my hand and Notarial Seal this ~ day of th'.k}&2..A;i.(JtJ1:-~-" ',. , ~ , ~ ..,....~u'u:,,, I J- ,,~\.,.v' "~""# ;'I" ,..". c; .6....,.. ""'-"" ... . ~ -...... Jt......~ Notary ... ;' '<. \ ~ .~ " oC '0.. : ,t ~ 0<( ': I :'" : .,< . _. z %,..., \. '. ~" Ie i .1 -:. cr., " ' _ I~ II: C ~ /1 ". 00' ~ ( , A r 16'1/8 D. (~' "I~;~;::.~~~..."l' , Printed . ",7;;,.'" My COUllty of Residence:, J-/lhni'/ hill STATE OF INDIANA ) ) SS: COUNTY OF _H A-NlJ~ ) ~f-A,I3~f:Jl.J A D'"PVI)' ht, Before me, a Notary Public in and for said County and State, personally appeared biana L. Cordray, Who acknowledged her execution as an attesting witness of the foregoing Agreement. W11NESS my hand and Notarial 'Seal this 3 day of Oe~,.bac 2001. My County of Residence: I//lm/L !-eN (1 ~~ 6? L~,... N Pub1':'>l" I..""ol;. otary ,. ~ ........ "~ \ ',' v..' .," '. ;- ...("... ~ l\,..-.i.'. WI'lJ ...,;.,..."..tL ~.-:. \ ,i.:):. ~ ~~:; ~ ,~ U~/51ii j? C1.\l.t...:~ jiij i P. ted . '\.' . " rn /~. j on \_.~~"o ............ .,,-., ",.(,0, <t "" .",f, "'I, \',-., 1- ~. """'11'1"11._1", v1~';'~ . '~'''If.~~' ~y C~i,~x~~9 15 . .. , STATE OF INDIANA ) ) ss: COUNTY OF f/A-MJt.:fOAh Before me, a Notary Public in and for sai4 County and State, personally ~eareo Wilbur Tyner. Jr., the President olE. & H. Mueller Development Company, LLC and who, having been duly sworn, acknowledged the troth and acCuracy of the representations made herem arid the _ execution of the foregoing Agreement. . _ 11f Witness my hand and Notarial Seal this 2- 0/ day of ~d.ffi?lissiOn expires: ~R. t> IDq ./;,-'4(\ ............ AAU -:....1 /~c,..t"~ iu~i1t~tof I1lVl!I-I'DtvCounty, Indiana ~ ~ . . , _ .11 t " ....... ..... ..,. A n~..', . it ...., \.' .' ~ ". .. '"" ,-."\ f ~. , . ,.-, I ...... ~ ..,: :) 'u: _.:- , . .... , ... ':)UO'l..\v: CI r~ . ~ : ",'.. ...." - ....... ~ ...1. I -.."........, \ If ,. '.,' D If)"..., -"\ Notary Public ::r: ;t1 (C#A-E L A/1/7;e! /VI Printed Name . This instrument. was prepared by and after ~rdingshall be retum~d to Robert A. Hicks, Attorney at Law. HALL, RENDER., KILLIAN, HEA11l '& LYMAN, P:S.C" 0ne American Square, Suite 2000. Box 82064, Indianapolis, Indi~a 46282, (317) 633-4884. Ol669rah,doe omrJIO I 16 , . . EXHIBIT A EXHIBIT A - LEGAL DESCRIPTION PARCEL B: PART OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 17 NORTH, RANGE 4 EAST OF THE SECOND PRINCIPAL MERfDIAN IN CLAY TOWNSHIP, HAMiLTON COUNTY, INDIANA, DES'CRIBED AS FOLLOWS: ' BEGINNING AT THE NORTHEAST CORNER OF THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 17 NORTH, RANGE 4 EAST OF THE SECOND PRINCIPAL MERIDIAN IN CLAY TOWNSHIP, HAMILTON COUNTY, INDIANA, THENCE NORTH 89 DEGREES 55 MINUTES 56 SECONDS WEST (ASSUMED BEARING) ON THE NORTH LINE OF SAID SECTIONS. A DISTANCE OF 1189.27 FEET TO THE EASTERlY UNE OF REAL ESTATE CO~VEYED TO THE CITY Of CARMEL, INDIANA, BY A DOCUMENT TITLED "CERTIFICATION OF CLERK" RECORDED IN THE OFfiCE OF THE RECORDER OF HAMILTON COUNTY, INDIANA, AS INSTRUMENT NUMBER 9709754648, (THE FOllOWING FIVE COURSES BEING ON THE EASTERLY LINE OF SAID REAL ESTATE) 1,) THENCE SOUTH 11 DEGREES 50 MINUTES 5.3 SECONDS WEST W1.07 FEET; 2.) THENCE SOUTH 86 DEGREES 32 MINUTES 20 SECONDS WEST 102.72 FEET; 3.) THENCE SOUTH 07 DEGREES 00 MINUTES 13 SECONDS WEST 348.84 FEET; 4,) THENCE SOUTH 12 DEGREES 02 MINUTES 32 SECONDS WEST 250.45 FEET; 5.) THENCE SOUTH 08 DEGREES 36 MINUTES 31 SECONDS WEST 1159,69 FEET TO A POINT ON A LINE THAT IS PARALLEL WITH THE NORTH lINEOF SAID SECTION 9, AlA POINT THAT IS 1872.75 FEET SOUTH 00 DEGREES 11 MINUTES 33 SECONDS WEST MEASURE,!} PARALLEL WITH THE WEST LINE OF SAID NORTHEAST QUARTER; THENCE SOUTH tl9 DEGREES 55 MINUTES 56 SECONDS EAST PARALLEL WITH THl: NORTH L1NEOF SAID SECTION 9, A DISTANCE OF 284 FEET. MORE OR LESS TO THE WESTERLY EDGE OF\yATER OF WHJTE RIVER; THENCE NORTHEASTERLY WITH THE Mt=ANDERINGOF SAIQ EDGE OF WATER TO THE EASt LlNEOF SAID SECTION 9; THENCE NORTHERLY ON SAID EAST LINE 107 FEET. MORE OR lESS, TO THE PLACE'OF 8EGlNNING, CONTAINING 29.628 ACRES, MORE OR LESS. . . I. , . . ( c ......., , ~ EXl!IB IT B STATE OF INDIANA COUNTY OF JiA,MILTON . . LEASEAm:~MENr -rAN. ZrYjD ~ THIS AGREEMENT entered into this r day ofDv~...1 d. ~> ~y and betWeen .The Belen M. Muener COllservafolr8hip. on behalf of Helen M. Mueller ofHamiltonCountr, State of Indiana., hereiwlfter referred to asLessor;. and Martin Marietta Materials, Inc., a North Carolina corporation mtb. its principal 6:Eficem Raleigh, Ne. hereinafter referred to as Lessee. WITNESs~m: - The Lessor~ its successors, befrs. admirrls1:rntorsor execUtors, foI and in consideration of .;.. . '.1- _ . . thes'umdf ONE DOLLAR the receipt of which is herebyanknowledged. and in further consideration of the covenants, agreements.and t1;l.e rentals and royalties hereinafter mentioned, . does h~y lease. let and co?-vey 10 thet.essee"its su~ors or assigns, fur thepenod . .r' described below all that certaiJ1 tract or parcel ofland (hereinafter referred to as "the Property"), situated in Ijamilton County, State of Indiana, said tract being more particularly descn"bed as follows: SEE A'ITACHED DESCRIPTION MARKED EXHIBIT ~ INCORPORAJED BY ~ERENCE HEREIN LEASE I. PURPOSE.AND USE.- . Lessee Shal.t;have and hold the Property together with the right of quiet enjoyment ~ with all privileges and appurtenances unto the Lessee f9r and during the full term Covered by this lease from the date this lease is brought into efl:bCt unless said. tenn is sooner tenDiuated as '. 1 "..., " ~I I I' , . . .". (i , . .... . . .' ",,'.-' fY- ,'/{ C' ( hereinafter provided. The purpose of this Lease is to grant all rights to the Lessee.for mining, . q~g. and removal therefrom. by blasting md otherwise, deposits of rock, stone. gravel. sand, sojl, limestone, minerals or earth asHlar exist on. in or under the Property (hereinafter collectively referred to as "Aggregate"), together with the full ail.d exclusive right, privilege and option of the Lessee to cODStruct., operate. or maintain mining, operate or mamtf!\n quarrying, washing, crushing ~d other plants,~hinery, da.ms, popds, can~s. power lines, pipe lines, telephone liena,-roads. railway spur lines, 8tockpile areas, buildings or offices, and'any other .rnBchinery or equipment on"the Property, wl;ri.ch in the sole: discretion of Lessee are required for . ' the p!OCessing or selling of Aggregate described in this paragraph from the Property or other landS owned or leased by. Lessee. ') n. TERM.. The term ofthis lease shall be fur a period of Twenty (20) years, starting D:om tho agree!!lent date above. This leas~ may be exteuded, by written notice to the LeSsor, at the sole discretion' of tile " Lessee, for four(4) additional five (5) year periods. ~e Lessee may tciminate tl:iis lease at the eD~ of the originallea.se tenn or any eXtensiQu tbereofby giving at least one-year's.notice of such intention. Hpwever, it isagreQrl. that thi.s does not affect the Lessor' slights and interest in ai.1y earned royalties or payments that may be then due. ID. PAYMENT; <a) Mlnimum Annual RentaL ~ The minimum-rental for caW lease year that this Lease:_tsin force is Two Hundred Fifty U.ousandDollars ($250,000.00). All ",inimnlI~ rentals shall be ,; 2 .." .'h., ....-..- ",' ... ,',-...-.. _ ..cd' ,..,." , " ': .1fr~n- "J -:-(1:.- . ".u'" l' ,"~ C' (0 deducted from {eredited against) any royalties earned during the lifeofthe Lease. The payment for each yearJ s minimum rental is to be made within thirty (30) clays fonowing the <md' of each lease year. The parties agree that Lessee may make a, pro rata payment for a pm,ofa year and thereafter convert to calendar years for purposes ofthe time deadl.iIJ.es herein. There is no requirement that Lessee continuously conduct.quarryin:g actIvity;ontbe premiSeS or that Lessee actually remove or sell $ne, sand or gravel from: the premises; it being the clearunderstandin:g of the partieS tbauhe minimum rental firirly compensates Lessor for the use of.the premises. . 1"he Lessor may make a o)ie-titne request for a prepayrQent of up to three - - - I ~ .. , .r (3) years of minimum. rental. or Seven Hundred Fifty Thousand Dollars . . ($750.000;00). This prepayDlent is to be used to pay potenti~ taxes on th~ . , property and will be advanced at no interest.. 'All oftbis payment willbe dedUcted from (credited against) any royalties earned and no minimum pa~entwill be made until this amount has been eamedthrough royalties. (b) RoyaJty. ~ , An. amount equal fDSiX percent (6%) of the ANSP (Average Net Selling Price), at the mine site, for each ton (2000 pouniiS) of Aggregate described in . ~ P~ph I removed and sold from the property (but noUo i11~lude "stripping: or " waste materials wbid are rem.ovedto facilitate operatiQD.SSs described il} , Paragraph vm. or minerals taken from other lands owned or leased by Lessee). the tonnage to be detemrlnedby ~eweight, sball be paid byL~see to Lessor. At the end of 10 years the percentage ~ be increased from Six percent (6%) to '. 3 .C " (. .- ""-..- ...... (. " . '.' . . ... .... ~~';-,~ . P"'--'---.-..---"C ._....__:-__._.._~_~_____..:...-__.... SI:ir. and one-half per""", (6-1/2%). The P3l'lllent ror any _ royalties from lIlaterials sold is to benuKIe within thirty (3'Q) days from the end of the IXlOnth in which such materials were removed and sold. However, it is agreed that regardJ"",ot ANSJ>, at no time will L..... pay Lessor 1... thaufurty Co:n1s ($.40) ror"",", Con ofAggrega", removed and ,old. The Lessee -. that it will PemUt the Learor audlor its - reasonable OP]lOl1unity to perfunn belbre and after S1l.l'Vey~ and to check.~ Lessee's operatioWl conducted hereunder. by """""""lion of the operation and sucl1 records as ma;y'be reasonably necessary fur Lessor to determine the 3Dloljnt of such materials removed and sold. Lessor . . . ' . .':'1.. _ I and/Or its _IS Sholl be allb;;..r to enler: the I'>operty and fly O..r the I'roper1y at any tim~ mutually convenient for the patties.. Lessor andfor its agents s.haU be allowed to conduct any ,"""onable inventory inspecti"" Or analysis ro detemtine quantity -..,fI)" With the fu1J COOPeration ofL....ee. o.erbUrden or slrippllg , . . 'uk, will be accOUD!i>d for s"J'alately from Slone sales, but P4l'llleut for J. overburden or Stripping soldsha11 be at the same pe~ent of ANSp (Average Net Selli.ng. Price) as for stone. The term ANSP (average net se~g price) as herein employed shaIJ:'be . . defined to mean the average 8lOSS return por net ton to Lessee lis shown by the iuVOiQ!ll from r.-e ro its CUSlotners, excluding therefunn sales and use laxes which are Separately and. distinctly shown on said invoices, transportatiOQ <Ie1IVery <h!lrge., c:nstomer diacouuts, all_ fur JllOductrotumed by CUS1on:ters, or any other reductions in.gross.revenne to the Lessee. 4 1 i ., ,. I' r: ~j . [j: I~ ~;j; H, ~; , I; "fi ~ I .'1 , f' I If ~! ~" .,:' ,,' ~I: ~L ~~ ~;, tli'; l",~ ~'" S:~ ,.1' if /' '1,. '"11- I,;;: i:, ; .., l ~} . [.j I ~ . -=-"""",--{': -----..- (- It is further agreed that fi:om time to time the Lessee may need to move material from Lessee owned or controlled property under or across the Lessor's property. The Lessee shall pay Lessor a royalty of two percent (2%) of the Average Net SellingPrice at the mine site for each ton (2000 pounds) of A.ggregate which is mined, quarried or extracted from these other lands, and transported Under or across or sold from the Property. Th.e Lessee agrees that it ~ll penn.it the Lessor~or its agents reaSonable opportunity to perform before and' after surveys and to check the ~seeJs operntio~conducted .hereunder, by examinaticm ofthe operation and such,records .as may be reasonably necessary for Lessor to detf;lminethe amount of Such materials transpo~d under or across or ../ IV. sold from the Property. ADDITIONAL ImSPONSIBILITIES OF LESSEE; lNDE.MNlTY OF .}:J!:SSEE; RELF..ASE ,BY LESSOR . >;' The LeSsee shall be responsible for attempting to obtain the vacation of Old River Road south of l~ Street, at jts expense. The Lessee shall refrain from any dumping on or contaminating of the Property d1.1riug the term ~fthis Lease Agreement and any extensions ".; ~. ... thereof. The Lessee shall properly secure andmamtain the Property during the term. of this Lease Agreement and any extensions thereof. The Lessee and its successors and assigns during the term of this lease, agree it will inde!lil:litY and save hannless the Less,or against aU claims, judgme:ots,liabiliti~sr fines, penalties()r~enses caused by Lessoos'..mining operation or: related use of the ProPertY,. And ,the' Le$Sor, for itseIf;.its heirs, executors and assigns hereby release the . . Lessee and its successors and assigns frooi any and all damages that might occur to the Property ;;---- by exercisfug 1he rights set forili: in this agreement 5 --..--.:.......:. I' ~ ~ Ii Ii II " j. -ij :'1 I:. .. ,. I I:: h .. ;i ,.! j: to .: ::. I~ I ~l ". " I' -........:.~~~'. -.. ( ( V. DEFAULT: TERMINATION" It is agreed between the parties,bereto tlroHfand wben the Lessee is proved 10 be in default of payment ofany rentals a:nd/or royalties due hereunder as set out in Paragraph m~ Lessor may give tp.e Lessee written notice via-certified mail return receipt reque~ of the amount due an.9,- i~ mtention to terminate this lease. If such payments then due are not paid , witWn thirty (30) days from the date oil whichthe"Lessee ~ives such notice, the Lessor may then. declare the lease terminated, but otherwise this.lea.!)(: is to remain in full force. VI. WARRANTY AND INDEMNITY BYLESSQR. The Lessor warrants that at the time of execution of this LellSe: Helen M. Mueller is the -, ' , ~ ' , owner of the Property in fee; it has fulll!fgbt to lease or sell same (subject,to CoUrt approval as specified in Paragrnph XX); and that the Property is free and clear of all encumbmnces except . leases of rental homes and ~ and that (except to the extent specifically provided r , ~ otb.e:nwis~ in this lease) Lessee will be entitled to full and exclusive possession ofth.eProperty. The Lessor makes the warranties and repres~tations set forth in Exhibit B attached hereto and incorporated herein. Lessor agrees',to indemnify Bnd. bold 1he Lessee harmles.<) against ' any claiin, fine, penalty> 8SseSSlnent. cause of'action, clean,up costs, or oth:er expense incurred by or billed to Lessee arising out ofor in connection With. the b:ri::ach ofony warranty or 'representation contained herein. VII. roqm OF REFUSAL. In the event that Lessor receives a bona fide offer to purchase all or any part of the ' . Property-or'all or any part of Lessors' property adjacent to.the leased premises, which Lessor intends to accepi:;. ~essor shall first offer in writing to ,sell to Lessee the Property or adjacent PrQPerty, or portion thereof (as the case maYbe). forwbich the offer is received, at the saDie ; " . 6 ---- I I , t ! " C' (' price, terms and conditions as set forth in the offer. Lessee shall have sixty (60) days from receipt oifue bona fide offer in which toexeroise this right of refusal. This right ofreibsal shall . exist~uring the term of this Lease Agreement and during any renewal term.. This right of refusalsliall also continue to eXist subsequent to a failme to exercise by or Lessee unless andu.ntil Lessor actualiy closes on the sale of the Property or part thereof Even if Lessee determines not to exercise its right offust refusal., this Lease Agreement .sball be binding-on aay person acquiring the, leased premises {or any part thereof} during the . terin of this lease agreement{mchlding any renewal tcnn). VIU. STRIPPING: OVERB:oRDEN. - It is agreed that "stripping1' or '~'~verburden" that ID:u3t be removed fro~ the material to be . ~ ..' J. r . ~ . . processed to commence and expand the mining operation., or material.that must be leveled or removed for the building of the pIant site, dams. roads, stockpile areas, or other areas needed for I' mi;oin~ purposes, are~asf:e material. '!be Lessee is ~d the.right without liability or payment of royitlties to use the overburden or Waste material. on the' Property, to give ~ overburden or waste material away, or to waste or stockpile it on the PrQPerty or to remove it from the Property . l~ to waste,or use.in the maimer and by such: means within the S()lediscretion of the Lessee it . deenis best. However~ if Lei3sor giVfl3 Lessee reasonable notice 1hat LesSor wishes for such .oyerburden or v.rast:e material to be pla.cedon lap&]. which is near or adjacent to "the leased premises, Lessee shall comply with such wisheS, subject to obtaining the necessary permits to do . . ,.~ . so. IX. R,ELATED INDUS~. This Lease Agre,ement is made in order that th~ Lessee may enter on the Pro~ for the purposes ~ set out in this agreement; ~owever. tlie parties agree that before Lessee may 7 C" ( authorize the operation of any related industry Of activities on the Property wmch would facilitate or increase the sale and/or marketability of the materials menti6ned inPaiagraph I, Lessee must first obtain written approval ofLessor..wbich approval sbaIlnot be unreasonably v.rithheld. Lessee shall not assign or sublet without first obtaining written approval oILesso~. '?Ihicb. approval shall not De unreasonably withheld. Lessor specifically reserve:;; the" right to negotiate ~ipt of a portion of any revenues robe received by Lessee as a result of allowing such related industries. . " X. PERMITS; COOPERAIIOl'J OF LESSOR. The Lessor agrees to assign to the Lessee any existing permits in,its possession or constfiictive possession which are assi~ble arl.<i that"are re~e4 to a mitring operation on the Property. The Lessor also agrees to take SllchactiOD as Lessee may reasonably request in order to assist Lessee i1;1 obtaining any additional zoning or permits required for a mining operat:ion on . . "the;Propem. provided any expenses incurred for zoning or: permitting will be bome by the Lessee: The Lessees shall obtain the written approval ofL~sor'of an)" proposed land use plan or zoning chmge, includi.og a.esthe1kconsiderations such as mounding. and a fu1a1 configuration or m ining p'1~ before submitting such proposal to the CiIJ of Carmel or administrativeaut!lo~es. , Such approval shall not be unreasonably withheld. XL LESSEE RIGHTS. OBLIGATIONS AFTER TERMlNATION()!i' THE LEASE. /' (a) Removal of Equipment. At the option of the Lessor, Lessee sb.aJ1"ha~ the obligation to remove any and/or all of the equipm~,Ui.tludi:Dg rail spurs, :facilities, or biJildingS frOm the 8 'C" " (, , - Property'during the tean of this Lease and within two (2) ,years after its termination. (b) Redamation. The Lessee agrees: and covenants with the Lessor that it will. at its sole expense, reclaim and refurbish the I,and upon which the ~g ope~on takes place to the extent required by the .federal and state mining laws and complete the - . reC~on within two (2) 'years from the date this Lease is teoninBted. f.f required bylaw, prior to conducting any mining operation the Lessee will obtain all necessary federal and state licenses and permits for conducting said quarrying operation.._CoDlpliaric~ ,~~ the state recl~,~tio~ piau sball b~ d~ed compliance with the reclamation requirements of this Lease Agreement. (c) Loading ofStoekpiles. Lessee shall be allowed.aperl04 of one (l)year during which it can . I remove or sell stone from any stockpiles which femain Ot;l the Property at the date of termination of this lease. During this.time Lessee shall ~ot be subj€Ct td the nlinimum aiinual rental, but shall pay ~yalties as set forth in Paragraph IiI(b) . above for stone sold. ~see shall be alloWe9 f~oD?ble ingress and egress to ... "-Jo . stockpile and scale areas as needed for loading and weighing. After this oue (1) ,. . . - year period, st9ckpilesreOJRining shall become the property of the 'LesSor. xu. TAXES. . The Lessor shall pay real property taxes assessed against the Property~.in the base amomrt for 1999 payab~e in 2000. Any increase in real pooperty taXes thereafter shall.be paid,by LesSee. . 