HomeMy WebLinkAboutBPW-11-05-08-04 Martin Marietta PropertyResolution NO. BPW -11 - a: OIL -O'f
A RESOLUTION OF THEBOARD OF'PURLIC WORKS AND SAFETY
OF THE CITY OF CARMEL. INDIANA, AUTHORIZING THE
ADOPTION OF STRUCTURAL AMENDMENTS TO 'COEXISTENCE >AGREEMENT
WHEREAS, pursuant to ithe, Coexistence Agreement, attached' hereto as Exhibit A, by
and between the Board of Public Works of the City of Carmel, Indiana (the "BPW ") and
.American Aggtegates, Cor=porati-on d/b/a Martin Marietta Aggregates ( "Martin Marietta "), the
BPW and Martin Marietta entered into an agreement, setting forth the tights for each party as
they relate to a;parcel.of property,being•condemnectby the.BPW;
WHEREAS, Martin, Marietta andthe;BPW with to .amend that Coeki'stence-Agreement
as outlined,in the 'Structural Amendments to CoexistenceAgteement, attached hereto. as Exhibit.
B:
WHEREAS, the.BP-W'believes',these. Stiiict_ural Amendments will tie in the best interest
of the City of Carmel and will serve to :furtherdefine the rights and responsibilities of the BPW
and Martin.Matietta,as,they relate to the property.;
NOWAIIEREFORE, -BE IT RESOLVED AND AGREED by The Board Of-Public
Works and Safety of the City of,Carmet. Indiana, as-follows:
1. The BPW hereby authorizes the Stuctural Amendments to the Coexistence
Agreement as outlined in. Exhibit 13.
2. That the members of the .BPW are hereby authorized. to execute any and all
documents required in connection with-the amendments to the Coexistence Agreement.
3. That the members of the BPW hereby delegate' the 'execution of all documents
required for the condemnation and/or purchase: of the property, referred to therein to John;M.
Duffy. Director of Utilities'(' Duffy "); and'authotize Duffy'to approve-non- substantial changes in
fotnt or substance to the. Structural Amendments or the closing documents or' condemnation
documents as may be necessary or appropriate to accomplish the purposes of this Resolution',
with any such approval to be conclusively evidenced by the authorized execution of such
documents.
SO RESOLVED by the Board of Public Works and,Safety of the City of Carmel,
Indiana,-this ,day of „2008.-
Iraiffes'BTainard, Mayor
Date:. Il i gift,
K
Lori Watson, i `emb'ei•
Date:
Mary Ann Bu`rk' Member
Date:
Prepared by:,
Randolph L. Seger
B ❑vGHAM,MCHALE,LLP
2700 Market Tower
10 West Market Street
Indianapolis,.Indiana 46204
EXHIBIT •B
STRUCTURAL AMENDMENTS TO COEXISTENCE AGREEMENT'
In accordance with 'the. provisions of Section 4 of the, Coexistence Agreement dated
September 27,'2007 ( "Coexistence Agreement "), entered into by MARTIN MARIETTA
MATERIALS, INC., a North Carolina corporation,, also: known and doing busrness as American
Aggregates Corporation (hereinafter jointly referred to as "Martin. Marietta ") and the BOARD
OF PUBLIC WORKS OF Tl-IE CITY OF CARMEL, a body-politic of the state of Indiana
( "BPW "), the Coexistence Agreement is. hereby ainended this 3 f clay of-October, 2008, to
include the following provisions.
1.