9 (0 c . XlII. ;ENCUMBRANCES. Lessor may mortgage the property. Le.ssor shall be required to pay when due all principal .and interest due on any mortgages on the Property. . In the event that Lessor fails to make such L paym~. then the Lessee may pay offandlorsatisfy any and all mortgages or liens against the within dmni.<3ed premises as it deems apPlVpriate. Such payments made on any rilortgage or lien by the Lessee for the account of the Lessor may be deducted from anyammD1ts that might be ) . owed to th,e Lessor under the te1lJlS of this Lease. It is further understood that the Lessor 'Will notifY the Lessee of any action that may be taken to foreclose on the Property due to any . . .' . mort~e or lien not paid offby the Lessee. . . . . - XIV. LESSOR~S. USE OF LANp=TIMBERRIGBTS. ... -. . ; ~ .. Notwltl~standing an)'tlfm.g herein.to the contrary. Lessor reserv~ the tiglitto use ~ lease the farmland ani rental homes on the property until notified by Lessee that l..essee intends to I _ ..' a.ctively min.e a.certain area, and no'tice ~hal~ be 'given by I;-e~at least one hundred eighty (180) aays in advance of any mining activity in :such area' Lessee sball provide Lessor. with its ' , . best estimate ofthltl year's mining plan by January lilt of each year, ~ that Lessor can plan on wha;t use odease ammgements should be made for fannl~ and rental homes. Bx:eept as limited below, Lessor reserVes the rigJ;1t:to all timber products onthe Property. Whenever the Lessee desires to clear a portion of the Propertj, it mau notify Lessor of such intent and the"Specific area to be cleared. Lessex: sballha-ve ninety (90)days: after such. Dotice in wbichto remove its timber products. All timber products which are not removed by Lessor from. the area designated by Lessee within such ninety (90) day period shall become the property' of . ' Lessee, and Lessor shall have no further right to the timber prOducts witbjn such area; provided, 10 C' (~ haw ever, that no timber' or underbrush shall be removed from the area. within 300' of anY property boun~ without written agreementefboth parties. XV. FORCE~.pi;JIR!C. A party will be excused from entire or part performance under this f,\greement to the extent such peIfomumoe is prevented by Force Majeure, provided 'that the party so affected shall give th~ other parties yerbalnotification within twenty-four haUl's of the claimed Force Majeure . , event foUowed by written notice containing an cst.i.mate of the duration of the Foree'M.aJ~m-e and . the impact thereof: The ~IIIl: "Force Majeur~" shall include alloCations, expropriations, requisitions. priQrities, restraints or other acts of governmental" or civil, militmY. or naval authorities (whether acti:li,g.1egally or ?therwise~; Acts of God or the elements.. perils or accidents . ... . ~ . M . . / of the sea or other watersj Catastrophic failure or breakage in h~ maclrinery, equIpment or- appliances~ acts of war.. hostilities, interferences of public enemies or belligerents; rebellion, civil str;ife, ,or commotions. sabotage, VRndllli!mi. or malicious ~schief; rio1.$.strikes. lah?rdisputes, or distw:oances; fire or explosion; or from any cause 'Whatsoever oeyond the reasonable control of the respective party (other.~ financial or economic incapacity). whether of the kind enumerated or oth~e, ~ch prevents the 1I1.i$~ storage, loading, tran.sporting,~recei'Vi.ng ot delivery .of any Royalty Ma.terial. Such excuse from performance shall continue until such Force Majeure is el.i.minatedor c~sestoexist,provided the party or parties affected by 3Uch Force' . . Majeure shaJ.}-use commercially reasonable efforts to e1imID.ate such cause as promptly as possible recognizing, however, that sett.lementof any strike or,o$er labor dispute shall be solely, f' within the discretion of the ~ involved in such strike or labor dispute. 11 C'. c XVI. ~DmS. In the event that legal action is ne(:~ssary by eitherpsrty to enforce any provision afth.is Lease Agreement. the prevailing party shall be entitled to recover the expenses thereof, including reasonable attomeY'1i fees. The Jaws of the state in which the subject prOperty lies shall govem this agreement. The partie~..... ~ee that theappropriafe venue for IiDY legal ac:tion shall b:eHamilton County, Indiana.. XVU. NOTICES. - . All notices- sent. to Lessor shall be.mailed'to both.: Mr. and Mrs.. Erv Bruks 11173 Hazel Dell Parkway Inclianapolis, IN 4628p.., And 'copied to: 'and Mr. B{ic dark 14333 N.Gray Road Carmel, ~ 46033 . ,~~ J. Michael Antrim CIru:RCH. CHURCH,.HITILE (t ANTRiM 938 Conner Street; P.O. Box 10 " Noblesville, rn 46060 or ~ "'. M notices sent to Lessee shall be mailed to: - Mr. Robert M. Furlong Vice President & General Mailager Martin Marietta Materials, Inc. P.o. Box 549. Cannel, Ttttli$!nll 46032 And copied to: " Ms. Pallia J. Buehrer Real EstateIProjects Manager' Mm:tin Marietta Materials,: Inc. 7~O N. Valley Road Xenia, OH 45385- .-" 12 - (- (' xvm~MEMOIMNDUM. The parties agree.that the Lessee sball prepare a memorandum of this agreement ina form Suitable for iecordatiOI:L Both parties agree to properly execute this memorandUlIl.. and it shall, at theop.tion of the Lessee, .berecorded. XIX. iIEms. ASSIGNS: .This Lease shall bind and inure to tQe benefit of the parties and their respective heirs, , I .' , . ~ successors, assigns, representatives, or executors. xX. .ENTIRE AGREEMENT. This L~ Agreement contains all of the agreements betvveen the part::les and no representations' or statements not COD~~ed herem.shall be ?!-n~ upoa either party unless , endors~ herein in writing. No amendJnent or m.odification to this lease nor any waiver of rights hereunder will be effective unJessinwriting and signed by both parties. XXl. ,COURT M~OVAL. , / . It is agreed that this Lease Agreement shall not be 'bindlng upon either party until it is . approved by the Hamilton County Superior Court No.1, the Court.which has jurisdiction over the Conservatorship of HdeD. M. Mueller. 13 .( r.' IN WITNESs WHEREOF the parties hereto have affixed their hands and seals and . . ex=ecuted this agre~ent in duplicate originals the day and year first above written. Social Security Number of Helen M.Muel1er LESSOR: 305-40-20% ,~~~ Eric Clark, Co-Conservatots ...." ~~k BettyB cO..conservatol'S' ' ~. til~ . Bruks. Co-COnservator:S MARTIN MARlE'ITA MATERlALS~ INC. . rf ... By: Stephen P. Zelnak, Jr. C~ President-and CEO Attest: .\ R.. Pax:ton Badham, Jr. Assistant Secretaxy . STATE OF INDIANA ) ) SS: COUNTY OF HAMIT.,'roN..j I, ::r. M. A- m-R.I tv\ . . a Notary Public for and in the afo['~a.id . County do hereby cert:i:fjr that Eric Clark, ErvBruksand Betty Bruks pmonally lIPpe~ before . me tl1i~day Bndbeiog by me first duly swomdo hereby ackriowledge tire due ~~on of the .fore.go~. ~ement for tbe~UIpOliesherefu expressecl . . '. TN . " . ',,' . ':itt>ess my blllldlllld official seaI this t.f day of _ ~ ~ _ · MY~COimm/~~,Sjon'~Zxpires/: ~-~:~- -:tfi< 'M Nma;y~liC"" 10 - -, - 00. Residing in Hamilton County I Indiana .' 14 .'_ ...... .-".... ...., .0'" ,......~ .. .',. .'. ..' c (- IN WITNESS "MIEREOF the parties hereto have affixed their hands and seals and executed this agreement in duplicate origIDals'~e day and year first above written. Soc.iat Security NllIDber of Helen, M. Muell~l' LESSOR: 305.40-2046 Eric Clark. Co-Conservators -'" Betty Broks, Co-Conservators Ervin Bruks, Co-Conservators MARTIN MARIEITA l\-1ATERlALS, INC. By: . &~9, ~~~. Sleph;{P. 2eJ.nak. . Chairman, President and CEO Attest: i '~N~ }:tOB 1yn ll.. lls. ,T ) Corporat~ Secretary STATE OF INDIANA ) ) SS: cotfN1:Y OF HAMlL TON.....) I, . a Nobly Public for and in the aforesaid Co.unty do hereby certifY that Eric Clark:, Erv Bruks and ,Betty Bruks personally appeared before me this day and being by mefList duly sworn do hereby acknowledge the: due execution of the foregoing agr~ment for the ~lU'Poses herein expressed. Witness my hand and official seal this day of ~ 19_" My Commission Expires: Signature Printed Notary Public Residing in Hamilton COWlty, Indiana ~~;.:" .~~ .~i)1 ... ~..~~. :~.~ C' C" STATE OF NORTfI CAROLll'lA ) ) Ss: COUNTY OF WAKE ) . .J, ,M"argaret M. Lannen, Notary Publicr do hereby c"!fiiy that Stephen P. Zelnak,Jr" . President of Martin Marietta Materials. Inc., personally appeared before me this day ofbemg by me duly swom,says that he executed tbiSagree.ment for ptupose therein expressed for and ill behalf of the said Martin Marietta Materials, mc.and as its act and deed. WITNESS my hand and official~, thisdl/.....r day of /;:.rp-h'1/Je /' ,19tf. My Oommission Expires: . Signature~~)J! o71Af4l4;{ .' , Printed .' .lJtdR~AP Gr AI. LltA'Dew ""'" . -,', i.//7/?j)cJO . - Residing in Wake County, State of North e.~~a I - f ' ~ ~.- .. ElUillllT A "Th.eprOperty" ill 'outlined: ol:l the aU:acbec'l drawing. 'There will be no l!Ul'facamini.Dgon thuiucro lIild Dine acre peroe].s shown on this Exhibit Miutin Marietta MaterisJs, Inc. shall.fill mch pm:els 'With. appropriatequaIity sna..terlB.ls to-the Co-CoOS8l1'!ltor's reasonllb~ i1ttisfaction. U~llI'groU11dminiDg ammgemclltnnder these six aod nine' :!erepDrcels shall bu only by mutual agreement of the parties. . , r :... ; -~ po 3 i ; . J ~iJ tJi a: . ill z ''''t ij ,. _ ffih :. trJIl .": =1 . " T ~ JDO :- 7~ ,. rnnn: , I" : ~ ~ ~:~ .. 11M' ~~!l; I I - It ..... ATTACHMENT 1 Part of the North half of Sec1ion 9, and pm of the South half of Sectjon 4, an in Township 17North, Range 4 East of the Second Principal Meridian in Clay Township, Hariillton County, Indiana, described as follows: " . Beginning at the Northwest comer of Section 9, Township 17 North. Range4 East of the Second Principal Meridian in Clay To'wnship, Hamilton County, Indiana; thence South g9d~grees $5 nnDutcs 56 seconds East (assum.ed bearing) on the North lIne of, said Section 9, a distance of 3302.24 feet; then~ North 00 degrees 04 minutes 04 seconds East 16.50 feet; thenceNorlh 60 degrees 23 minutes 05 seconds East 57.55 feet~ thenr:.e North 89 degrees 50 minutes 43 seconds East 254.47 feet; thence South 81 degrees 22 minutes 39 seconds East 198.24 feet; thence North 25degrf::es 45 minutes 13 seconds East 1126.18 feet; . thence North 21 degrees" 15 minutes 23 seconds East 576.29 feet; thence North 07 degrees 37 minUtes 09 seconds East 180.00 feetto a point on a linethatis.parallel with the South line of said Section 4, and extends Easterly from a point on the East line of the SQuthwest Ql,lartet ofisaJd section 4 that is 154.10 feet North of the Southeast comer of the North half of said Southwest Quarter; thence North' 89 degrees . 55 minutes 56 seconds West on said line 17fg,86 feet to the aforesaid point.on the East line ofsaid Southwest Quarter, being also the East line of Kingswood 'Subdivision, Section Three, a subdivision in Hamilton County~ Indiana: the secondary plat of which, as amended December 22, 1988. is recorded in said Recorder's Office aslnstrument Nwnber 8900204 on pages 111 and 112 of Plat Book 16; thence South 00 degrees 07 minutes 43 seconds West on the East line of said Southwest Quarter 154. to feet to the Southeast corneroftl1e North half of said Southwest:Quarter; thence Nortl;!. 89 degrees 51 mi,Dutes 18 seconds Weston the South line of the North luUf ofsaid Southwest Quarter l521.03 feettothe Northeast oornerof real estate conveyed to the City of Cannel, Indiana, per a Deed recorded in the Office of the Recorder"ofHamilton County, Indiana on page,865 of Deed Record 329. said comer being 1146.65 feet Eaitofthe Northwest comer of the South half of said Southwest Quarter; thence South 00 degrees 27 minutes 42 seconds West on. the East line of said reale~tate,918.7S feet, per the aforesaid Deed. (919.89 feet by measurement) to the Southeast oo~r of said real estate, said comer lying on a line that extends South 89 degrees 51 minutes 29 seconds East, measUred paraUel with the North line of SQuthha,lf of said Sou.thwest Quarter from a point on the West line'of said Southwest Quarter thatis 406.45, (eet North 9f tbeSo1ithwest comer of said Section 9; thence North 89 degr.ees 51. minutes" 29 secon~ West on said line and the Westerly .ptolongaiio'n thereof, a total disqmceof 1145.58 feet"per the aforesmdneed, (1144.55 feet, by-measurement) to the aforesaid point on the West line of said Southwest.Quarter, said. point being also the Southwesterly comer of real estate conveyed to 1he City ofCarm.el~ Indiana, by a Warranty Deed. recorded ii1 said Rewrder's OffiCe as Instnunent.Number 8726638; thence South. 00 degrees 19 minutes 51 sooon.ds West on the West line ofiheSouthwestQuartel'ofsaid Section 9; a distance of 406,45 feetto the place of beginning. . . . , . " ATIACHMENT 2 TRAcru The WestHalfofthe Notthwest,Quarter of Section 9, Township 17 North, Range 4 East. containing 80 acres, more or less. AJso: Pari of the Northeast-Quarter of the Northeast Quarter of Section. 8, Township 17 North, Range 4 Eastin Hamilton County, Indiana, more particularly described as follows: Beghmingat the Northeast corneroflhe Northeast Quarter of the Northeast QuatterofSectlon 8, Township 17 North, Range 4 East; the1lC~ North 90 degrees 00 minute~ 00 seconds West (assumed bearing) on and along the North line of said Quarter Quarter Section, 510.00 feet; thence South 00 degrees 31 minutes 05'seconds E~t parallel with the East line of said Quarter Quarter Section,. 220.00 feet; thence North 90 degrees 00 minutes.OO seconds West parallel with the North lin~ of said Quarter Quarter Section, 198.00 feet; thence North 00 degrees 31 minutes 05 seconds West parallel with the East line of said Quarter Quarter Section,. 220.00 feet to the North lineofsaid Quart~ Qmtrter section; thence North 90 degrees 00 minutes OOsecond~ West on and along the North line of said Quarter Quarter Section 628.69 feet to the Northwest comer of said Quarter Quarter Section; thence South 00 degrees 20 minutes 00 secoilds East on and along the West line of said Quarter Quarter Section 1323: 18 feet to the Southwest comer of said Quarter Quarter Section; thence North 89 degrees 59 minute!,! 15 seconds East on and along the South line of said Quarter Quarter Section 1340.96 feet to the Southeast comer of said Quarter Quarter Section; thence North 00 degrees 31 minutes 05 seconds West onaJld along the East line of said Quartet Quarter Section 1322.90 feet to the Northeast comer of said Quarter Quarter Section and the place of beginning, containing 39.66 acres, more or less; Except: Part of the North$a"st Quarter of the Northeast Quarter of Section 8, Township 17 North, Rmge 4 East ofthe second principa}.meriwan, Clay Township, Hamilton County,Indiana, described as follows: Commencing at a railroad spike found at the Northeast comer of said Quarter Quarter Section; thence along the North line. of said Quarter Quarter Section Nortl189 degrees 18 minutes 06 seconds West 439.23 feet to a point; thenceSouth 00 degrees 11 minutes 19 seconds West 40.00 feet parallel with the East line of said Quarter Quarter Section to a 5/8 inch rebar with cap biscriJ,ed !IRS Firm 0018" on the.South right olway line ofi06tb Street as described,in Instrument No. 95-52806, and the point of beginning of this description; thence continuing South Oadegrees 11 minutes 19 seconds West98.6S feetparallel 'With the East ,line of said Quarter Quarter ~ection to a 5/8 inch febar with said cap at the edge of water; thence along sSid edge of water for the next sevencolIDles: 1.) thence South 19 degrees 12 minutes 08 seconds West 74.14 feet'to a S/8 inch rebar with said cap; 2.) thence South 35 degrees 50 minutes 23 seconds West 52;44 feet toa.S/B inch rebarwith said cap;.3.) thence South 83. degrees 16 minutes 59 seconds West 189.29 feet toa S/8 inch rebar with said cap; 4.) thence North 84 degrees 05 minutes 58 seconds West 63.91 feet t(> a 5/8 inch rebar with said cap; S.) thence North 54 degrees 44 minutes 10 seconds West 32.25 feet to a 518 inch rebar with said cap; 6.) thence North 13 degrees 29 minutes 11 seconds West 54.25 feet to a 5/8 inch rebar with said cap; 7.) thence . . , North 12 degrees 15 minutes 34 seconds East 26.86 feet to a 5/8 inch rebar with said cap; thence North 45 degrees 00 minutes 00 seconds East30.51 feet away from the said edge of water to a 5/8 inch iebar with said cap. thence North 00 degrees 11 minutes 19 seconds East 109.16 feet parallel with the East line.of said ~arter Quartet Section to a 5/8 inch rebar with said cap on the South right of way line of said 106 . Street thence 8outh89 degree.s 18 minutes 06 secondS East 52.84 [yet parallel with the North line of said Quarter Quarter Section and along said South right of way line to a 5/8 inch rebar with said cap;thenceSonth 00 degrees 11 minutes 19 seconds West 180.00 feet paralleL with the East line of said Quarter Quarter Section to a 5/8 inch rebar with said cap; thenc;e South 89 degrees 18 minutes 06 seconds East 198.00 feet parallel with the North line of said Q~er Quarter Section 59 a 5/8 inch rebar with said cap; thence North 00 degrees 11 minutes 19 seconds East 180.00feelparaUel With the East line of said Quarter Quarter Section 569 a 5/8 inch rebar with said-cap on said Soi.t1h right of way line of 1 O~, Street; thence South.89 degrees 1.8 minutes 01$ seconds East 70.77 feet parallel with the North line of said Quarter Quarter Section and along said South.right of way line to the point of beginning containing 0.823 acres, more or less. Also, *eWest Half of the Northwest Quarter of Section Nine (9), Tovmship Seventeen (17) North, Range 4 East, containing 80 acres, more or less. 04121rah 2 . .. , ATT ACHMENT.3.. ~ t ill : '. l'i.../OOI ::::~I; ~r.t:.._lf:(,) - ,~ 5'i.3 6 t:f.n-"i- (, . a ,I. ~c..) _1>;t>j!'tNSu/ ""I fK' 4! {Drutl. sr. .f7'!'pD~tt:~l f!.../~ -HoJcnetf AfeIJ (51:S- /:.00'Ier) ::'": 1}r;..)1f15 r;.j-"'" (1.01 "l(.) -7 w: \!:s Gc 11;TItJ 61 P-"4J 2', zOb A- ~ ::= /e,. i15 c:.... (Q.J.l2.t) - /<.W 'in g; :. of 2) . . . o EXHIBIT C (Page 2 of .~) '. , ~ ~,. ;:' ,< ',~ ,;::~t~ii .~" /~~: E.'XHI.BIT D !Q!I1! of Path Easement Parcel Agr~~nt Cross Reference to Prior Deed ofRerord: County, Indiana Recorder's Office -..~~....- . in tbeHamilton EASEMENT AGREEMENT This Easement Agreement (this "Agree~eritll)is made and entered into this. ______day Qf . 