Martin .:Marietta= agrees that it will: (a) begin :its benching .as- described in the
report by Agapito; Associates, Inc. entitled "Singlet Expanded Level Study North Indianapolis
Mine Indianapolis,. Indiana" and dated October 2007 (hereinafter referred to as the "Agapito
Report") in an area located 100 feet or nioreouts "idethe perimeter of the Surface Parcel ( "Surface
Parcel" and any other defined terms from the Coexistence Agreement, have the same meanings
herein unless othenvise stated) and (b) observe.the,performance and characteristics of the rock
and adjust -the procedure accordingly before proceeding with benching into 'the• area under the
Surface Parcel and within i 00 .feet of-the perimeter of the .Surface Parcel; provided, however,
that the failure of Martin Marietta to observe the performanceLand characteristics of the rock as
referred to in (b).above, and to adjustits = procedures - accordingly, shall not-iinpose. any liability
whatsoever upon Martin Marietta, - unless such failure is a. willful, and wanton disregard of
commercially reasonable standard - mining.practices which:resuits in .damage,to property owned
by BPW on the Surface Parcel.
2 Martin Marietta agrees..to incorporate{a modified "pillar design into its mining plan
that, leaves. rock between select pillars resulting in widened pillars at certain'. locations under the
property. A diagram showing the locations of the widened pillars 'inttached as Exhibit A to
these Structural Amendments to the Coexistence Agreement ( "Structural. Amendments ") and is
incorporated herein.
3. Martin Marietta herebygrants to BPW, and its agents and representatives, aright
of entry upon the Subsurface Parcel to inspect the subsurface nine, with such inspections being
permitted at the: following times, or upon occurrence of the following events;.
1. on,an annual basis;
i. prior to additional benching as described iit.paragraph 1 above, and
ii. as needed to evaluate unusual circumstances, such as abnormal or
excessive surface subsidence, from time to time as determined in the
exercise of BPW's reasonable discretion.
This right of entry Shall include the right to access the Subsurface Parcel, from time to time,
through then - active mine: entrances; or =portals' located (i) on the Surface Parcel or Subsurface
Parcel (collectively, the "On -Site Entrances ")'and (ii) on property owned or operated by Martin
Marietta located outside the vertical and horizontal `.boundaries of' the Surface Parcel and
Subsurface Parcel on the effective date hereof, or on the date of such inspections (collectively,
the "Off-Site Property "), as legally described and'iliustrated on- Exhibit B attached hereto and
incorporated herein by this reference, with then- active mine entrances or portals located on the
Off -Site. Property being hereinafter collectively referred to as the "Off-Site Entrance(s) ". The
On -Site Entrances(s) and Off-Site-Entrance(s) are. hereinafter sometimes referred to individually
as an "Entrance ", and collectively.as the `"Entrances ". All such BPWiihspectians shall be subject
to not less than two (2) business' days prior "written notice (to be sent either via-facsimile or e-
mail, together with a copy by US Mail. addressed to Martin Matietta,Materia]s,•Ine., Attention:
Edwin.Gehr, VicePresident— General Manager — IindianaDistrict, 1.1405 N. Pennsylvania, Site
250, Cannel, Indiana 46032). BPW, and its agents and.,representatives, shall have the -right to
access the subsurface mine -from an Entrance designated by a representative of Martin Marietta at
the time of such inspections. However, at no time.shall-BPW, -and/or any of 'its agents and /or
representatives, have the tight to proceed to any Entrapce(s) for access to`the Subsurface Parcel,
until-such time .as,.each and every snob person shall tiave•reeeived the, appropriate safety training
by a duly authorized and designated ,representative of Martin _Marietta pursuant to its then
existing - protocol for visitors--entering it mines. `It. is anticipated that prior to entering into any
such Entrance, BPW and /or its agents and/or representatives shall meet: at the facility's office
located near 96th Street to receive such safety training. Further, all BPW inspections will be
accompanied by a Martin Marietta. representative and at no time will BPW and/or its agents
and/or representatives be allowed to access the Martin - Marietta property and/or, mine facilities at
any time without being accompanied by a.Martin Marietta representative..
During the period after the date Martin Marietta notifies BPW that it is -no longer mining
Minerals beneath the Surface Parcel or within 100 feet of the perimeter thereof, but prior to the
date BPW takes possession of the Subsurface Parcel, such inspections shall be limited to the
times, and to the occurrence of events, describedan (i) and (iii) above. Once- BPW takes
possession ofthe'SubsurfaceParcel,ahen pursuant to Section 210..of the Coexistence.Agreement
BPW shall grant t� Martin Marietta astibsurface easement permitting Martin.Marietta,to traverse
the Subsurface Parcel in the manner -and for-the purposes described in the_Subsurface Easement
attached hereto as,Exhibit C. Martin Marietta covenants_and agrees tliat,BPW's . right of entry to
the Subsurface Parcel throughahe' Entrances ;shall remain; in full foiceand effect both prior to and
following-.the date BPW takes possession of the, Subsurface Parcel, it being understood that
access via the Entrances shall.likely be BPW's orilymeans of access to the Subsurface Parcel.
4. Martin. Marietta agrees to coordinate its blasting, activities with BPW's
construction ,activities that involve newly poured concrete. To the extent practicable, Martin
Marietta agrees ,to refrain- from blasting the area directly under the ;Surface.Parcel and within 100
feetofthe Surface Parcel during construction of the Water Treatment.Facilities, To the extent
that 'Martin. Marietta; in- its sole discretion;, believes that it is commercially necessary for it to
blast in this area during the period of 'the construction of the Water: Treatment Facilities, Martin
Marietta shall so; notify BPW. BPW shall provide.Martih Marietta with written notice
not less than two (2) business days prior to any intended pouring of concrete and any other
activities which, maybe affected -by blasting: Martin"Marietta' agrees not to_ blast for a period of
48 hours following completion of any suchpounng,of concrete which is the subject of any.such_
notice or notices by BPW' to Martin Marietta.. Further, and notwithstanding anything herein
contained to the contrary, BPW shall advise Martin Marietta, in writing; not less than two (2)
business days prior to anytime or times >thatworkmen involved, the construction of the Water
Treatment Facilities 'are intended to be working in trenches in 'connection with any such
construction work: Martin Marietta will not blast during-such times when such workers are
expected' to be working.in trenches on or about: the Surface Parcel; provided, however, that such
workmen shall not bean trenches for more, than 80 consecutive business days. BPW and Martin
Marietta shall work together to 'assure an appropriate construction 'schedule by BPW and at the
same time allow Martin Marietta-to blast as necessary in order to operate its adjoining and
subsurface [nines:
5. The sentence in the second paragraph of the Background section of the
Coexistence Agreement that identifies the "highest pointofthe ceiling of the mine" is amended
4
CITY OF CARMEL, INDIANA
BY ITS BOARD OF PUBLIC WORKS
AND SAFETY
Brainard, Presiding Offic • r
Date: ///re
Mary Ann But€, Member
e! /3 /eg
Date:
Lori Watson. P- tuber.
Date: III
ATTEST:
D a L. Cordray, IAMC k- Treasurer
STATE OF INDIANA )
COUNTY OF )
SS:
Before me, a Notary Public in and for said County and State, personally appeared James
Brainard, MaprinMt e, and Lori Watson, by me known to be the Members of the City of
a 5t .4qr m-iohfl5a!1. �tfMi
Carmel Board of Public Works and Safety, and Diana L. Cordrav, Clerk - Treasure of the City of
Carmel, who acknowledged the execution of the foregoing "Agreement" on behalf of,the City of,
Carmel, Indiana.
Witness my hand and Notarial Seal this day of ° ,2008.
r
My Commission Expires: I
%i / /p /p �' My County of Residence:- al_..
5*_k,�(C .
"\AS \o r"
NOTARY PUBLIC
rrrrr. �] .....,�
L° - anti-)
Printed Name
Date:
such that "611 feet above: mean sea lever is replaced with "559 feet,.abo9e mean sea.level"
because the ceiling of the'mine was Misidentified in the Ceexistence,Agreement.