2001 by and ~tween THE.HELENM. MUELLER CObTS~VAmRSmp~ C'Grantor') and THE CITY OF CARMEL. INDIANA by and through its Board of Public Works and Safety (lIGi-antee"). REeIT ALS A Oranto,r owns certain real property (the 'uGrantor Parcel") located. in HamilionCounty, Indiana more particularly described as follows: ' [INSERT LEGAL DEScRIPTION imRE] . R. GtlIDtee~ in CfJnnection with Grantee's pathways system desires, apetmanent easement over a portion oftl1.eGraDtOl'.Parcel which permanent easement area (hereinrefer.red to as the "Path Easement Parcel") is :tnore particularly described.as follows: [INSERT LEGAL DESCRIPTION HERE) NOW. THEREFORE. in coDsidenrtlbn of the foregoing recitals, all of wbichare incorporated h:ereiIJ, by thisreference,and of the grants of easements and the mutual promises .and covenants set forth herein, the parties beteto agree as folloW's: - 1. Grant . of Permanent Easement Grantor hereby grants and conveys to Grantee an exclusive, perpetual easement over, under, thrOugJi'arid acr:Qss the ~a.1h Basement Parcel for the-pw:pose of provldfuga tenfoot (1O~ wide public path fot walking, running, Hiking, rollerbJading~ bicycl1ngmicl other . fonus of p~estrjan non-industrial. access, as welt as for use by motorized and non':rilotorlzed City. mainten1ul.ce vehicles. The Path Easement Parcel. ~~lbe used to conilect t!1e: existing path. system servingCarmelot Park to any future path within the right of Wl\lY 6ft 061f1Street between Gray Road and Haze! Dell Parkway. Further, Granteesb,aII havethecright;to :remove BJ1.yfen~,stiuctures' asphalt or concrete paving, cUlbingor other improvements, trees, bushes and earth berming that exist prior to, as of the tbneof; or after Grantee's 'acquisitio~ of sucheasemerit 2. City's Ri~t19 Relocate Path Easement Parcel. If an artificiallue is created in the vicinity of the '.possible future lake area" shovro. and depicted on Exhibit.A) City shall have the. right solely at City's expense to relocate the Path EasementParceI within the a.rca. included as the boundaries of Exhibit A so that portions of the route are p1"6xfu1ate to the artificial lake. Inaddition~ at one otmore (but Dot more than three (3)) locations where the'rOute is so proximate to the artificial lake, City shall be.'petmitted to expand the Path Easem~t Parcel to accommodate path improvements and aCcoutrement. including without limitati()I1, picnic tables, playgroimd equipment, benches and shelters. Such expansions shall' be of a shape, configuration and design detenninedby City, but not larger than 0.10 acres each. At the time of any s}l.ch telocanc)U Of .the Path Easement Parcel. City shall caus~ to he prepared and recomedin the H1UJJilton County, IndiSJUl Recorder's Office a revised description of the Path Easement Parcel. City shall upon any such Tl:flocation'ofthe Pa1h Easement Parcel, vacate and release of record. the prior description of the Path Easement. Parcel, demolish and remove any improvements related thereto and tetum the' disturbed area to its natural condition by rough and finish grading and' seeding ofsucb area. 3. Obligations of Grantee. Grantee sball maintain the Path Easement Parcel in good C()ndition and repair and shall remove andIoneplace the same as necessary. 4. Rights Retained by Grarltor, Grailtor shall retain unto itself, and its grantees, heirs. successors and asSigns, and others to whom Grantor may grant rights or easements, the right to use the Path Easement Parcel for any and all purposes and uses not inconsistent willi the foregoing easement acquisition by Grantee. . 5. Easement and CovenantsA-ppmtenant The easements granted, created and made herein, together with the benefits thereof, shall ron with the Grantor Parcel and inure to the benefit of Grantor, Grantee and their respective grantees, successors 8.Ild assigns. Theeasemenw granted, CTe:!ite:d and made herein, together with the burdens thereof, shall run with and bind the Path Easement Parcel, and shall bind Grantor and its grantees, su~sors and assigns. All covenants and agreements of the Grantor and Graot~herelU1der, together with the benefits and burdens there<Jf. shall ~ deemed to be real covenants which touch and concern the Path Easement Parcel and the Grantor Parcel, as applicable, shall run with the Path Easement Parcel and the Grantor Parcel and shall inure to the benefit of and be binding upon Grantor and Grantee, as applicable, and their respective grantees, successors and. assigns. All covenants arid agreements hereunder may be enforced by an action for specific perfonnance, and in the event that a . party breaches any such covenan.t or agreement, the other party may exercise any remedy available hereunder, at law or in eqUity, and recover from the breaching party aU amoWlts expended in connection with exercising any such remedy.(including without limitation, court costs and attorneys' fees). 6. Qpvernirig Law... 'This Agreement shall be governed by, and construed in accordance with, the laws of the State of Indiana. 2 " IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the date first written above. GRANTOR By: GRANTEE CITY OF CARMEL. INDIANA, by and through'its Board of Public Works'and Safety Printed: Title: By: James..Brainard, Presiding Officer ,I Date: By: Mary Jum. Burke, Member Date: By: Billy Walker, Member Date: AITEST: Diana 1. Cordray. lAMe Clerk-Treasurer Date: 3 " "," ~ ;~~.': . , " STATE OF INDIANA ) ) ss: COUNTY OF ) Before me, a Notary Public in and for said County" and State, petso~lya~ . the of Grantor and who, having been dulyswpm, acknowledged' the:' troth and accuracy of the representations made herein and the ~xecution of the foregoing Agreement Witness my hand and Notarial Seal this _ day of . 2001. My commission expires: Notary Public I am a resident of County, Indiana Printed Name STATE OF INDIANA COUNTY OF ) , )SS: ') Before me, a Notary Public in and for said County and State, personally appeared James Brainard, as the Presiding Officer for the City of Cannel, ~ndiana Board of Public Works and Safety, who acknowledged the execution of the foregoing Agreement. 'WITNESS my hand and Notarial Seal this day of , 2001. My Commission Expires: Notary Public :My Coooty of Residence: Printed 4 . . i . 0" J COUNTY OF ) )88: ) STATE OF INDIANA Before me, a Notary Public in and for said County and State, personally appeared Mary Ann Burke, whoacknow]edg~ the execution oflhe foregoing Agreement. WITNESS my hand and Notarial Seal this . day of ,200L ,My Commission Expires: Notary P.ublic My COWlty of Residence: Printed COUNTY OF ) ) ss: ) STATE OF IND1ANA Before me, a Notary Public in and for said County and State, personally appeared Billy Walker, who acknowledged the executi.on of the foregoing Agreement. 'WITNESS my hand and N otariaJ Seal this day of ,2001. My CoIlUJlission Expires: . Notary Public My County of Residence: Printed 5 ... :). '""_::. , STATE OF IND1A.NA COUNTY OF ) ) SS: ) Before me, aNotaryPublic in' and fonaid County and State, personally appeared Diana L. Cordray, who acknowledged her execution as an attesting witness of the foregoing Agreement. WITNESS my hand and Notaiial Seal this day of ,2001. My Commission Expires: Notary Public My County of Residence: Printed Thisinstrwnent W{lS prepared by Robert A. Hicks, Attorney at. Law, HALL, RENDER, KILLIAN, HEATH & LYMAN, P.s.C., One American Square, Suite 2000, Box 82064, Indianapolis, Indiana 46282, (317) 633-4884. RetUrn following recording to: Robert.A. Hicks, Attorney at Law, HALL, RENDER, KILLIAN, IlEA TH & LYMAN. PB.C., One American Square, Suite 2000, Box 82064', Indianapolis, Indiana 46282, (317) 633-4884. 6 EXHIBIT E t - .~ a . ~ 17.. L:=-'==- 1 t;.c. A(....oa.. fli.ot'(.(..{ I . '., .. , ,....... . " ". ~, . ~"?~~~ ~. ~-r~~'. WEIt~ ENGINEERS.. ~~..:.....~ ?!':\,"'" --- - - I,. _ =_= .-1----.....--. 'i I L . ..._ Jack Hi(l/':..._ ____. _~ _. --- ~._.::-:.:.,..._..._----~.. ,. . "f- (" , . , - d Case 1 :06~cv-00825~DFH~TAB t' _ f ' .... Document 128-6 Filed 04/12/2007 Page 1 Qf 15 e ~iLml/ ~'yy,..~ .... ~/~~ :'"1'1 ~ "~ RECEIVED - - I-" T 8fP 30.2002 t" DOCS THIS SETTLEMBNTAND RELEASE AGREEMEN::r' is entered in " oftbe 17th d, . of May, 2002 by and among Kingswood HomeoWTiers Association, Ino.t profit cprporatioD (''K.i71gswood'')j Mmtin Marietta Materials, Inc.~ a olina corporatioll,("MartinMarietta"); Hughey, Inc., an Indiana corporation (1iughey"); the City of Carmel, Indiana., an Indiana municipal corporation (the HCityU); and the City of Cannel and Clay Township Board of Zoning Appeals (the "BZA"). This Agreement is effective when executed by all partieS and is premised on, the following recitals which are incorporated into the Agreement. SETTLEMENT AND RELEASE AGREE RECITALS A. Martin Marietta and the Helen M. Mueller Conservatorship ("Mueller") are parties to a cert>>in lease dated 1anuaty I, 2000 with respect to certain real estate located. in Hamilton County, lndiana; comprising 237 acres, more or less, and more particularly described on Exh:ibti A attached hereto and made.a part hereof (tbe ''M:ueller Property"). B. Martin Marietta is the owner of certain real estate located in Hamilton County, Indiana,located north of 961h Street and south of fO~ Street, depicted on Exhibit B atlachedbereto and made a pari: hereof (the "Martin PiopertY't). C. Martin Mariettaahd Hughey are parties to a-certainagreement and lease dated August 8,,1998 with respect to .aportion of.tpe. Martin" Property9Qmjmsfug 8.18 acres, more or less, and more particularly descnbed o~ Exhibit C atiached hereto and made a part hereof (the "Hughey Premises"). Martin Marietta leased the :Hughey Premises to Hughey for the purpose of op(~:rating a ready mix concr~te plant and related activities (the "Hughey Operations"). D. In an agreement with American Aggregates Corporation, the predecessor in interest to Martin Mari~tta dined November 5, 1997 with respect to construction oniazel Dell Parkway (the "Hazel Dell Agreement"), the City agreed that the operations on the Martin Property (i) were outside.an "urban. area" as defined by I.C. 936-7-4-li03; and (Ii) constitute existing, iegal non-cOnforming uses pursuant to case law and as defined in Cannel's current zoning ordinance. E. On May 30,2g00, Kingswood brollght suit against (i) the City; (ii) Steven . Bngleking as Director of the Department of Community-Services of the City of Carmel; (ill). tl:ie BZA, consisting of members Charles Weinkauft Pat Rice, Leo Dierckman, Michael Mohr and &rlene Plavcbak ("B.oilrd Members"); (iv) Martin Marletta;and, (v) Hughey in the Hamilton Superior Court, docketed"as Cause No. 29D05-011(}"CP~2169 (the "Lawsuit"), The LaWSuit sought declaratory,ana mandatory relief. and aIleged.lo.ter !lli!, that the minin~ of the Mueller Property by Martin Ma.rietb!. and the Hughey Operations were Wld.ertak:en without obtaining appropriate land USe approval. from the City. F. The City, the BZA, Martin Marietta, and Hughey (together. the "Defendants'') denied and continue to deny the claims of Kings wood in the Lawsuit, and are entering into this Agreement to avoid the.expense ilDd uncertainty of fi!rther litigation. Neither J EXHIBIT 5 EXHIBIT C .~ 009830 Case 1 :06-cv-00825-DF H- T AS Document 128-6 e Filed 04/12/2007 Page 2 of 15 . r ~:. . this Agreement. nor the consideration for it, shaH be construed as an admission of fact or ofanyliabiIity by the Defendants. G. The DefendmJts and Kingswood'have participated in leogthy consultation and negotiations through their respective cOtUlse[ to ~es6Jve the issues in the Lawsuit, and have concluded it would be in their best interests to settle and compromise their disputes on ther terms and in the manl1erpiovide4 in this Agreement. Steven Engelking and the Board 'Members were joined in their 'official capacity, not individually, and are [Jot necessary to r~olution of the Lawsuit and the agreements contained herein. AGREEMENTS NOW, THEREFORE, Kingswood, the City, the BZA, Martin Marietta, and Hughey, in consideration of the mutulll covenants in this Agreement and the acts to bepcrfonned pW'suant to this Agreement, hereby agree as follows; A. Agreements of the City L Subject to Section A.3 below, the City sball nQt object to Martin Marietta,'s applicaticm to the BZA for speoialuse approval for'sand and gravel ekt:raCtion on the Mueller Property, including a variance of setback requirements to reduce the required buffer to 150 feet wqere abutting Kin.gswood subdivision and to 100 feet where abutting other property Dot owned by onubject to mining rights in favor of Martin Man6tta (the "Special Use and Variance"), subject to the,Commitments (as hereinafter defined). 2. Subject to Section A.3 below, the City shall not object to Martin Marietta's application to the BZA for a var.iaI1ce of use to permit the processing plant presently located west of Hazel Dell Parkway lmd north of 106111 Street to be relocated to the east side of Hazel DeH Parkway, at a location farther fro~ any home in IGngswood than at present (the "Use Variance"), . ' 3. The City has retained ::;pectra Environmental Group ("Spectra") to review Martin Marietta's Special Use and Varianoe mdUse Variance applioations (together"the "Applioations") and advise the City whether they m~t the Indiana Mineral Aggregates Association's guidelines for recl!Ullation and [he City's standards for buffer area landscaping. The City's Department of Community Services (the "Department") shall recommend that the applications be approved only if tbey meet those guidelines and standards and Martin Marietta makes the Commitments as 'part of its applicatloru;. The City shall also review and consider the Applicationsm accordance with itsordinancc;:s and procedures. ' 4. The City, with the assistance of Spectra, shall conduct a study. of the southeastern part ofeJa.y Township. jncludii1~ specifically the Mueller Property as well as all ~isting Martin Marietta parcels in Clay Township. The study shaH describe in detail all existing land uses and suggest appropriate development standards .for those uses and, if appropriate, new regUlations covering noise and blasting in the vicinity. The study, which should be considered for incorporation into the Carmel Cla.y Comprehensive Plan, shall include a policy, subject to Paragraph's A.S and C.3 below, on the suitability i> ..yj 2. ( ~ 009831 ( , ' Case 1 :06-cv-00825-DFH-TAB Document 128-6 .- Filed 04/12/2007 Page 3 of 15 e 'If of allowing mining uses on property in Cannel and C]ay Township. S. The City shall work with Martin Marietta to draft and submit to the Plan Commission for consideration and. recommendation to "the City Council .5 Mineral Resource Overlay Zone Ordinance (the "Overlay Ordinance') and a change in the offiGial zoning maps pursuant to which the Mueller Property would be rezoned to the MR Mine.ral Re.sourceOverlay Zone, with Martin Marietta making the Commitments. Tbt: Commitments shall be consistent :with,and no less restrictivetl1an, the conunitments that Martin Marietta bas made in connection with aoymining permit application iri any other jurisdiction in lndiana. The City shall be specifically authorized to enforce the Commitments. . 6. The City shall expedite the: Overlay Ordinance adoption process 80 that all required public hearings are held by the Plan Conunission and City Council within 4 months of the Effeenve.Date (as hereafter defined), With the intent that the Overlay Ordinance and the ordinance rezoning the Mueller Property tl} tbeMR. MineraI Resource Overlay Zone become effective withIn 6 months of the Effhctiye Date. However, failure to accomplish thesegc;mls by the specified dates shall not affect any other provision of this Settlement Agreement. 7. The City shall not prejUdge, dUring the ordinance-adoption process, the issue of whether mining uses, other than sand and gravel extraction by dredging if the Applications are approved. should be allowed on ail or any.part of the Mueller Property. 8. The City recognizes that the uses now established on the Martin Property, including but not limited to the Hughey Operations, constitute legal, nonconfotIning uses. However, the CityalsQ recogn(zes that existing non-conforming uses may npt be substantially modified, expanded, or added to without a change of zoning classification or BZA approval of aspecfuluse or variance. The City also rec:ognizes.that upon approval of the Applications. Martin Mlirietta shaH have a vested right to commence and complete. sand and gravel eJ{tractionon the Mueller Property as requ~sted in such Applications. 9. The City shall pay reasonable attorney's fees that have been incurred. by Kingswood in connccQo.n With tbe Lawsuil in the amount of$7.500.00. . B. Agreements of Martin Mari.etta .. 1. Martin Marieittashall not assert that the Mueller .propertY is ~ut8ide an urba~ area. 2. Martin Manetta shall seek approval of the Applications to conduct sand and gravel extraction,. subject to the Conuninnents, on the Mueller Property; and shall not conduct iPlY mining or. related operation on the Mueller Property, other than sandi and. gravel extraction by means of a .dredge" if the Applications are approved, without obtail).ing a change in.~ning classification or other zoning approval. 3. Martin Marietta shall not permit Hughey or any other related industry to expand its operations beyond the Hughey.Premises or add use.s not existing on the Martin Property as of the Effective Date without appropriate governmental approvals, except Hughey may, pt'I?videdit has entered into valid lease or other agreements with Martin > 009832 Case 1 :06-cv-00825-DFH-TAB Document 128-6 -- Filed 04/12/2007 Page 4 of 15 e ( Marietta, (I) continue to utilize the a.reabctween the Hughey Premises.and the existing berm along the south right..of~way lin.eo006!~ Street, as depicted on Exhibit C attached hereto and made a part hereof for outside producuitorage and (ii)expand the ground floor square footage of the existing structure on the Hughey Premises by up to twenty percen~ (20%). 4. Upon approval of the Applications, Martin Marietta shall execute written commitments providfug that its sand and gravel extraction _on the Mueller Property north of 106lh Street shall be subject to the following conditions and restrictions (the "Commitments"): (a) If Martin Marietta is permitted to. commence sand and grave! extraction on the Mueller Property by JWle 1, 2002 and is not precluded from continuing such extraction, Martin Marietta shall, subject to. approval bytheBZA and the-Indiana Department of NaturaIResol,lI'ces, mo.v~ the processing plant located north of 1061h Street west of HazelDeU Parkway and adjacent to the Kingswood Subdivision to a new location just east of Hazel PeH Parkway and no.rth of 106111 Street. Such new location shall be farther from any home in the Kingswood Subdivision than at presenlSubjeet to obtaining the required governmental approvals, lyIartin Marietta shall start the plant relocation no. later than January 3.1; 2004 with completion of such move to occur no later than March 31, 2004. Martin Manetta shall tenninateall processing operations at the current site of the processing plantas soon as the relocation of the plant is completed. Martin Marietta shall instaH and maintain noise abatement features at the 'r~Iocated plant which are no .less effective than those now utilized, including the use of 00- site berms and aggregate piles as bUffers; - and the use of strobe light signals at night instead of audible signals. for all equipm~nt as permitted by applicable legal requirements. The existing tree buffer on l!azel DelI Parkway shaJI be maintained and shall not ~ disturbed.- Subject to obtaining any required permits and approvals from applicable governmental authorities, .Martin Marietta shaU recycle waste water from the relocated processing plant from the east side of Hazel DeJl Parkway _ to the lake(s} on tJ1e .Mueller Property and Martin Property west of Hazel Den Parkway and no.rth of l06th Street. _ (b) All overburden removal 011 the Mueller Property north fJf 106lh Street shall be colnpleted during daylight hours (between one half hour after sunrise and one half bour befoq: sunset). durfng the months of NO'lemher thrOUgh MarCh, and fJnlyon days other than Sattll"day or Sunday. Martin Marietta shall also cause any operations under its controi to be 4 '.. 009833 ( " Case t:06-cv.Q0825-DFH-T AS ,Document 128-6 It Filed 04/12/2007 Page 5 of 15 , ; ~ undertaken Bnd conducted in a manner so as to mJnimize noise, dust.ligbt or smoke impact on sWTouodirtg properties; . (c) No surface operations shall be undertaken on the wooded portion of tbe Mueller Property north of 106dl Street located directly south of the existing park attbe northeast comer of Gray RO!ld and l06th Street. (d) AlltrQcks entering public streets from operations conducted by Martin Marietta in Clay Township north of 961b Street shaJl have covered beds. (e) Martin Marietta .shall reclaim the Mue!1er Property north of 1 061hStreet (except the wooded portion of the .M~eHer Property north of] 0611'0 Street . located directly south cif the existing park at the northwest comer of Gray Road and ] 06.t11 Street) and the Martin Marietta property between 1061h and 1161h Streets abuttinB the Kin~wood Subdivision B:rtd west of Hazel Dell Parkway a~a-lake with (i) slopes no steeper than 3 to I, (ii) a waterline not less than 150 feet from the nearest property line in .the Kingswood Subdivision, assuming that the nomal pooL elevation, subject to seaSonaL variatioilll, is 122 above mean sea level, and (ifi) domestic grass coverage of not less than eighty peroentper square yard. Martin Marietta shall submit a rec.lamation plan to' the City's consultant before tqe City makes any recommendation. for approval (lfthe Applications. Reclamation'sbalL begin on the northern portion ofllie Mueller Property and move in a soulMrlydirection. (f) Subject to approval of the co-conservators of Mueller and the court ov~rseeing it, Martin Marietta shall cause to be cooveyed to Hamilton County or the City, as the caSe maY be,a forty-five foot half right of way along the northern. edge of I06lh Street- measured from the existing center line of l061h Street' . (g) All reclamation shall comply generally with the reclamation guidelines adopted by the Indiana Mineral Aggregates Association, a QUrrent copy of which shall be provided to . the Director annually, andsha11. be done in accordance with the Mining and Reclamation ,Plan submitted by Martin Marietta in ~nnection with the Applications, as last revised and approved in connection with the Applicatons (the "Plan"). (h) Martin Marielta agrees that it as part of sand and gravel. extraction it sl1al1 not pump water from the Mueller Property, except as necessary. to convey sand and gravel through a pipe 5. 009834 Ca'se 1 :06-cv-00825-0FH-TAB Document 128-6 e Filed 04/12/2007 Page 6 of 15 .' to tae processing plant,and will utilize a closed loop system pursuant to which water pumped from the Mueller Property to the processing plantis returned to the Mueller Property (except as may be lost naturally through evaporation or in .the processing ac;tivity. Upon completion of the sand and gravel extraction, Martin Marietta shall take no actions to drain t:he lake created, or to reduce: the water level below 722',above mean sea level, subject to seasonal variations, and natural fluctuations. (i) From the overburden removed during sand and gravel, extraction, Martin Marie~a_shaU construpt an earthen landscape benn six (6) feet in heig~t on' the n.orth side of 1061h Street on the Mueller Property (except the woo.ded portion of the Mueller Property located directly souib of the existing park at the northwest: comer of Gray Road and l06111 Street). CD Martin Marietta. shaJlberesponsible for all envircmmel1tal matters arising .from its operations and shall indemnify andboldharml~s the adjacent landowners in the Kingswood Subdivision With respect to any losses, claims or costs arising. therefrom. (k) Sand and gravel shall be extraoted only through the use of a floating dredge. Such extIaction will be done in the sequence depicted ih the Plan stibmittedby Martin Marietta ill connection with the Applications. Martin'Marietta agrees that once it has commenced sand and gravel. extraction on the Mllell~r Property, no sand and gravel from any source other than Mueller prGperty north of l06th Street will be processed through the Processing Plant until extraction on the Mueller properiy~ nortP of l06th Street is complete. (1) Any other commitments required by" the BZA in its approval of the Applications including, but not limited to. a perimeter buffering landscape. plan approved by the Department S. Martin Marietta shaH pay tbe'City's reasonaole attorney's fees incurred in connection with the Lawsuit, and the fees fodts qualified mining engineer, geologist or consultant, to an aggregate maxitnumof$25,OOO.OO. 6. Martin Marietta shall pay Kingswood's q:asonable attorney's and experts' fees incurred in conneCtion with the Lawsuit;\IPon .receipt of documentary evidence of the work perfonned and tilpe expended, to a: maximum of $2 l,'50.00. Such amount will be due thirty (30) days after the Effective Date. 7. For each calendar year or part thereof that Martin Marietta is extracting sand 6- " 009835 Case 1 :06-cv-00825.,DFH-TAB Document 128-6 e Filed 04/12/2007 Page 7 of 15 - (. . \ and gravel.from the Mueller Property north of 106111 Street, it shall pay the City $5,000.00 to monitor Martin Marietta's compliance with the Commitments. Such payment shall be due on.thefrrst day onhe second month foHowing approval of the ApplicatioIlS and on each. anniversary thereof. 8. For each calendar year or part thereof that Martin Marietta is extracting sand and gravel from the Mueller Property north of 106lh Street. it:shaU pay the Kingswood an amount to be used for publication of a Kingswood !1irectory, maintenance of conunon areas in Kingswood or social events for the entire Kingswoodl1eighborhood. The first such paymen~ shaIl in the amount of $26,750.00 and ~hallbe due on the rrrst day of the second month following approval of the Applications. Each. subsequent.paymentshaJl be in the amount of $5,000 and shall be due on each anniversary of the .first day of the ~econd month following approval of the Applications. 9. Once a year, al the invitation of Kingswood, and for .50 long as M~in Marietta is conducting sand and gmvel extraction orperform.ing reclamation .on the Mueller Property, Martin Mariena will send arepreseutativeto a meeting of Kingswood to report onMartin Marietta's,actiVities on the Mueller Property. C. Agreements of Kings wood 1. Klngswood shall cause the Lawsuit to be dismissed with prejudice. Kingswood shall and does hereby RELEASE AN!> FOREVER nISCllARGEthe Defendants and their respective corporate parents and affiliates, all of their present or fonner officers or elected officials, 'employees, representativ.es, l;lgents ~nd directors, from any and all claims, demands, losses. damages, injuries, actions or causes of action with respect to. on account of, arising out of orin .any way connected with the allegations of Kingswoodin the Lawsuit. 2. Kingswood recognizes that the uses now established On .the Martin Marietta parcels property, including but bot limited to the Hughey Operations. constitute legal, nonconforming uses. However, Kingswoorl also recognizes that; except as provided in Section 1) below. existing non-corifopning uses may not be sllbstantially moQitied, expanded, or added tq without:a change of zoning classffic*ionor BZA approvw of a special use or var!anc~. Kingswood also' recognizes that upon approval of the AppliClltions, Martm.Matietta shallhave a vested right to .coirimenceand complete sand and gravel extraction on l:heMueller Property as requested in s\.IchAppIications. 3. Kingswood shall not oppose the eoactmentof an Overlay Ordinance permitting sand and gravel extraction on the Mueller Property. D. Agreements of Hughey 1. Hughey stiRllnot expand its operations a.t or beyond the Hughey Premises without appropria~ governmental approvaI~, except the parties agree that Hughey may, provided jt has entered into valid lease or other agreements willi Martin Marietta, (i) continue to utilize t~e areabetwewi the Hughey Premises and lbe existing benn alongthe south right-of-way line of l06lhStreet, as depicted on Exhibit C attached hereto and made a part hereof for outside product storage and (ii) expand the ground floor square footage 7- (..' "'f 009836 Case 1 :06-cv-00825-DFH-TA8 Document 128-6 (It Filed 04112/2007 Page 8 of 15 . ( Oftbe existiog structure on the Hughey Premises by up to twenty percent (20%). 2, Hughey shall pay reasooable attOIlleoy"s fees that have been incurred by Kingswood in connection with the Lawsuirin the amount of$7,500.00. E. Gener~l Agreements of the Parties l. Neither the Lawsuit nor anything contained in this Agreement shall be deemed to have getennii1ed that the Mueller Property is in j.U1 "urban area" as that term is defined:by Lc. ~ 36':'7-4..1103. 2. In making this Agreement, each party hereto has relied solely on its own judgment, belief and knowledge of the Dature of the matters described herein. 3. This Agreement constitutes the parties' entire agreement WIth respect to this matter, and it supersedes all prior negotiations, representations or agreements, either written or oral between: the parties: 4. This Agreement shall become effective and binding upon the parties upon the date (the "Effective Date") upon which. the last party hereto exe,cutes tbis Agreement, provided that if this Agreement is not fully executed by all the parties on DT before May 17. 2002, it shal1 termInate and shall not bind any parties that have executed this Agreement prior to such date. S. Notwithstanding.anythinahereiIl to the Gontrary,. the provisl<lns of paragraphs B. 7 and B. 8 of this Agreement'shall beqofue effective and binding upon the parties onLy upon approval by the BZA of the Applications provided, however, that such, approvals are granted notJater than June I, 2002. 6. Each of Kingswood, Martin Marietta and Hu~ey represents that it has taken all necessary and appropriate corporate action to make .this A.greement its legal. valid and binding obligation. The City represents that it has taken all necessary and -appropriate municipal action to make this Agreement the legal, valid and bindillg obligation of the City. Kingswood, Martin Marietta, Hughey and th~ City recognize that this agreement is for the purpose of settlement of the Lawsuitand is not binding on the BZA. the Cannel Clay Plan Commission or the. Common Council of the City in the exercise of [heir responsibiiities for land use and zoning ofelay Township and the City of Carmel. 7. This Agreement shall begovetned by the laws ofthe State of Indiana. 8. This Ag.:eement may be!llodified 'only by a written agreement executed by Kingswooa and Defendants. provided that. nothing herein shall be deemed a restraiht upon the police power of the City. 9. Each of the COVenants contained in this Agreement shall inure to t4e benefit of and be binding upon the Parties hereto and their respective sUccessor,). and assigns. 10. This Agreement may be executed in. any number of counterparts.' each of which. shall be an origrnal but aU of which together shall oonstitute one and the same instrument 8, ~~ 009837 . . Case 1:06-cv-00825-DFH-TAB . Documenl128~6 8 Filed 041l2/2007 Page 9 of 15 tit "~ IN WITNESS WHEREOF, this Agreement has been executed as of the date first set forth aba By; ~jgnature) .b~~ M, -hJf2ld lQ, (printed namJ{ I Its V {..-J ~ VY\ KINGS WOOD HOMEOWNERS ASSOCIATION, me BlO ~c.~ (signature) 7fIO~A-S' C Y.60Llc'lr (printed name) Its: P/PlFSt' ~r :GHE:g:"h7y (signature) . ' .k..7f IJ. )Ju.t:.,~'e (printed name) U lts 'I' C j ~4t.':;::r; , . (printed name) . Its; M...~J.( ~14.oAL '" (title) -- INPS01 DRW 4llOS41vl0 . 9 009838 Case 1 :06-cv-00825-DFH- T AS Document 128-6 . Filed 04/12/2007 Page 1 Oof 15 e " ( EXHIBIT A Legal Description of Mueller Property PARCEL A: Part of the North HalfofSection 9, and part of the South Half of Section 4, all in Township 17 North, Range 4 East, ofthe Second,Principal Meridian in Clay Township, Hamilton County, Indiana, described as follows: Beginning at the Northwest comer of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence South 89 degrees 55 minutes S6 seconds East (assumed bearing) on the North line of said Section 9, a distance of] 336.18 feet to the Nortbwest comer of the Bast half of the Northwest quarter of said Section9j thenoe South (JO degrees 11 minutes 12 seconds Weston the West line of said Eas~half 1716.00 feet; thence South 89 degreeS 55 minutes 56 seconds 'East parallel with the North line, of said Section 9, a distance of 1336.01 feet to the West line of the East halfaf said Section 9; thence South 00 degrees 11 minutes 33 seconds West on the West line of said East h.a1f 156.75 feet; thence South 89 degrees 55 minutes 56 secollds East parallel with the Nortbline of said Section 9, a distance 0:(919.68 feet to the Westerly Jine ofreal.estate con.veyed to the City of Carmel, Indiana, by a documeftt titled "Certifica.te of Clerk"recorded in the Office of the Recorder of Hamilton County, Indiana, as InStrument Number 9709754848; (the follOWIng .fifteen courses being on the Westerly line of said real estate) 1.) thence North 08 degrees 36 minutes 31 seconds Bast 885,22 feet; 2.) thence North 02 degrees 53Illinutes 53 seconds East 201.00 feet; 3.) thence North 08 degrees 36 minutes 31 seconds EaSt 660.61 feet; 4.) thence North 29 degrees 48minutcs 29 seconds West 55.59 feet; 5,) thence North 80 degrees 51 minutes 37 secondS West 303.34 feet; 6.) thence Nortll 89 , degrees 51 minutes 37 seconds West 148.00 feet; 7.) thence North 60 degrees 14 minutes 56 seconds West 57.55 feet; 8.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet to the North line of said Section 9, being also the South line of Section 4, Township 17 North, Range 4 Bast, said point being 3302.24 feet South 89 degrees 55 minutes 56 seconds East of the Southwest comer of said Section 4; 9.) thenGe continuing North 00 degrees 04 minutes 04 seconds East 16.50 feeti 10.) thence North 60 degrees 23 minutes 05 seconds East 57.55 feet; 11.) thence North 89 degrees 50 minutes 43 seconds East 254047 feet; 12.) thence South 81 degrees 22 minut~ 39 secDnds East 198.24 feet; 13.) thence North 25 degrees 45 minutes 13 seconds East 826.18 feet; 14.) thence North 21 degrees 15 minutes 23 seconds East 576.29 feet; 15.) thence North 01 degrees 37 minutes 09 seconds East 180.00 feet to a point on a line that is parallel with. the South line of said Section 4, and extends Easterly from a point on the East line of the Southwest Quarter of said Section 4 that is 154.10 feet North of the Soutbeast comer of the North Half of said Southwest Quarter; thence North 89 degrees 55 minutes S6 seconds West on said line 1718.86 feet to the aforesaid point on the East line of said Southwest Quarter, being aJ~o the EasUine ofKThIGSWOQD SUBDIVISION, SECTION THREE. B subdivisioI)inH!LIni1ton County, Indiana the Secondary Plat of which, as amended December 22, 1988, is recorded illsaid Reoorder's Office as.Instrument Number 8900204 on pages 111 and 112 of Plat Book 15; thence South 00 degrees 07 minutes 43 seconds West on the East line of said Southwest Quarter l54.10 feet to the Southeast comer of the North Half of said Southwest Quarter; thence North 89 degrees 51 minutes 18 seconds West on the South line ofllie North Half of said Southwest Quarter 1521.03 feet to the . Northeast carner of real estate conveyed to the City of Carmel, IndiaD8, per a Deed recorded in the Offi.ce of the Recorder of Hamilton Co~ty, Indiana on page 86.5 of-Deed Record 329, 009839 Case 1 :06-cv"00825-DFH- TAB " Documenl128-6 Filed 04/12/2007 Page 11 of 1.5 - " said comer. being 1146.65 feet East of the Northwest corner of the SQuthHalf of said Sou.thwesl Quarter; thence South 00 degrees 27 minutes 42 seconds West on the East line of saiq real estate 918.75 feet, per the aforesaid deed, {919.89 feet by rneasmement).to the Southeast corner of said real estate, said comer lying qo a line th~t extends South 39 degrees 51 minutes 29 seconds East, measured paralleJ with the North line of South Half of said Southwest Quarter from a POintOD the West line of said Southwest Quarter that is 406.45 feet North of the Southwest comer of said Section 9; thence North 89 degrees 5J minutes 29 seconds West on said line and the. Westerly prolongation thereof>.a total distance of 1145.58 feet, per the aforesaid deed, (U44.55 feet, by measurement) tethe aforesaid pointon the West line of said Soutbwest Quarter, saiq point being also the Southwesterly corner of real estate conveyed to the City ofCarrneJ, Indiana. by a Warranty DeedrecoI:ded in said Recorder's Office as Instrument Number 8726638;.tbence South 00 degrees 19 minutes 51 seconds West on the WesUine of che Southwest Quarter of said Section 9, a distance of 406.45 feet to the place ofbegirming, containing 202.902 acres, more or less. (I05.981 in Section 9, and 96.921 in Section 4). Subject to all legal easements and rights-of-way. PARCEL B: Part of the Northeast Quarter of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana, described as follows: Beginning at the Northeast corner of the Northeast Quarter of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence North 89 degrees 55 minutes 56 seconds West (assumed bearing) on the North line of said Seciion 9, a distance of 1189.27 feet to the Easterly line ofreal estate,conveyed to the City of Carmel , Indiana, by a document titled "Certification of Clerk" recorded in the Office of the Recorder of Hamil ton County, Indiana. as Instrument Number 9709754848; (the foHoWing five courses being on tbeEasrerly line of said teat estate) 1.) thence South 11 degrees 50 minutes 5~ seconds West 131,07 feet; 2.