Martin Marietta .agrees ; that, to the extent it decides to lower the floor -of the mine
located under the,SurfaceYParce1 and within 100,feet ofthe Surface. Parcel, . it will use reasonable
and safe mining practices and do so consistent with the design dimensions; and recommendations
in the Agapito Report, as the same may beiarnended from time to time. In the event that any
updates relate to mining under the Surface Parcel on within T00 feet of the Surface Parcel, they
will be provided to BPW. If Martin Marietta- decides to make' any changes or additions. to the
existing mine outside the parameters• discussed in the.Agapito Report,`it-agrees10 use reasonable
and safe mining practices and hire Agapito or a, similarly qualified 'mining engineering finn to
design and implement those changes of additions. Martin Marietta will notify the BPW if it
decides to make such changes or additions outside the parameters discussed in the Agapito
Report.
IN WITNESS WHEREOF; the undersigned parties ,have-caused. the < execution of these
Structural Amendments to Coexistence Agreement: by their duly authorized officer or
representative as of the day, month and, year first above written..
CITY OF CARMEL, INDIANA
BY ITS 'BOARD.OFPUBLICWORKS
AND SAFETY
Ames Brainard, President
Date: // nc rU
MARTIN - MARIETTA MATERIALS, INC:
Tiberi .P - sident — Mideast
on
EXHIBIT A
Diagram of Widened Pillars
108th Street
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EXHIBIT B
Legal Description and Illustration of the Adjoining Off -Site Property
LEGAL DESCRIPTION- PARCELS'IH &I❑
PAR.CEL1
A part ofithe:Northeast Quarter or Section 8,'Township 17llNorth, Range 4 East, Hamilton
County, indiana, described as follows: Commencing at the northeast corner of said quarter
section; thence North 89 degrees 18 minutes 06 seconds'West 45.00 feet along the north line of
said quarter section to the northerly' prolongation of-the. west. boundary of Gray Road (as now
located, September 1997); thence South 00 degrees 11 minutes 19 seconds West 40.00 feet
parallel with the east line of said quarter section and along the prolongation of said boundary to a
5/8 inch rebar with cap 'narked "RS FIRM 0018" and the point of beginning of1this description,
which .point of beginning is the intersection of the. west boundary of Gray Road with the south
boundary of 106th Street .(as now located, September 1997); thence continuing South 00 degrees
11 minutes 19 seconds West-2606 ;03 feet parallel with the east line of Said quarter section and along
the boundary of said Gray Road to a 5/8-inch rebar with said cap onAhe.south line of said quarter
section; thence North 89 degrees 24 minutes 40,seconds West. 1581.45 feet along said south line
to the center line of Carmel Creek, (passing through a point -50.00 feet on line from said center
line); thence northerly and westerly along the center'li'ne of said Carmel Creek to the east property
line of Blue Creek Woods Estates, as recorded in Plat. Book 8, page 74; thence North 00
degrees 53 minutes 50 .seconds East 715.56 feet (passingcthrough a point • 50.00 feet.on line from
said center line) along said east line to a 5/8, inch•reba"r with said cap; thence South 89. degrees 21
minutes 22 seconds East 807.05.feet:to a_5 /81inch rebar with said cap; thence .North 00 degrees
18 minutes 47 seconds East '1284.08 ,feet to a 5/8 inch rebar with said cap on the south
boundary of 106th Street; thence< South 89 degrees 18 minutes 06 seconds East 628.57 feet parallel
with the north line of said quarter section and along the boundary of said 1.06t" Street'to a:5 /8 inch
rebar with said cap, thence South 00 degrees 11 minutes 19 seconds West 780.00 feet parallel with
the east line of said quarter section to a 5/8 inch rebar.with.said. cap; :thence South 89 degrees 1'8
minutes 06 seconds East 198.00 feet parallel with the north line of•said quarter section; thence
North 00 degrees 11 minutes 19 seconds East 18000 feet parallel with the east line of said
quarter section to.a,5 /8 inchirebar with said cap on.the south boundary of said,1.06th Street; thence
South 89 degrees 18 minutes 06 seconds East`465:00 feet Parallel with north , line -of said section
and along the boundary of said 106th Street to the point of beginning and containing 93.901
acres, more or less.,
PARCEL II
A part of Section 9, Township 17 North, Range 4 East, Hamilton County, Indiana, described as
follows: Commencing at the northwest corner of said section; thence South 89 degrees 55
minutes 59 seconds East 79.79;feet- along the =north line of_said section; thence South 00 degrees
04 minutes 01 second West 60.00 feet;to a 5/8 inch rebar with.cap marked "RS FIRM 0018" on
the south boundary of 106th Street (as now'located, September 1997), and the point of beginning of
this description: thence South 89, degrees. 55 minutes 59 seconds East 1269.94feet parallel with
she north line of said section tand along(he;boundary of said 106th Street"to a 5/8 inch rebar with said
cap on the east line of the West FIalf of the Northwest Quarter of said section; thence South 00
degrees 30 minutes 11 seconds West 1609.6.3 feet along said eastline-to a >5/8 .inch rebar with
said cap; thence North 89 degrees 54 minutes; 50 seconds Fast 1291,05 feet parallel with the
south line of the Northwest Quarter of said section to a 5/8 inch rebar with said cap;
1 342560.vI
thence South 00 degrees 49 minutes 06 seconds West. 140:30 feet parallel with the east line of the
Northwest Quarter of said section to a 5/8 inch rebar with said cap; thence South 89 degrees 10
minutes 54 seconds East 50.00 feet to a 5/8 inch rebar with said cap on the east line of the
Northwest Quarter of said section; thence South 00 degrees 49 minutes 06 seconds West 15.94
feet along said east line to a 5/8 inch rebar with said cap; thence North 89 degrees 54 minutes 50
seconds East 1391.28 feet, more or Tess, (passing through a point 1341.28 feet on line) parallel
with the south line of the Northeast Quarter of said section to the high water mark of White
River; thence South 21 degrees 35 minutes 49 seconds West 350.06 feet along the high water
mark of said White River; thence South 11 degrees 04 minutes 44 seconds West 427.98 feet
along said high water mark; thence South 06 degrees 20 minutes 28 seconds West 568.01 feet
along said high water mark; thence South 15 degrees 36 minutes 24 seconds West 183.15 feet
along said high water mark; thence South 37 degrees 08 minutes 47 seconds West 76.74 feet
along said high water mark; thence South 02 degrees 57 minutes 20 seconds East 61.15 feet
along said high water mark; thence South 06 degrees 30 minutes 48 seconds West 84.38 feet
along said high water mark to the north property line of the Town of Carmel, as recorded in
Deed Record 270, page 517; thence North 90 degrees 00 minutes 00 seconds West 332.02 feet,
more or less, (passing through a point 50.00 feet on line) along said north line to a 5/8 inch rebar
with said cap; thence South 45 degrees 49 minutes 06 seconds West 1000.53 feet to a 5/8 inch
rebar with said cap on the east line of the Southwest Quarter of said section;, thence South 00
degrees 49 minutes 06 seconds West 990.25 feet along said east line to a 5/8 inch rebar with said
cap on the north boundary of 96t11 Street (as now located, September 1997); thence South 89
degrees 53 minutes 58 seconds West 647.09 feet parallel with the south line of said section and
along the boundary of said 96th Street to a 5/8 inch rebar with said cap; thence North 84 degrees
23 minutes 24 seconds West 100.50 feet along said boundary to a 5/8 inch rebar with said cap;
thence South 78 degrees 35 minutes 22 seconds West 50.99 feet along said boundary to a 5/8
inch rebar with said cap; thence South 89 degrees 53 minutes 58 seconds West 700.00 feet
parallel with the south line of said section and along.said boundary to a 5/8 inch rebar with said
cap; thence North 87 degrees 14 minutes 17 seconds West 100.12 feet along said boundary to a
5/8 inch rebar with said cap; thence South 89 degrees 53 minutes 58 seconds West 250.00 feet
parallel with the south line of said section and along said boundary to a 5/8 inch rebar with said
cap; thence South 84 degrees 11 minutes 20 seconds West 100.50 feet along said boundary to a
5/8 inch rebar with said cap; thence South 89 degrees 53 minutes. 58 seconds West 400.00 feet
parallel with the south line of said section and along said boundary to a 5/8 inch rebar with said
cap; thence North 78 degrees 47 minutes 26 seconds West 50.99 feet,along said boundary to a