} thence South 86 degrees 32 minutes 20 seconds West L02.n feet; 3;) th~nce South 0] degrees 00 minutes 13 seconds West 348.84 feet; 4.) thence So.uth 12 degrees 02.minutes 32 seconds West 250.45 feet; 5.) thence South 08 degrees 36 minutes ]I~econds West 1159.69 feet to a pointoD a line that.is parallel with the North line of said Section 9, at a point that is 1872.75 feet South 00 degrees 11 minutes 33 secoilds. West measured parallel with the West line of said Northeast Quarter; thence South 89 degrees 55niinutes 56 seconds Eastpatallel with the North lineofSaid Section 9, a distance of 284 feet. more or less to the Westerly edge of water of White :River; thence Northeasierly with the meandering of said edge of water to the East line of said Section 9; thence Northerly on said East Hne 107 feet, more or le.ss, to the place ofbeginning, containing 29.62& acres, more or less. Subjectto all legal easements and rights-oi-way ." 009840 Case 1:06-cv-00825-DFH- T AS Document 128-6 - ( . EXHIBIT B Depiction of Martin Property ( . Filed 04/12/2007 Page 12 of 15 - "" 009841 Case 1:06-cv-00825-DFH-T AS - Document 1.28-6 Filed 04/12/2007 e ( EXHIBiT C Description and Depiction of Hughey Premises .!..tr...u. ~.lv.t.am~! P'IU'~ or Ul..o Vuot ~~.t.td ~ KoI'Un8'il QJ:!&,,""ltt' 9r ~u"u II. ~!p U 'Ifmt'tQ, IIs:IzaIor. 4 Dn fA 1:1",1" ~D11" :haiu= ~t.3". lDds.&::a. I!.~~rt~..:d. &.It fa{t~-; ~i~~Ettf..~ a pofAtn 'WI' ~ 11Jae <)'/ ~ '/~.t au clt QoIl lIlD1"~!l; ,4\Ia.;ota~ 6': SclGe~OZl. 8. 1tMli1jdg !7 ~.c:.. !Il\Af1ll "' ~il UH toO." Ji;orc faI"' JIIloU. S~ or &b,jj,Jbl'i_d ~ At' _1<1. "'IUI~ .ltatrl ~ ~~bl:'.t;r _ t~ &.181:. dme 0I,.4&J4 'ton 2111.1 t SCQ fssa:. .eMO or JQ.lI: ,thaU:H JHl4t'17 Slot' ~_. lII::Ir. af''''Il'Jt~ ~C! llo..t:l.orrl;r: ""PlII.Ultl, 'Il'lUl4liilNlA.8C U" (Il;I1J ,to<rl;i ,!!lIlPn: 01' ~lH.. ~ ~t.ef'1,. f,a.(ttJll't. lIOn ar h,u. t.;, Ui", 1rla.c:1I at kg'.11IItfIl:t.. t:CBLi.fl/f1l';l 1-.1. &ft1:I8, ."a 0(' JtloU1Il. '__' T=C1t1'~r IIU~ ~1I2L*=e::Ji. ~~ ~1\lOl"Il &::If"~ a:cad DUUU.... ~ ad _ t.I&e' .tGlt_iU ~lNd r"8&11fri.tt.1II Ii)Ost,e.;f: ~:; '~lt ll'orlEll'1" 0: ~~ lfototllw1l""~t'lll .r SdGUOIJ 9. ~htll 17 BoM-b, ~. .. taA: Bos1=.bl! a.t ~'Jlttr=:Sltadll I:D't'::Ilrvt' ~ 'gut 1r&J~ r)f" ~a :far~~n' ~l"h,,, at a:e.,t1a4~. 1:D1l'JIs.lsl~ .17 ~a:, RluItir t ..ta.IIt.. ~ ~. .e.Scnl~r.1.'T, tlizU'IIIrA"t .l.lA.t' rI~ -[4 '. .j,ol't, L1t IllH f~._" rn le,&.If. t.o ~~wl~'aa~ ~ tae. ~..,; clill~l'i~ nHIo~...en&'UI)ek:lCtt V..tttl'l, .~~; 1Icl1'Ul. U.a.. ,U _:d ~r u'f.t.iIl IJ"1 fintr ~JIG<r Scl:O~(Y' 1\Alib.U..J ' V1th tbe ~" I ~~ 0:('.. Rid. ll!folat Iklr W" rest. littz'IiI' (it" In.. tQ cap lfar'tlll!)ieo or SIl1~Jto"~~irt~ItrJ ~ h~;DPh. ~:b a.J.d. o'iO.r~ 1 u,,' so .ted~ to t!u> plaCe Q.t 1lcrthll:llnt. :11i1~.J.....t t.~ :tIJ 1 h.gll.l III'J.lioWU a:lr;j :-1~:';I~o'-:'~. ,I -......,..." . '.' '"T~' ..~... ':-'."ol.~'., .-, .~-~. .:..:;,....;",."'f.~..-;_-.:.. ;, . ~. ,-~;,' ~. .." ~ ,": ,..,' ~_ iJ, -I..:.:":. ..:. ~ ".~ ~ "'_. '. "p'. _":.-~' ".. . ~. :",.. '. .:: (, Page 13 of 15 ~.f) 'I , ., ,........' ~..; "~. : -....;. 009842 Case 1:06-cv-00825"DFH.TAB Document 128-6 - Fiied 04/12/2007 Page 14 of 15 6) ( , .; EXHIBIT 8 Depiction .of Martin Property :/i J.. rl~ ,.-,. T i -,' _1i'...~~,,:.:.....,:?rrr~_ J .... IIlAAIC>I ..~ . . .. I ", :-','.. . . , ,~'{f. .... ::,{l, """",9 ! j , I ,j I l N {) a ~.~.~J' . IVII.I.,., Jt\, -\ I I . , .. ". .~ v. lit.... J. ( .! 009843 (-. - -00825-DFH~-r, Document 128-6 FiJ.i.d 04/12/200 . 'd ~.J 742.9 ,74-5.0 . ..H5. ~: .' "7~' 7" 7 ,142.5 r Tl. .. 7#.1 PaQe 15 of 15 .1-4-5.4 14 ,W..7 .74-'1.7 E:x1lrifIT ~ .7419. ~ ~. ~ } ~ i ~ J. I ~ 'a ~ I 009844 '- EXHIBIT D-l Legal De'scription for MueUer North leaallDescrlctlon Part of the South Half of Section 4. Township 17 North. Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indrana, described as foRows: . 8eglnnlng>6.1 the Southwest corner of Section4, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Harniltc;'In C.ounty, Indiana; thence South 89 degrees 55 minutes 56 seconds East (assumed bearing) on the South line of said Section 4, a diStance of 3,302.24 feet to the Westerly line of real estale'conveyedto the City of Carmel, Indiana, by a do:cument'titled "Certification of Clerk" reporded In the Office of ' the Recorder of Hamilton County, Indiana, aslnstrlJment Number 9709754848;. (the following ~even courses being on the WesterlY line 01 said reat estate) 1.) thence North 00 degrees 04 minutes 04 seconds Eal;lt 16.50 feet; 2.) the'nee North 60 degrees 23 minutes 05 seconds East 57.55 feet; 3.) thence North ae degrees,So mJilutesA3seconds East 254.47 feeti 4.)thenceSouth 81 degrees 22 minutes 39 seconds E8$t 198.24 feet; 5.) thence North 25 degrees45rriinutes 13s$conds Ea.st826.18 feet; 6.) thence North 21 degrees 15 minutes 2$ seconds East 576.29 feet; 7.) thence North 07 degrees 37 minutes 09 seconds East 180.00 feet 10 a point ona line that is parallel with Ihe'South line of said Section 4, and extends Easterly from a point on the East line of the Southwest Quarter of said Section 4 that is 154.10 feet North of the SOtJtheast corner ot. the North Half of said Southw~s:t Ql.!arterj thence North B9 degrees.55 mInutes 56 seconds West on said line 1.718.86 feetto the aforesaid pOInt on the Eas1 line of said Southwest Quarter, Qeing.also the East Jine of KINGSWOOQ SUBOIVISION, SECTION THREE, a subdivision In Hamilton Cou hty , 'n.;llana, the Secondary f'lat of which, as amended December 22, 1988, Is recorded in said Recorder's Office as Instrurne.nt Nurpber 8900204 on pages 111 and 11201 Plat Book 16; thence'South 00 degrees 07 minutes 43 seconds West on the East line of said Southwest Quarter 154:tO feet to the Southeast corner ofthe North Halt' of said SouthwestOuarter; thence North 89 degrees 51 minu1es 1 B seconds West on tl:le South line of the Nor1h Half of said Southwest Quarter 1,521.03 feet to the Northeast COrnet of real estate conveyed totha'Clty of Carmel, Indiana, per a Deed reoorded in 1he Office of the Recorder of Hamilton County, Indiana, on page 865 of DeedR~ord 329, said corner being 1,146.65 feet East of the NorthWest corner of the SOU1hHa~of said Southwest Quarter; thence'South 00 degrees 27 minules 42 seCdnds West on the East line ofsaJd real estate 918.75 feet, per the aforesa.id deed, (919.B9 feet by measurement) to the SOutheast corner of said real estate, said comer lying on a line that extends South 89 degrees 51 rilimites29 seconds East, measured parall~1 wltlj th9 North Hne of South Hall Of said SoUthwest Quarter from a point on the West line of said Southwest Quarter that is 406.45 feet North of the Southwest corner of said Section Q; thence North 89 degrees 51 minutes 29 seconds West On said 1ineandthe Westerly prolongation the reo," a total dJstance of ',145.58 feat. perthe aforesaid deed, (1,144.55 feet, by measurement) to.the aforesaid point on theWest line of 'saId SouthwestQuarter,safd point being also the Southwesterly corner of real estate conveyed to the City of Carmel, Il1dlana, by a Warranty Deed recorded In sald Recorder's Office as Il1strumentNumber 8726~38: thence ,South 00 degrees 19 minutes 51 seconds West on the West line of t~~l Southwest Quarter of said Section 9, a distance of 406.45 feet to the, place of begInning, containing 1 0~.981 acres, more or less. JnI78447.1 EXHIBIT~ EXHIBIT D-2 Legal Description for Mueller South Property Part of the North Half of Section 9. Township 17 North, Range 41;:a5t of the $e(:;ond Principal Meridian in Clay Township, Hamilton County, Indiana, described as follows: Commencing at t~e' Northwest corner of Section 9, Township 17 North. Range 4 East of the SeCond Principal Meridian in Clay Township, Hamilton CounW. Indiana; thence South 89 (jegrees 55 minutes 56 seconds East(assumed bearing) on the North line of said SectlQn 9, a distance of 1,336.18 feet to the Northwest comer of the East Half of. the Northwest Quarter of said Section 9, said comer being the PLACE OF BEGINNING ofthe within described real estate; thence Sooth 00 degrees 11 minut~ 12 seconds West on the West line of said East Half 1 ;716.00 teet; thence South 89 degrees 5~ minutes 51) seconds East parallei with the North line of said Section 9, a distance of 1,336.01 feeno the West line of the East HaJf ot sald SectlQn 9; thence South bo degrees 11 minutes 33 seconds West on the West line. of said East Hai1156. 75 feet; thence South 89 degrees 55 minutes 56',seconds East parallel with the North line of saId Section 9; a distance of 919.68 feet to the Westerly line of real estate conveyed to the City of Carmel, Indiana, by a documented titled .CertiflCation of Clerk" recorded in the Office of the Recorder of Hamilton County, Indiana, as Instrument Number 9709754848 (the following eight courses being ontheWestarly line of said teal estate): 1.) thence NQrth08 degrees 36 minutes 31 seconds East 885.22 feet; 2.) thence North 02 degrees 53 minutes 53 seconds East 201'.00 feet; 3.} thence North 08 degrees 36 minutas 3f seconds East 660.61 feet; 4.) thence North 29 degroos 48 minutes 29 seconds West 55.59 feet; 5.) thenceNor1h80 degrees 51 minutes 37 seconds West 303.34 199t;6.) thence North 89 degr~es 03 minutes roseeonds West 148.00 feel; 7.) thenceNor1h60 degrees 14 minutes 56 seconds Wes157.55 'eet; 8.) thence North 00 degrees 04 mjm.it~s 04 seconds East 16.50 feet to the North Iina of said Section 9,said point being 3,302.24 feet South 89 degrees 55 minutes 56 secQnds, East of the Southwest comer of said Section 9;"thence North 89 degrees 55 minutes 56 seconds W~5t on said North line 1,966.06 feet to the place of beginning, containing 96,921 acres, more or less.. " . ]12]78445.] EXHIBIT b-Z EXHIBIT "E" 1M Draft -July 10, 2008 MARTIN MARIETTA MATERIALS. INC. MUELLER PROP.ERTY SOUTH SURFACE LIMESTONE MINING SPECIAL USE APPLICATION Docket No. 05090003SU ST A TEMENT OF COMMITMENTS COMMITMENTS CONCERNING THE USE OR DEVELOPMENT OF REAL EST A TE MADE IN CONNECTION WITH PETI1JON FOR SPECIAL USE PERMIT Martin Marietta Materials, Inc. ("Martin Marietta") makes the following COMMITMENTS concerning the use and development of thestirface of that porti9n of the following described parcel of real estate situated approximately four. hundred ninety (490') feet above mean sea level, located near the southwest comer of the intersectIon ofl06th Street and Hazel Dell Parkway, in the City of Carme~ Hamilton County, Indiana, which is more particularly described on Exhibit A attached hereto and incorporated herein. by this reference (the "Real Estate"). These commitments apply only to the described Real Estate and to no other property owned or controlled by Martin Marietta. Statement ofcoMrvnTMENTS: I. General Operational Commitments. A. Martin Marietta will develop an open pit, surface mining operation on the Real Estate in accordance with the plans and submittaLs identified herein and the commitments made herein. B. The maps, submittals, and uudertakings' in the T AC responses shall. be deemc'd the application documents and shall bind Martin Marietta. Attached hereto as Exhibit B is a master list of the maps and submittals governing the application and this approval. In the event of a conflict bctwecn maps or submittals, the most recent submittal shall be deemed to supersede all prior maps or submittals and to be binding on Martin Marietta. C. Prior to commencement of any work on the Real Estate, Martin Marietta shall provide copies of approvals and permits from every governmental agency having jurisdiction over the Real Estate and/or activities of Martin Marietta on the Real Estate, including all submittals to such governmental agencies, and Shall include all specifications and restrictions contained in such submittals and approvals. D. Overburden removal shall be completed during the hours of 7:00a.m. to 8:00 p.m. between the months of November through March (except as necessary to construct visual and noise barriers) and only on days other than Saturday, Sunday, or State of Indiana holidays. Martin Marietta shall conduct all operations, includtng overburden removal, ina manner so as to reasonably minimize noise, dust, and light impact on surrounding properties. EXHIBIT E E Martin Marietta's acceptance of the hours of operation shall include that all mining, p~ocessing, and hauling shall be conducted between the hours of6 a.ill. and 8 p.m., Monday through Friday, and 8:00 a.m. to 2:00 p.m. on Saturdays, and no mining, processing, or hauling shall occur on Sundays and ho Iidays recognized by the State of Indiana. F. Extraction opt:1rations may be conducted outside these hours only (i) to supply materials for inclusion ina public (state, federal or municipally directlY funded) project; (ii) to respond to an emergency; or (iii) to meet exceptional demands caused by special projects requiring work outside nonnal hours. Operations outside the above stated hours to meet the demands of a special project shall not exceed fifteen (15) days in any calendar year. Except in the case of emergencies, DOCS shall be advised of all operations outside of the stated hours at least 48 hours in advance ofthe work. G. Martin Marietta. shall use the existing entrance on 96th Street for haul trucks and other heavy equipment accessing the Real Estate (except as it may be necessary to access the Real Estate from 106th Street and Hazel Dell Parkway for berm construction). H. The beITI). specified along the perimeter of the property as identified on the Mine Plan map shall be substantially complete within one hundred eighty (180) days of the commencement of the removal of overburden from the Real Estate. Completion shall include, but not be limited to, landscaping installation and seeding. The Director is authorized to allow landscaping and seeding to be deferred up to six (6) months to allow planting to be done at an appropriate time seasonally. 1. Chain link type fences at least six (6) feet in height shall be required on the perimeter of the Real Estate at a point not closer than the right-of-way line of any street bordering the Real Estate when: it is not contiguous to existing mine property. Martin Marietta shall submit the proposed location and type of fence to the Director for approval. The fence shall be mamtained in a constant state of good repair. . 1. Any lights used for exterior illumination shall be directed away from adjoining public and private property. n. Blasting Practices. A. General Requirements. 1. Martin Marietta shall comply with all applicable state and federal regulations as they relate to blasting on the Real Estate. 2 2. All surface blasting on the Real Estate shall be .limited to the period from 11 :00 a.m. to 2:00 p.m. on weekdays (except on holidays recognized by the State of Indiana when no surface blasting shall be allowed). 3. Martin Marietta shall endeavor in good faith to schedule.sutface blasts on the Real Estate at the same approximate time of day. 4. Explosives used in a surface blast on the Real Estate shall not be detonated at other times, except when necessary to detonate a loaded shot that coVld not be detonated because of adverse weather or other conditions that could not be reasonably foreseen by Martin Marietta, to maintain blasting safety, or as required to comply with applicable governmental requirements. . 5. Martin Marietta shall notify the Director of the Department of Community Services ("DOCS") promptly of any surface blast that may occur or actually occurs outside the prescribed times of day on the Real Estate. It is the intent of this par3cgraph that Martin Marietta shall notify DOCS as soon as is reasonably possible in the event of the occurrence of a blast outside of the prescribed times so as to permit representatives of DOCS to respond to any community inquiries in respect thereof. 6. Individuals trained and experienc;ed in the design and safe use of surface blasting systems and licensed by the State of Indiana shall conduct all surface blasting on the Real Estate. 7. Surface blasting on the Real Estate shall occur no closer than one thousand seven hundred eighty (1,780') feet (measured horizontally) to any currently existing occupied, single-family residential structure (excluding those situated on the so-called "Mueller Property North" anc;l "Mueller Property South"), or within one hundred (100) (eet, measured horizontally, of any underground pipeline, unless the pipeline company authorizes, or confirms in writing to the Director, a lesser distance, provided that such distance shall in no event be 'less than twenty-five (25) feet. 8. Explosives shall not be stored on the Real Estate. Martin Marietta shall use best practices when loading expl.osives on the Real Estate, and the amount of explosives loaded into each hole shall be monitored to avoid overloadIng a blast. . 9. Fly rock from the Real Estate shall not leave the property owned or controlled by Martin Marietta. 10. Martin Marietta shall monitor drilling .to avoid overdriHing. If overdrilling occurs, a crushed stone filler, either fine or coarse aggregate as appropriate, shall be used. SteIllIIling shall generally be done to a level and in the manner recommended by Vibra- Tech in its letter. of Feb: 8; 2006, in consultation with the blaster. 'MM shall keep such drilling and 3 blasting records as will permit the review of its drilling and stemming at the annual review specified herein. 11. Martin Marietta MM shall use blast designs intended to increase frequency levels above 20 hz. Biast design shall generally conform to the recommendations of Vibra- Tech in its letter of Feb. 8, 2006, in consultation with the blaster. Frequency levels and the achievement of . frequencies above 20 hz shall be one of the review criteria for the annual review of Martin Marietta's practices specified herein. 12. The commitment herein to any blast design, drilling, or stemming rec.ommendation is made expressly subject to the legal right and the duty of the blaster to vary the design to account for the circumstances of each individual blast and shall not be deemed .to restrict or interfere with the exercise of the blaster's judgment and discretion, nor to relieve the blaster ofresponsibility for the safe use of explosives. B. Vibration and Air Overpressure Limits. I, The maximum peak particle velocities for any blast on the Real Estate shall comply with: (1) the requirements of the rules and regulations of the Indiana Department of Homeland Security, generally consistent with Indiana Code 22-11-14, and the regulatlons promulgated thereunder pursuant to 675 lAC 26; and (2) the frequency and vibration criteria referenced in the former U.S. Bureau of Mines Report of Investigations (Rl) 8507, Structural Response and Damage Produced by Ground Vibration from Surface Mine blasting (Siskind 1980), including the . frequency and vibration curve therein commonly referred to as the Siskind Curve; and (3) shall not exceed .5 inches per second peak particle velocity when measured at the property lin.e of any existing single family residential structure in the City of Carmel not owned by Martin Marietta or Mueller. 2. The maximum air overpressure limits from blasting on the Real Estate shall comply with the requirements of the rules and regulations of the Indiana Department of Homeland Security, generally consistent with Indiana Code 22-11-14, and the regulations promulgated thereunder pursuant to 675 IAC 26, which are generally patterned upon the criteria referenced in the former u.s. Bureau of Mines RI 8485, Structure Response and Damage Produced by Airblast from Surface Mining (Siskind 1980), as shown in the table below: 2 sec. duration) 134 db 13 3 db 129 db 105 db 4 C. Monitoring Guidelines. 