5/8 inch rebar with said cap; thence South 86 degrees 05 minutes 07 seconds West 150.33 feet
along said boundary to a 5/8 inch rebar with said cap; thence South 89 degrees 53 minutes 58
seconds West 40.00 feet parallel with the south line of said section and along said boundary to a
5/8 inch rebar with said cap; thence North 46 degrees 16 minutes 03 seconds West 25.95 feet
along said boundary to a 5/8 inch rebar with said cap on the east boundary of Gray Road (as now
located, September 1997); thence North 00 degrees 21 minutes 37 seconds East 2550.11 feet
parallel with the west line of said section and along the boundary of said Gray Road to a 5/8 inch
rebar with said cap on the north line of the Southwest Quarter of said section, thence North 00
degrees 11 minutes 19 seconds East 2550.51 feet parallel with the west line of' said section and
along said boundary to a 5/8 inch rebar with said cap; thence North 45 degrees 03 minutes 34
seconds East 49.49 feet along said boundary to the point of beginning and containing 312.557
acres, more or less.
1342560.v1
PARCEL III
A part of Section 16, Township 17 North, Range 4 East, Marion County, Indiana, described as
follows: Commencing at the northwest corner of the Northeast Quarter of said section; thence
South 89 degrees 53 minutes 59 seconds West 17.71 feet along the north line of said section to a
P.K. nail and the point of beginning of this description: thence South 24 degrees 49 minutes 08
second West 282.02 feet to a 5/8 inch rebar with cap marked "RS FIRM 0018"; thence South 65
degrees 10 minutes 52 seconds East 215.00 feet to a 5/8 inch rebar with said cap; thence North
24 degrees 26 minutes 07 seconds East 292.09 feet to a 5/8 inch rebar with said cap on the south
boundary of 96th Street (as now located, September 1997); thence North 00 degrees 00 minutes
43 seconds West 80.34 feet to a P.K. nail on the north line of said section; thence North 89
degrees 59 minutes 38 seconds East 454.59 feet along said north line to a P.K. nail; thence South 54
degrees 26 minutes 23 seconds East 85.36 feet to a 5/8 inch rebar with said cap; thence South 27
degrees 37 minutes 00 seconds East 320.50 feet to a 5/8 inch rebar with said cap; thence
North 59 degrees 20 minutes 00 seconds•East 51.64 feet, more or less, (passing through a point
25.00 feet on line) to the high water mark of White River; thence South 21 degrees 41 minutes
05 seconds East 182.99 feet along the high water mark of said White River; thence South 37
degrees 30 minutes 20 seconds East 110.94 feet along said high water mark;. thence South 17
degrees 55 minutes 19 seconds East 441.49 feet along said high water mark; thence South 25
degrees 40 minutes 25 seconds East 488.60 feet along said high water mark; thence South 38
degrees 07 minutes 52 seconds East 104.08 .feet along said high water mark; thence
Southwesterly along said high water mark 1212.93 feet along an are to the right an having a
radius of 968.33 feet and subtended by a long chord having a bearing of South 24 degrees 38
minutes 42 seconds West and a length of 1135.18 feet; thence South 56 degrees 35 minutes 26
seconds West 289.50 feet along said high water: mark; thence South 67 degrees 04 minutes 10
seconds West 193.58 feet along said high water mark; thence South 44 degrees 14 minutes 52
seconds West 79.65 feet along said high water mark; thence South 70 degrees 30 minutes 52
seconds West 191.12 feet along said high water mark; thence South 62 degrees 59 minutes 17
seconds West 498.33 feet along said high. water mark; thence South 83 degrees 03 minutes 34
seconds West 285.90 feet along said high water, mark; thence South 74 degrees 05 minutes 05
seconds West.417.66 feet along said high water mark; thence South 88 degrees 52 minutes 08
seconds West 516.38 feet along said high water mark.to the west line of the East Half of the
West Half of said section; thence North 00 degrees 06 minutes 01 second East 3278.25 feet,
more or less, (passing through a.point 50.00 feet on line) along said west line to a P.K. nail on
the north line of said section; thence North 89 degrees 53. minutes 58 seconds East 1307.48 feet
along said north line to the point of beginning and containing 171.225 acres, more or less.
The above real estate-located in Hamilton.County, in the State of Indiana and described as Parcels I,
1I and III shall exclude the real estate described below:
A Part of the West Half of the Northwest Quarter of Section 9, Township 17 North, Range 4
East of the Second Principal Meridian, situated in Clay Township, Hamilton County, Indiana
and being more particularly described as follows:
Commencing at the Northeast corner of the West Half of the Northwest Quarter of said
Section 9, Township 17 North, Range 4 East; thence North 89 degrees 55 minutes 56
Seconds West (basis of bearings) on and along the North line of said West Half 60.00 feet;
thence South 00 degrees 11 minutes 12 seconds West parallel with the East line of said West.
1342560.v1
Half 60.00 feet to a point on the South line of 106th Street as described in Instrument
Number 199500052806 on file in the Office of the Recorder of Hamilton County, Indiana
and the Point of Beginning of this description; thence continuing South 00 degrees 11
minutes 12 seconds West parallel with the East line of said West Half 728.11 feet; thence
North 89 degrees 48 minutes 48 seconds West 1216.19 feet to a point on the Easterly line
Gray Road as described in instruments Numbered 200500039772 and 200500075502
(Office of the Recorder); thence on and along said East line of Gray Road by the following
three (3) courses: 1.) North 00 degrees 11 minutes 15 seconds East 379.71 feet; thence 2.)
North 15 degrees 38 minutes 57 seconds East 187.53 feet; thence 3.) North 00 degrees 11
minutes 17 seconds East 165.23 feet to a point. on the South line of 106th Street; thence
South 89 degrees 55 minutes 56 seconds East on and along said South line 1166.19 feet to
the Point of Beginning, containing 20.00 acres, more or less.
•
(1 •r:. ate1
f
EXHIBIT.0
Form of Subsurface Easement
70481 0.63898//# 1340774.v l
EXHIBIT A
EXECUTION COPY
COEXISTENCE AGREEMENT
THIS COEXISTF CE AGREEMENT (this "Agreement "), made and entered into
effective as of the _ day of ?BB? by and :between MARTIN MARIETTA
MATERIALS, I C. a Delta are corporation, ircibknown and doing business as American
Aggregates Corporation (hereinafter jointly referred to as "Martin Marietta ") and the BOARD
OF PUBLIC WORKS OF TI -IE CITY OF CARMEL, a body politic of the state of Indiana (the
"BPW "),
Witnesseth that:
BACKGROUND
Martin Marietta is in the business of extracting and selling sand, gravel, limestone and
other products (hereinafter collectively referred to as "Products" or "Minerals ") for use in the
local construction industry and trades. To this end, Martin Marietta, and its predecessors, have
undertaken both surface and subsurface mining from a point south of East 96'h Street to a point
north of East 1.16th Street, on both sides of what is now known as Hazel Dell Parkway
(previously known, in some sections, as. River Road) as well as on. both sides of Gray Road, in
both Marion County and Hamilton County, Indiana, as the case may be. Martin Marietta has
previously extracted minerals from .a parcel- which is approximately 20 acres in Size, more or
less, located near the southeast corner of the intersection of Gray Road and East 106th Street in
Hamilton County, Indiana, (excluding any area east of the west right of way line of the
North /South service road currently serving Concrete InduslrieS, Inc. from 1061h St.) such
property being more particularly described on Exhibit A attached hereto and incorporated herein
by this reference (th•"Property ").