1. All overpressure on the Real Estate shall be monitored by Vibra-Tech Engineering, Inc. ("Vibra- Tech"), who shall be responsible for reviewing and analyzing the data. Provided, bowever, that if Martin Marietta demonstrates that on average during a calendar twelve (12) month period no more than two (2) blasts per month result in air overpressure exceeding 120 db for a period of three (3) years, it shall be entitled to submit a plan for self-monitoring and the Director is authorized to approve such plan if it contains substantjally the same monitoring specified herein. 2. All blasts on tbe Real Estate shall be monitored by no less than six properly calibrated seismographs recording horizontal and vertical ground vibrations and air overpressure. The location of the monitoring stations shall be acceptable to the Director. All equipment for the monitoring of blasts will be maintained and calibrated by the monitoring company exclusively. 3. The Director may require that additional monitoring stations be located, or that existing monitoring stations be relocated to or from certain sites; provided, however,' that Martin Marietta shall not be reqUIred to provide more than two additional monitoring locations at any given point in time. 4. Records shall be kept by Martin Marietta for each surface blast on the Real Estate, conststent with all requirements set forth in the Indiana Administrative Code (675 lAC 26-3-1, See leu)) and shall include the fa Hawing: a. the date, time and specific location of each blast; b. the weather conditions including: 1. air temperature; 11. wind speed and direction; and HI. cloud cov~r. C. identification of the closest residential structure, and approximate distance ftom the blast; d. the name and license number of the person conducting the blast; and e. the number of holes, diameter and depth of holes, the delay pattern and design, and number of detonators used. 5 5. Martin Marietta shall maintain all records of blasting on the Real Estate for a period not less than three (3) years. . 6. Aimually, within thirty (30) days of the anniversary of the issuance ofthis permit, Martin Marietta. shall provide a report of blasting on the Real Estate to the Director for the preceding year. The blasting report shall contain the date, time, total explosives, pounds per delay, and systems used for each blast, together with a (itatement that the blasting complied with all applicable laws and regulatioI}s. The annual blasting report shall include a review of blasts that register a. PPV greater than..2 inches per second and have a frequency below 20hz, as well as a separate category of biast~ for which the air blast ex:ceeds 120 db. In the event that in any calendar twelve (12) month period more than an average of two (2) blasts per month have a frequency level of less than 20hz for any blasts that exceed .2 inches per second peak particle velocity, Martin Marietta shall submit all information in respect thereto to Vibra- Tech for its review and analysis. As a part of the next succeeding blasting report contemplated by this paragraph 6, Martin Marietta shall submit to. the Director the recommendations' made by Vi bra- Tech in order to modify the blasting practices so as to achieve the goal of frequeocies at or above 20hz for blasts that exceed.2 inches per second peak particle velocity. D. Reportable Events. 1. Martin Marietta shall report to the DOCS any blast that exceeds .5 inches per second, or otherwise does not comply with the Bureau of Mines Siskind curve with respect to a combination of frequency and peak particle velocity in cither circumstance at any of the monitors required hereunder in: subparagraph B.1(3) above (such blasts are hereafter referred to as "Reportable Events"). The report to Does shall contain complete information with respect to such Reportable Events, including blast layout . and design, together with all seismic, decibel, weather arid other data gathered as part of Martin Marietta's monitoring. Martin Marietta agrees to cooperate with the Director with respect to investigations of complaints about blasting and to provide information and data.as reasonably necessary to investigate such complaints. Additionally, Mill-tin Marietta shall make the agreed consultant available to discuss with thc Director the source or reason for. such complaints and to make any recommendations to address such complaints. 2. If five (5) or more Reportable Events occur in any calendar year, within ten (10) days of the fifth event Martin Marietta shall subInit all information on such Reportable Events to Vibra-Tech Inc. for its review and a~alysis. 'Within twenty (20) days after such data is submitted to Vibra- Tech, or at such time as is agreed to by DOCS, Martin Marietta and Vibra- Tech shall meet with Does to discuss the Reportable Events and 6 any recommendations by Vibra- Tech with respect to blasting patterns or practices to minimize, Reportable Events. It shall not be presumed that a change in blasting patterns or practices is necessary merely because of such Reportable Events, but if Vibra- Tech reasonably believes that a change is necessary to prevent frequent Reportable Events, it shall recommend such changes in blasting practices, as it deems necessary. These recommendations shall be discussed at the meeting with DOCS, and Martin Marietta shall he entitled to suggest changes or modifications to the recommendations that would make them less onerous or more acceptable! and Vibra-Tech shall consider Martin Marietta's comments in that regard. Withip. ten (10) days after the meeting, however, Vibra- Tech shall finalize its recommendation arid Martin Marietta agrees to implement such commercially reasonable recommendations as expeditiously as is commercially practicable, given the nature of the recommendations. 3. Martin Marietta further agrees to grant Vibra- Tech access to its records upon request by the-DOCS for the purpose of Vi bra-Tech auditing them to determine that Martin Marietta is complying with the reporting ohligations with respect to Reportable Events contained herein. Any audit report by Vibra- Tech shall report only whether Martin Marietta has complied with its reporting obligations herein and, if it has not, the instances and manner in which it has not complied, including the information and data required to be submitted by Martin Marietta for any Reportable Event. 4. In January of each year, Vibra-Tech shall review Martin. Marietta's blasting records and blasting programs for the prior year for the purpose of making such recominendations as Vi bra- Tech believes may reasonably be necessary to reflect changes in the state of blasting technology that have become commercially practicable. Martin Marietta agrees to consider the recoinmended changes in good faith, and to implement those that do not unreasonably interfere with its operations a.nd are commercially practicable, but otherwise shall be under no obligation to implement them so long as it has less than three Reportable Events during the previous calendar year. 5. An air overpressure measurement in excess of 120 db shall also be deemed a Reportable' Event and the occurrence of five (5) such air overpressure Reportable Events in ~ one hundred twenty day (120) period shall trigger the requirements set forth _ above in subparagraph (2) above. Air overpressure and vibration Reportable Events shall not be combined to trigger the requirements. of subparagraph (2) above. 6. In the event Vibra- Tech is unable to serve in the capacity described hereinabove, Martin Marietta shall propose to DOCS another nationally recognized engineer with experience in mining activities such as those undertaken by Martin Marietta on the Real Estate. Such replacement shall be reasonably acceptable to DOCS. - 7 7. These specific blasting conditions in this Section IT are intended to and do constitute all of the commitments made by Martin Marietta with respect to surface blasting and supersede all other provisions of these conditions with respe_cJ to surface blasting. III. Studies and Monitoring. If the Director determines that additional study or monitoring of off-site impacts from operations on the Real. Estate is necessary, he or she shall notifY Martin Marietta of the particular matter needing study. Martin Marietta shall then present the Director with a proposal to address the matter raised by the Director, at Martin Marietta's expense, within forty-five (45) days. If the Director agrees with the proposal, Martin Marietta shall cause the study or monitoring to be performed at its expense in the time frame set forth in the proposal and shall provide a report of the results to the Director. If the Director does not agree with Martin Marietta's proposal, he or she shall modifY it or present Martin Marietta with his or her own proposal and Martin Marietta shall pay the cost of such studies. IV. Water Monitoring. Martin Marietta will cooperate with the City Utilities Department (the "Department") in the development of a water quality monitoring program acceptable to the Department to monitor potential impacts from openpit mining on the Real Estate. Martin Marietta recognizes that this may require different OF additional wells or monitoring protocols than those currently called for and agrees to pay for those that are made necessary by the mining approved herein, as determined in the Department's reasonable judgment. Martm Manetta recognizes that the Department may wish to conduct additional monitoring at its own expense and agrees to cooperate with the Department to permit such additional monitoring. Further, Martin Marietta shall grant the Department access to the monitoring points, flow meters, and related areas at all reasonable times, subject to compliance with MSHA regulations_ The Department shall also have access to monitoring locations on an as needed basis for emergency purposes_ Additionally, Martin Marietta will notify the Department as to the date of the annual training as prescribed byihe Spill Prevention, Control, and Countermeasure Plan dated April 2003 such that a Department representative can attend and/or participate in the training. V. Buffers and Screening. A. A buffer area of approximately 330 feet in width will ,be maintained from the property line of the Real Estate on the south side of i06th Street as shown on the Mine Plan, Benns or other activities allowed 'under previous permits in this area continue to be allowed. B. All landscaping specified in any plans will be completed and maintained consistent with the Landscaping Plan Map, a copy of which is on file in the Office of DOCS , except as modified herein. 8 VI. Environmental. A. All operations shall be conducted in conformance with the Federal Clean Air Act, Clean Water Act, and applicable statutes and regulations implemented by the. Indiana Department of Environmental Management. B. Martin Marietta shall maintain an approved Spill Prevention, Control, and Countermeasures (SPCC) 'Plan for this facility, a copy of which is on file with the Carmel Fire Department, Carmel Utilities and in the Office of DOeS. C. Martin Marietta will 'maintain an approved Sformwater Mana~ement and Erosion and Sediment Control Report for this facility, a copy of which is on file in the Office of DOeS. ' VII. Periodic Reports. Martin Marietta shall submit a report (the "Report") within thirty (30) days of the two (2) year anniversary date of this permit The Report shall contain the following information with respect to the Real Estate: A. A Mine Plan for operations on the Real Estate consisting of: 1. an Operations Plan; 2. a Mine Plan map; and 3. a Reclamation Plan. B. The Operations Plan for the Real Estate shall include the following: 1. . the general geographic-location of the current mining activity; . . 2. a description ofthe existing condition of the surface at the Mine, including areas already mined or disturbed by mining, the existence of structures, vegetation, and grpund cover; 3. a description of the method of mining showing the method of extraction, the sequence of mining, the dIsposition of materials on the Real Estate, the use of haul routes, ingress and egress from public streets, and an updated Blasting Plan including the following information: a. monitoring locations; b. anticipated frequency of surface mine blasting; c. anticipated range of blast sizes (in tons); d. pre-blast notification (as requested by any interested parties within 9 a one mile radius of the operation); and e. other general blast related information. 4. a description of the expected general direCtion of mining during the next two (2) year period, along with the overall development of the mine. e. The OpeI;ations Plan shall also include a description of the methods used or to be used for preventing pollution from mining on the Real Estate, including but not limited to air pollution, water pollution and noise pollution. If such m'ethods are contained in applications and/or permits issued to Martin Marietta, the submission oisuch applications and permits to the Director shall satisfY this requirement. If not, Martin Marietta shall provide the fo Howing: 1. current and future drainage and water controls, including discharge volumes, water quantity and quality monitoring locations, monitoring wells, and similar water quality and quantity matters; 2. air quality and dust control plans; 3. a complete Spill Prevention Control and Countermeasure (SPCC) plan, updated as necessary, to insure adequate response to potential fuel spills andreleases from mining equipment; 4. emergency response measures in the event of a release that could impact water quality; 5. a description of the employee training for response to spill and release emergencies; and 6. a listing of all chemicals, quantities and storage locations for the facility. D. The Mine Plan map shall be presented on a base map stamped by a professional licensed in Indiana and shall include the following: 1. a map of the location ofthe mine on the Real Estate including boundaries of the Real Estate controlled by Martin Marietta; 2. a schematic outline and legal description of the Real Estate proposed for mining for the life of the mine; 10 3. topographic contours, at two-foot intervals; 4. all areas of excavation, and, if applicable, all blasting areas on the Real Estate; 5. all processing plant areas on the Real Estate; 6. all drainage features, water courses, water discharge points, water impoundments, and grouhd water monitoring locations; 7. the name and address of the mining operation; 8. the mine manager's name and contact information; 9. the scale, a north arrow and a reference datum; 10. the name of the individual responsible for the preparation of the maps and/or photographs; and 11. the date of preparation, and the record of work and/or revisions. E. The Report shall aiso include: 1. a written description detailing any reclamation accomplished on the Real Estate during the prior period; 2. results of studies or monitoring required by the Director or any other city, county, state or federal agency to insure that the requirements of this permit have been, are being, and will be satisfied; and 3. a certification by Martin Marietta that all mining, processing or reclamation conducted during the reporting period was in conformance with the permit and tbt:; approved plans, and that Martin Marietta is in compliance with these conunitments. VIII. Reclamation. Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim the Real Estate as a lake. The ReClamation Plan shall consist of a graphic and written description of the proposed Reclamation and shall: A include maps and cross sections that illustrate the final physical state of the reclaimed land; B. include a description"ofthe manner in which the land is to be reclaimed, including the disposition of topsoi~ and. a schedule for performing any reclamation and. planting and seeding plans that will commence during the next five year period; 11 C. comply generally with the version of the Guiding Principles of the Environmental Stewardship Council Of the Indiana Mineral Aggregate Association tor reclamation, grading and re-vegetation in effect at the time thereclamation plan is submitted; and D. provide a reclamation bond payable to the City in an appropriate and reasonable amount that, in tbe Director's discretion, is sufficient to assure reclamation as described in the application for Special Use. This bond will be kept in full force until Martin Marietta completes the reclamation of the Real Estate, and shall be subject to amendment from time to time as deemed necessary by the Director to assure completion of tbe reclamation. IX. Binding Effect. These Commitments are binding on Martin Marietta as the current lessee and E. & H. Mueller Development, LLC("Mueller") as the current own~r of the Real Estate, each subsequent. lessee and owner thereof; and each person acquiring an interest therein, unless modified or terminated by the BZf.\ or its successor pursuant to this paragraph. These Commitments may be modified or terminated only upon (a) petition by Martin Marietta or its successor, and (b) approval by the BZA after notice and hearing pursuant to the BZA's Rules of Procedure. Until they expire or are modified or terminated pursuant to this paragraph, these. Conimitments shall be enforceable by the City of Cannel or the BZA by injunctive relief, denial of building pennits or approvals in respect of the Real Estate, or other appropriate administrative or judicial remedy, provided that any such relief, denial or other remedy is related to the Real Estate and to some effects or harm from a breach or violation of these Commitments by Martin Marietta or Mueller. These COMMITMENTS may be enforced jointly or severally by the Carmel Board of Zoning . Appealsandlor the City of Carmel Department of Community Services, but shall .create no private right of action. In any proceedings to modity or terminate these Commitments, notice of hearing shall be given to the owners of property as required by the Carmel Zoning Ordinance and the BZA's Rules of Procedure. x. General. A. In all matters where a representative of the City is given discretion to ordef studies or take action, stich representative shall" do so reasonably and shall not require the doing of any act or the expenditure of money for arbitrary or capnclous reasons. B. The approval under Approval Docket No. 05090003 SU is specific to the Martin Marietta proposal for the surface mining of limestone on the Real Estate, and in no way implies that the BZA has reviewed, condoned, or approved any aspect of any other pending application for mining. C. The denial. of a future or other pending application to mine on the Real Estate shall not be deemed a taking based on any theory that the Real Estate has become unusable Jar any purpose other than mining by virtue of the grant of this Special Use pennit. Martin Marietta retains its right to challenge the denial of any future 12 application on any other ground or theory, including a taking theory not based on the grant of the permit herein, whether based on state or federal laws or constitutions, board rules, local ordinances, or otherwise. D. Martin Marietta shall provide access to DOCS and the Department's employees and its consultants, at all reasonable times, for purposes of monitoring compliance with these commitments and any other responsibilities derived there from. E. Unless expressly specified herein, nothing in these commitments shall supersede, suspend, or otherwise modify any commitment or obligation undertaken by Martin Marietta in any other proceeding or docket. F. Whenever the term Martin Marietta is used herein it shall be deemed to refer to the applicant herein and to any successor in interest to the Applicant. COMMITMENTS contained in this instrument shall be effective upon the adoption of Approval Docket No. 05090003 SU by the Carmel Board of Zoning Appeals and shall continue in effect for as long as the above-described parcel of Real Estate remains the subject of the Special Use Permit issued in said Approval Docket No. 05090003 SU or until such other time as may- be specified herein. - The undersigned hereby authorizes the City of Carmel Department of Community Services to record this Statement of Commitments in the Office of the Recorder of Hamilton County, Indiana, upon final approval of Docket No. 05090003 Su. IN WITNESS WHEREOF, Martin Marietta has caused the exe~ution of this instrument this day ofJuly, 2008. MARTIN MARIETTA MATERlALS, INe. By: John J. Tiberi PresidentIMideast Division 13 STATE OF INDIANA ) ) SS: COUNTY OF MARION ) Before me, a Notary Public in and for said County and State, personally appeared John J Tiberi, the PresidentIMideast Division of Martin Marietta Materials, Inc., who acknowledged the execution of the foregoing instrument and who, having been duly sworn, stated that any representations therein contained are true. WITNESS my hand and Notarial Seal this day of July, 2008. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: 14 E. & H. MUELLER DEVELOPMENT, LLC, an Indiana limited liability company By: Signature Its: Printed Name and Tide STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, a N Nary Public in and for said County and State, personally appeared , the Managing Member, authorized agent of E. & H. Mueller Development, LLC, an Indiana limited liability company, who acknowledged the execution of the foregoing instrument and who, having been duly sworn, stated that any representations therein contained are true. WITNESS my hand and Notarial Seal this day of July, 2008. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: This instrument was prepared by and after recordation should be returned to Zef( A. Weiss, Ice Miller LLP,. One American Square, Suite 2900, Indianapolis, Indiana, 46282-0200, Telephone (317) 236-2319. r affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Zeff A. Weiss, Esq. 15 EXHIBIT "E." 1M Draft - July 10, 2008 EXHIBIT A REAL ESTATE DESCRIPTION Part of the North Half of Section 9, Township 17 North, Range 4 East of the Second Princ'ipal Meridian in Clay Township, Hamilton County, Indiana, described as follows: 'Commencing at the Northwest corner of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence So~th 89 degrees 55 minutes 56 seconds East (assumed bearing) on the North line of said Section 9, a distance of 1,336.18 feet to the Northwest corner of the East Half of the Northwest Quarter of said Section 9, said corner being the pLACE OF ~EGINNING of the within described real estate; thence S.outh 00 degrees 11 minutes 12 seconds West on the West line of said East Half 1,716.00 fect; thence South 89. degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a distance of 1,336.01 feet to the West line of the East Half of said Section 9; thence South 00 degrees 11 minutes 33 seconds West on the West line of said East Half 156.75 feet; thence South 89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a distance of919.68 feet to the Westerly line of real estate conveyed to the City of Carmel, Indiana, by a documented titled "Certification of Clerk" recorded in the Office of the Recorder at Hamilton County, Indiana, as InStrument Number 9709754848 (the following eight courses being on the Westerly line of said real estate); 1.) thence North 08 degrees 36 minutes 31 seconds East 885.22 feet; 2.) thence North 02 degrees 53 minutes 53 seconds East 201.00 feet; 3.) thence North 08 degrees 36 minutes 31 seconds East 660.61 feet; 4.) thence North 29 degrees 48 minutes 29 seconds West 55.59 feet; 5.) thence North 80. degrees 51 minutes 37 seconds West 303.34 feet; 6.) thence North 89 degrees 03 minutes 10 seconds West 148.00 feet; 7.) thence North 60 degrees 14 minutes 56 seconds West 57.55 feet; 8,) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet to the North line of said Section 9, said point being 3,302.24 feet South 89 degrees 55 minutes 56 seconds East of the Southwest comer of said Section 9; thence North 89 degrees 55 minutes 56 seconds West on said North line 1,966.06 feet to the place ofbeginning, contamlng 96.921 acres, more or less. EXHIBIT "E" 1M Draft - July 10,2008 EXHIBIT B MASTER LIST OF MAPS AND SUBMITTALS 13 Area Map Cl Zoning Map CI Mine Plan Map . Reclamation Plan Map . . Landscaping PlanMap . Cross Section Map G Erosion and Sediment Control Report G Sound Level Assessment . Spill, Prev~ntion, Control, and Countermeasure (SpeC) Plan (Dated September 6, 2005) (Dated September 6, 2005) (Dated November 28, 2005) (Dated November 28, 2005) (Dated November 28, 2005) (Dated November 28, 2005) (Dated September 2005) (Dated September 2005) (Dated April 2003) If 1622966.10 EXHIBIT "P" MARTIN MARIETTA MATERIALS, INC. MUELLER PROPERTY SOUTH 'UNDERGROUND LIMESTONE MINING SPEciAL USE APPLICATION Docket No. 08030032 SU ST A TEMENI OF COMMITMENTS COMMITMENTS CONCERNING THE USE OR DEVELOPMENT OF REAL ESTATE MADE IN CONNECTION WITH PETITION FOR SPECIAL USE PERMIT Martin Marietta Materials, me. ("Martin Marietta") makes' the following COMMITMENTS concerning the use and developm,ent of the subsurface portion oftha~ parcel ofreal estate located near the southwest comer of the intersection of l06th Street and Hazel Dell Parkway, in the City of Carmel, Hamilton County, Indiana, which is more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Real Estate"). These commitments apply only to the described Real Estate and to no other property owned or controlled by Martin Marietta. Statement of COMMITMENTS: L General Operational Commitments. A. Martin Marietta will develop an' underground' mining operation on the Real Estate in accordance with the plans and submittals identified herein and the commitments made herein. B. The maps, submittals, and undertakings in the T AC responses shaH be deemed the application documents and shall bind Martin Marietta. Attached hereto as Exhibit B is a master list of the maps and submittals governing the application and this approvaL In the event of a conflict between maps or submittals, the most recent submittal shaH be deemed to supersede all prior maps or submittals and to be binding on Martin Marietta. C. Prior to commencement of any work on the Real Estate, Martin Marietta shall provide copies -of approvals and permits from every governmental agency having jurisdiction over the Real ES,tate arid the related underground mining activities of Martin Marietta on the Real Estate, including all submittals to such governmental agenGies, and, shall include all specifications and restrictions contained in such submittals and approvals. D~ Martin Marietta shall use the existing entrance on 96th Street for haul trucks and other heavy equipment accessing the Real Estate. EXHIBIT F II. Blasting Practices. A. General Requirements. 1. Martin Marietta shall c'omply with all applicable state and federal regulations as they relate to blasting on the Real Estate. 2. All underground blasting on the Real Estate shall be limited to the period from 8:00 a.m. to 8:00 p.m. on weekdays (except on holidays recognized by the State ofIndiana when no underground blasting shall be allowed). 3. Explosives used in an underground blast on the Real Estate shall not be detonated at other-times? except when necessary to detonate a loaded shot that could not be detonated because of conditions that could not be reasonably foreseen by Martin Marietta, to maintain blasting safety, or as required to comply with applicable governmental requirements. . 4. Martin Marietta shall notify the Director of the Department of Community Services ("DOCS") promptly of any underground blast that may occur or actually occurs outside the prescribed times of day on the Real Estate. It is the intent of this paragraph that Martin Marietta shall notify DOCS as soon as is reasonably possible in th.e event of the occurrence of a blast outside of the prescribed times so as to permit representatives of DOCS to respond to any community inquiries in respect thereof. 5.' Individuals trained and experienced in the design and safe use of underground blasting systems arid licensed by the State of Indiana shall conduct all underground blasting on the Real Estate. 6. Underground blasting on the Real Estate shall occur no closer than one thousand three hundred (1,300') feet (measured horizontally) to any currently existing oC'cupied, single-family residential structure (excluding those situated on the so-called "Mueller Property North" and "Mueller Property South")"or within one hundred (100) feet, measured horizontally, of any underground pipeline, unless the pipeline company authorizes, or confirms in writing to the Director, a ksser distance, provided that s.uch distance shall in no event be less than twenty-five (25) feet. 7. Explosives shall not he stored on the Real Estate. Martin Marietta shall use best practices when loading explosives on the Real Estate, and the amount of explosives loaded into each hole shall be monitored to avoid overloading a blast. 8. Fly rock from the Real Estate shall not leave the property owned or controlled by Martin Marietta. 9. Martin Marietta MM shall use blast designs intended to increase frequency levels above 20 hz. Frequency levels and the achievement of frequencies 2 above 20.hz shall be one of the review criteria for the annual review of Martin Marietta's practices spedfied herein. 10. The conimitment herein to any bla~t design, drilling, or stemming recommendation is made expressly subject to the legal right and the duty of the blaster to vary the design to account for the circumstances of each, individual blast and shall not be deemed to restrict or interfere with the exercise of the blaster's judgment .and discretion, nor to relleve the blaster of responsibility for the safe use of explosives. B. Vibration Limits. 1. The maximum peak particle velocities for any blast 9n the Real Estate shall comply with: (1) the requirements of the rules and regulations of the Indiana Department of Homeland Security, generally consistent with Indiana Code 22-11 ~ 14, and the regulations promulgated thereunder pursuant to (j75 IAC 26; and (2) the frequency and vibration criteria referenced in the former U.S. Bureau of Mines Report of Investigations (RT) 8507., Structural Response . and . Dal!lage Produced by Ground Vibration from Surface Mine bl~sting (Siskind 1980), including the freqtlency andvipration curve therein commonly referred to as the Siskind Curve; 'and (3) shall not exceed .5 inc:hes pet' second peak particle velocity when measured at the property line of any existing single family residential structure in the City of Carmel not owned by Martin Marietta or MuelleL C. Monitoring Guidelines. 1. All blast vibrations on the Real Estate shall be monitored by Vibra- Tech Engineering, Inc. ("Vibra- Tech"), who shall be responsible for reviewing and analyzing the data. 2. All blasts on the Real .Estate shall be monitored by no less than six propeily calibrated seismographs recording horizontal and verticill ground vibratiQns. The location of the monitoring stations shall be- acceptable to the Director. All equipment for the monitoring of blasts will be maintained and calibrated by the monitoring company exclusively. 3. The Director may require that additional monitoring. stations be located; or that existing monitoring stations be relocated to or from certain sites; provided, however, that Martin Marietta shall not be required to provide more than two additional monitoring locations at any given point in time. 4. Records shall be kept by Martin Marietta for each underground blast on the Real Estate, consistent with all requirements set forth in the Indiana Administrative Code (675 lAC 26-3-1, Sec. leu)) and shall include the following: 3 a. the date, time and specific location of each blast; b. identification of the closest residential structure, and approximate distance from the blast; c. the name and license nUIriber 0 f the person conducting the blast; and d. the number of holes, diameter and depth of holes, the delay pattern and design, and number of detonators used. 5. Martin Marietta shall maintain all records of blasting on the Real Estate for a period not less than three (3) years. 6. Annually, within thirty (30) days of the anniversary of the issuance of the permit thaUs the subject of Docket No. 08030032 SU (but not earlier than the commencement of underground _ blasting), Martin Marietta shall provide a report of underground blasting on the Real Estate to the Director for the preceding year. The blasting report shall contain the date, time, total explosive~, pounds per delay, and systems used for each blast, together with a statement that the blasting complied with - all applicable laws and regulations. The annual-blasting report shall include a review of blasts that register a PPV greater than .2 inches per second and have a frequency below 20hz. Iu the event that in any calendar twelve (12) month period more than an average of two (2) blasts per month have a frequency level of less than 20hz for any blasts that exceed .2 inches per second peak particle velpcity, Martin Marietta shall submit all information in respect thereto to Vibra- Tech for its review and analysis. As a part of the next succeeding blasting report contemplated by this paragraph 6, Martin Marietta shall submit to the Director the recommendations made by Vi bra- Tech in order to m.odify the blasting practices so as to achieve the goal of frequencies at or above 20hz for blasts that exceed .2 inches per second peak particle velocity. D. Reportable Events. 1. Martin Marietta shall report to the DOCS any blast that exceeds .5 inches per second, or otherwise does not comply with the Bureau of Mines Siskind curve with respect to a combination of frequency and peak particle -velocity at any of the monitors required hereunder in subparagraph B.1.(e) above (such blasts are hereafter referred to as "RepoItable Events")_ The report to DOCS shall contain complete information with respect to such Reportable Events, including blast layout and design, together with all seismic, decibel, weather and other data gathered as part of Martin Marietta's monitoring. Martin Marietta agrees to cooperate with the Director with respect to investigations of complaints about blasting and to provide information and 4 data as reasonably necessary to investigate such complaints. Additionally, Martin Marietta shall make the agreed consultant ':lvailable to discuss with the Director the source or reason for such complaints and to make any recoIIl:l1)endations to address such complaints. 2. If five (5) or mote peak particle velocity Reportable Events occur in any calendar year, within ten (10) days of the fifth event Martin Marietta shall submit all information on ~l.lch Reportable Events to Vibra- Tech Inc. for its review and analysis. Within twenty (20) days after such data is submitted to Vibra- Tech, or at such time as is agreed to by DOCS, Martin Marietta and Vibra-Tech shall meet with DOCS to discuss the Reportable Events and any recommendations by Vibra-Te~h with respect to blasting patterns or practices to minimize Reportable Events. It shall not be presumed that a, change in blasting patterns or practices is necessary merely because of such Reportable Events, but ifVibra- Tech reasonably be1iQves that a change is necessary to prevent frequent Reportable Events, it shall recommend such changes in blasting practices, as it deems necessary. These recommendations shall be discussed at the meeting with DOCS, and Martin Marietta shall be entitled to suggest changes or modifications to the recommendations that would make them less onerous or more acceptable, and Vibra-Tech shall consider Martin Marietta's comments in that regard. Within ten (0) days after the meeting, however, Vibra-Tech shall finalize its recommendation and Martin Marietta agrees to implement such commercially reasonable recommendations as expeditiously as is commercially practicable, given the nature of the recommendations. 3. Martin Marietta further agrees to grant Vi bra.. Tech access to its records upon request by the DOCS for the purpose of Vi bra- Tech auditing thetll to detefmine that Martin Mariettais complying with the reporting obligations with respect to Reportable Events contained herein. Any audit report by Vibra- Tech shall report only whether Martin Marietta has complied with its reporting obligations herein and, if it h<l;s not, the instances and manner in which it has not complied, including the information and data required to be'submitted'by Martin Marietta for any Reportable Event. 4. In January of each year or as soon thereafter as is reasoriably practical, Vibra-Tech shall review Martin Marietta's blasting records and blasting programs . for the prior year for the purpose of making such recommendations as Vibra- Tech believes may reasonably be necessary to reflect changes in the state of blasting technology that have become commercially practicable. Martin Marietta agrees to consider the recommended changes in good faith; and to implement those that do not unreasonably interfere with its operations and are commercially . practicable, but otherwise shall be under no obligation to implement them so long as it has less than three Reportable Events during the previous calendar year, 5 5. In the event Vibra- Tech is unable to serve in the capacity described hereinabove, Martin Marietta shall propose to DOCS another nationally -recognized engineer with experience in mining activities such as those undertaken by Martin Marietta on the Real Estate. Such replacement shall be reasonably acceptable to DOCS. 6. These specific blasting_conditicins in this Section II are intended to and do constitute all of the commitments made by Martin Marietta with respect to underground blasting and supersede all other provisions of these conditions with respect to underground blasting_ III. Studies and Monitoring. If the Director determines that additional study or monitoring of off-site impacts from underground mining operations on the Real Estate is necessary, he or she shall notify Martin Marietta of the particular matter needing study. Martin Marietta shall then present the Director with a proposal to address the matter raised by the Director, at Martin Marietta's expense, within forty- five (45) days. If the Director agrees with the proposal, Martin Marietta shall cause the study or monitoring to be performed at its expense in the time frame set forth in the proposal and shall provide a report of the results. to the Director. If the Director does not agree with Martin Marietta's proposal, he or she shall modify it or present Martin Marietta with his or her own proposal and Martin Marietta shall pay the cost of such studies. IV. Water Monitoring. Martin Marietta will cooperate with the City Utilities Department (the "Department") in the development of a water quality monitoring program acceptable to the Department to monitor potential impacts from underground mining on the Real Estate. Martin Marietta recognizes that this ,may require different or additional wens or monitoring protocols than those- currently called for and agrees to' pay for. _ those tbat are made necessary by the mining .approved herein, as determined in the Department's reasonable judgment. Martin Marietta recognizes that the Department may wish to conduct additional monitoring at its own expense and agrees to cooperate with the Department to permit such additional monitoring. Further, Martin Marietta shall grant the Department access to the monitoring points, flow meters, and related areas at all reasonable times, subject to compliance with MSHA regulations. The Department shall also have access to monitoring locations on an as needed basis for emergency purposes. Additionally, Martin Marietta will notify the Department as to the date of the annual training as prescribed by the Spill Prevention, Control, and Countermeasure Plan dated April 2003 such that a Department representative can attend arid/or participate -in the training. V. Environmental. A. All operations shall be. conducted in conformance with the Federal Clean Air Act, Clean Water Act, and applicable statutes and regulations implemented by the Indiana Department of Environmental Management. 6 B. Martin Marietta shall maintain an approved Spill. Prevention, Control, ahd COllntenneasures (SPCC) Plan for this facility, a copy of which is on file with the Carmel Fire Department, Carmel Utilities and in the Office of DOCS. C. Martin Manetta will maintain an approved Stonnwater Management and Erosion and Sediment Control Report for this facility, a copy of which is on file in the Office of DOCS. . VI. Periodic Reports. Martin Marietta shall submit a report (the "Report") within thirty (30) days of the tWo (2) year anniversary date ofthe commencement of underground mining pursuant to the permit that is the subject of Docket No. 08030032 SUo The Report shall contain the following informatiOli with respect to the Real Estate: A. A Mine Plan for operations on the Real Estate consisting of: 1. an Operations Plan; 2. a Mine Plan map; and 3. a Reclamation Plan. B. The Operations Plan for the Real Estate shall include the following: I, the general geograPhic location of the current mining activity; 2. a description Qfthe existing condition of the Mine, including areas already mined or disturbed by mining; 3. a description of the method of mining showing the method of extraction, the sequence. of mining, the disposition of materials on the Real Estate, the use of haul routes, ingress and egress from public streets, and an updated Blastin'g Plan including the following information: a. monitoring locations; b. anticipated frequency ofunderground mine blasting; c. anticipated range of blast sizes (in tons); and d. other general blast related information. 4. a description of the expected general direction of mining during the next two (2) year period, along with the overall development of the mine. C. The Operations Plan shall also include a description of the methods used or to be used for preventing pollution from mining on the Real Estate, including but not limited to Water pollution. If such methods are contained in applications and/or 7 permits issued to Martin Marietta, the submission of such applications and permits to the Director shall satisfY this requirement. If not, Martin Marietta shall provide the following: 1. current and future drainage and water controls, including discharge volumes, water quantity and quality monitoring locations, monitoring wells, and similar water quality and quantity matters; 2. a complete Spill Prevention Control and Countenneasure (SPCC) plan, updated as necessary, to insure adequate response to potential fueL spills and releases from mining equipment; 3. emergency response measures in the event of a release that could impact water quality; 4. a description of the employee training for response to. spill and release emergencies; and 5. a listing of all chemicals, quantities and storage lqcations for the facility. D. The Mine Plan map shall be presented on a base map stamped by a professional licensed in Indiana and shall include the following: 1. a map of the location 0 f the subsurface mine on the Real Estate including boundaries of the Real Estate controlled by Martin Marietta; 2. a schematic outline and legal description of the Real Estate proposed for mining for the life of the mine; 3. all areas of excavation, and, if applicable, all bLasting areas on the Real Estate; 4, all processing plant areas on the Real Est1'lte; 5. all drainage features, water courses, water discharge points, water impoundments, and ground water monitoring locations; 6. the name and address of the mining operation; 7. the mine manager's name and contact information;' 8. the scale, a north arrow and a reference datum; 9. the name of the individual responsible for the preparation of the maps and/or photographs; and 10. the date of preparation, and the record of work and/or revisions. E. The Report shall also include: 8 1. a written description detailing any reclamation accomplished on the Real Estate during the prior period; 2. results, of studies or monitoring required by the Director or.any county, state or federal agency to insure that th~ requirements of this permit have been, are being, and will be satisfied; and 3. a certification by Martin Marietta that all mmmg, processing or reclamation conducted during the reporting period was in conformance with the permit and the approved. plans, and that Martin Marietta is in compliance with these commitments. VII. Reclamation. Unless an alternative reclam~tion plan is approved, Martin Marietta sl1a11 reclaim the surface of the Real Estate as a lake. The Reclam~tion Plan shall consist of a graphic and written description of the proposed Reclamation and shall: A. include maps and cross sections that illustrate the final physical state of the reclaimed land; B. include a description of the manner in which theiand is to be reclaimed and a schedule for performing any reclamation and planting and seeding plans that will . commence during the next five year period; C. cornplygenerally with the version of the Guiding Pi-inciples'ofthe Environmental Stewardship Cotincil of the Indiana Mineral Aggregate Association for reclamation, grading and re-'vegetation in effect at the time the reclamation plan is submitted; and D. provide a rc'Clamation bond payable to the City In an appropriate and reasonable amount that, in the Director's. discretion, is sufficient' to assure reclamation as described in the application for Special Use. This bond will be, kept in full force until Martin Marietta completes the reclamation of the Real Estate, and shall be subject to amendment from time to time as deemed necessary by the Director to assure completion of the reclamation. VIII. Binding Effect. These Commitments are binding on Martin Marietta as the current lessee and E. & H. Mueller Development, LLC ("Mueller") as the current owner of the Real Estate, each subsequent lessee and owner thereof, and each person acqtiiring an interest therein, unless modified or terminated by the BZA or its successor pursuant to this paragraph. These Commitments may be modified or terminated only upon (a) petition by Martin Marietta or its successor, and (b) approval by the BZA after notice and hearing pursuant to the BZA's Rules of Procedure. Until they expire or ~re modified or terminated pursuant to this paragraph, these Commitments shall be enforceable by the City of Carmel or the BZA by injunctive relief, denial of building permits or approvals in respect of the Real Estate; or other appropriate administrative or judicial remedy, 9 provided that any such relief, denial or other remedy is related to the Real Estate and to some effects orhann from a breach or violation ofthese Commitments by Martin Marietta or Mueller. These Conunitments may be enforced jointly or severally by the Carmel Board of Zoning Appeals and/or the City of Carmel Department of Community Services, but shall create no private 'right of action. In any proceedings to modify or terminate these Commitments, notice of hearing shall be given to the owners ofproperty as required by the Carmel Zoning Ordinance and the BZA's Rules of Procedure. IX. General. A. In all matters where a representative of the City is given discretion to order studies or take action, such representative shall do so reasonably and shall not require the doing of any act or the expenditure of money for arbitrary or caprrclOUS reasons. B. The approval under Approval Docket No. 08030032 SU is specific to the Martin Marietta proposal for the underground mining of limestone on the Real Estate, and in no way implies tbat the BZA has reviewed, condoned, or approved any aspect of any other pending application for mining. C. The denial of a future or other pending application to mine on the Real Estate shall not be deemed a taking based on any theory that the Real Estate has become unusable for any purpose' other than mining by virtue of the grant of tbis Special Use permit. Martin Marietta .retains its right to challenge the denial of any future application on any other ground or theory, including a taking tlJ.eory not based on the grant of the permit herein, whether based on. state or federal laws or constitutions, board rules,.locai ordinances, or otherwise. D. Martin Marietta shall provide access to DOCS and the Department's employees and its consultants, at all reasonable times, for purposes of monitoring compli~mce with these commitments and any other responsibilities derived there from. E. Unless expressly specified herein, nothing in these Commitments shall supersede, suspend, or otherwise modify any cominitment or obligation undertaken by Martin Marietta in any other proceeding or docket. F. Whenever the term Martin Marietta is used herein it shall be deemed to refer to the applicant herein and to any successor in interest to the Applicant. COMMITMENTS contained in this instrument shall be effective upon the adoption of Approval Docket No. 08030032 Su byihe Carmel Board of Zoning Appeals and shall continue in effect for as long as the above-described parcel of Real Estate remains the subject of the Special Use Permit isslled in said Approval Docket No. 08030032 SU or until such other time. as may be specified herein. The undersigned hereby authorizes the City of Carmel Department of COmInunity Services to record this Statement of Commitments in the Office of the Recorder of Hamilton County, Indiana, upon final approval of Docket No. 08030032SU. 10 IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument this day of July, 2008. MAR TIN MARlETT A MA TERlALS, INC. By: John 1. Tiberi PresidentIMideast Division STATE OF INDIANA ) ) SS: COUNTY OF MARlON ) Before me, a Notary Public in and for said County and State, personaUy appeared John 1. Tiberi, the President, Mideast Division, of Martin Marietta Materials, Inc., who acknowledged the execution of the foregoing instrument and who, having been duly sworn, stated that any representations therein contained are true. WITNESS my band and Notarial Seal this day of July, 2008. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: 11 , E. & H. MUELLER DEVELOPMENT, LLC, an Indiana limited liability company By: Signature Its: Printed Name and Title STATE OF INDIANA ) ) S8: COUNTY OF ) Before me, a Notary Public in and for said County and State, personally appeared , the Managmg Member, authorized agent of E. & H. Mueller. Development, LLC, an Indiana limited liability company, who acknowledged the execution of the foregoing instrument and who, having been duly sworn, stated that any representations therein contained are true. WITNESS my hand .and Notarial Seal this day of July, 2008. Signature Printed NOTARY PUBLIC My Comrnission.Expires: County of Residence: This instrument was prepared by and after recordation should be returned to Zeff A. Weiss, Ice Miller LLP, One. American Square, Suite 2900, Indianapolis, Indiana, 4628I-0200, Telephone (317) 236-2319. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Zcff A Weiss, Esq. 12 EXHIBIT "E" EXHIBIT A , REAL ESTATE DESCRIPTION Part of the North Half of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana, described as (allows: Commencing at the Northwest comer of Section 9, Township 17 North, Ran~e 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence South 89 degrees 55 minutes 56 seconds East (assumed bearing) on the North line of said Section 9,a distance of 1,336.18 feet to the Northwest comer of the East Half of the 'Northwest Quarter of said Section 9, said corner being the PLACE OF BEGINNING of the within described real estate; thence South 00 degrees 11 minutes 12 seconds West on tl;1e West line of said East Half 1,716~00 feet; thence South 89 degrees 55 mmutes' 56 seconds East parallel with the North line of said Section 9, a distance of 1,336.01 feet to the West line of the East Half of said Section 9; thence South 00 degrees 11 minutes 33 seconds West on the West line of said East Half 156.75 feet; thence South 89 degrees 55 minutes 56 seconds East parallel 'with the North'line of said Section 9, a distance of 9] 9.68 feet to the Westerly line oLreal estate conveyed to the City of Carmel, Indiana, by a documented titled "Certification of Clerk" recorded in the Office of the Recorder at Hamilton County, Indiana, as Instrument Number 9709754848 (the followiJ;1g eight courses being on the Westerly line of said real estate); 1.) thence North 08 degrees 36 minutes 31 seccindsEast 885.22 feet; 2) thence North 02 degrees 53 minutes 53 seconds East 201.00 feet; 3.) thence North 08 degrees 36 minutes 31 seconds East 660.61 feet; 4.) thence North 29 degrees 48 minutes 29 seconds West55.59 feet; 5.) thence North 80 degrees 51 minutes 37 seconds West 303.34 feet; 6.) thence North 89 degrees 03 minutes 10 seconds \yest 148.00 feet; 7.) thence North 60 degrees 14 minutes 56 seconds West 57.55 feet; 8.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet to the North li':1e of said Section 9, said point being 3,302.24 feet South 89 degrees 55 minutes 56 seconds East of the Southwest 'corner of said Section 9; thence North 89 degrees 55 minutes 56 seconds West on said .North line 1,966.06 feet to the place of beginning, containing 96.921 acres, more or less. EXI-llBIT "E" EXHIBIT B MASTER LIST OF MAPS AND SUBMITTALS · Area Map . Zoning Map . Mine Plan Map · Reclamation Plan Map · Landscaping Plan Map · Cross Section Map · Erosion and Sediment Control Report · Spill, Prevention, Control, and Countermeasure (SPCC) Plan (I Project Site Layout · Grading Plan · Cross Section Views IIll05530.6 (Dated March 20, 2008) (Dated March 20, 2008) (Dated March 20, 2008) (Dated March 20, 2008) . (Dated March 20, 2008) (Dated March 20, 2008) (Dated September, 2005) (Dated March 19, 2008) (Dated September 6, 2005) , (Dated September 6, 2005) (Dated April 3, 2008) EXHIBIT "G" UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION MARTIN MARIETTA MATERIALS, INe. Plaintiff, vs. JAMES BRAINARD, Individually and inhis Capacity as Mayor of the CitY of Cannel; CITY OF CARMEL AND eLA Y TOWNSHIP BOARD OF ZONING APPEALS, and its Members, James Hawkins, _Earlene Plavchak, Madeleine Torres, imd Alan Potasnik in their Official 'Capacities; and the CITY OF CARMEL, Defendants. ) ) ) ) ) CASE NO. I:06-cv-0825..DFH-TAB ) ) ) ) ) ) ) ) ) ) CONSENT ORDER AND DISMISSAL WITHOUT PREJUDICE The Court having reviewed parties' Joint Motion for Consent Order and Dismissal Without Prejudice and being otherwise duly advised; it is hereby ORDERED, ADJUDGED, AND DECREED that: (a) The Parties Agreement (attached to parties' Motion for Consent Order), including the respective Commitments. shall govern Martin Marietta's mining operations at the Mueller North Property and the Mueller South Property, and pursuant to the Agreement, the Mining Ordinance shall not apply to operations on the Martin Mariet;ta Property or the Mueller South or North Properties (as those terms are defined in the parties' Agreement); (b) This Order is, in the nature of an injunction, and the Court shall retain jurisdiction of this lawsuit until satisfaction of the conditions set forth in the parties' Agreement, or for a period of one (1) year from the date of this Agreement, whichever is longei; the parties shall advise the EXHIBIT G Court within 340 days of the date of this Consent Order whether continuing jurisdiction is necessary and jurisdiction will be extended for good cause shown only; (c) At the conclusion of this Court's jurisdiction (pursuant to the preceding paragraph), the parties shall tender an order to the Court dismissing this lawsuit with prejudice; Cd) Until such time as this lawsuit is dismissed with prejudice, the applicable statutes of limitations of the claims and counterclaims in this matter shall be tolled retroactively to the date of filing of this cause; and (e) This matter is hereby dismissed without prejudice subject to the other terms of this Consent Order, with the recognition that the parties' Agreement includes a mutual release, thus barring relitigation of any of the parties' claims or counterclaims, such that the "without prejudice" language shall not allow the parties to reopen issues resolved by the Agreement. See generally Dupuy v. McEwen, 495 F.3d807 (7th Cir. 2007); Shapo v. Engle, 463 F.3d 641 (7th Cir. 2006).. Dated: Judge, United States District Court Copies to: Counsel of record via ECF EXHIBIT "H" Description of Land to be Deeded to City of Carmel Upon Completion of Removal of Sand and Gravel . . That portion of the Mueller North Property and the property of Martin Marietta lying north thereof and west of Hazel Dell Parkway, upon which the lake resulting from the removal of sand and gravel is situated, together with a border of 75 feet around the perimeter thereof; provided, . however, that notwithstanding the foregoing, the border along that portion of the property of Martin Marietta lying adjacent .to Woodcreek Subdivision shall extend from the edge of the water to the west line of Martin Marietta's property adjacent to said Woodcreek Subdivision. EXHIBIT J:L H-l I/2176475.4