Martin Marietta currently mines Products from beneath the surface of the Property by
means of blasting. BPW has notified Martin Marietta. that it intends to- acquire, by contract, or
through its eminent domain powers, the entire Property by taking title .to and possession of the
portion of the Property lying above the highest point of the ceiling of the mine (611 feet above
mean sea level) (hereinafter referred.to as the "Surface Parcel ") immediately, and taking title to
and possession of the portion of the Property situated beneath the. Surface Parcel (hereinafter
referred to as the "Subsurface Parcel ") after Martin Marietta has had sufficient time to complete
removal of the limestone and other Products contained therein. To That end BPW has filed a
Complaint under the Indiana Eminent Domain Act, IC 32 -24 -1 et. sec., which action is styled
and now pending as Board of Public Works and Safety of the City of Carmel, Indiana, on behalf
of Carmel Utilities vs.. American Aggregates Corporation, d /b /a Marlin Marietta Aggregates,
Hamilton Superior Cause No. 29001- 061.0 -PL -1055 (the "Lawsuit "). Martin Marietta and BPW
anticipate and intend to reaeh agreement on the terms upon' which BPW may acquire the
Property pursuant to its eniinent domain powers, leaving, however, to be decided at a later date
tither through negotiation or trial by jury pursuant to the Eminent Domain Act in the Lawsuit the
amount of damages to which Martin Marietta is entitled as a result of the taking of the Property.
Martin Marietta and BPW anticipate entering into a purchase agreement detailing all of the terms
ofBPW's acquisition of the Property, which agreement will include -all of the terms for the initial
r
acquisition of the Surface Parcel and the deferred acquisition of the Subsurface Parcel.
BPW acknowledges that Martin Marietta has extracted Products from the Property and
sunounding areas for Many years and intends to continue to.remove underground limestone and
other Products from the Subsurface. Parcel and from the surface and subsurface on parcels
surrounding the Property, and that it intends to continue to remove (he stone primarily by
blasting and. using such means and methods as are permitted under applicable laws. Further,
Martin Marietta operates an active.mine on property adjacent to the Property and currently does
and will continue to transport,. crush, screen, blast, wash, convey, stockpile, sell, and engage in
other activities normal and incident to the operation of a crushed stone quarry or mine and a sand
and gravel. mine.or quarry, using such means and methods as are permitted under applicable state
and federal laws.
Martin Marietta has agreed to waive any and all objections that it might otherwise have to
the right, power and process undertaken by BPW t� take the Property pursuant to the Indiana
Eminent Domain Act under and pursuant to the Lawsuit, in exchange for the agreement of BPW
to enter into this Agreement. BPW hereby further acknowledges and agrees that Martin Marietta
would not waive its right to object to the proposed taking of the Property by BPW but for the
entry into this Coexistence Agreement and the agreemen•of BPW to abide by the terms and
conditions hereof:
NOW, THEREFORE, in consideration of the foregoing premises, and the sum of Ten and
00 /100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
GENERAL PROVISIONS
Incorporation of Background /Recitals and Effect of Agreement on Future
Contracts and Proceedings. The background and recitals set forth above are incorporated herein
by this reference as if fully restated herein as part of this Agreement. Upon execution of this
Agreement, Martin Marietta and BPW shall be bound as follows:
A Martin Marietta agrees to waive any and.all objections that it might otherwise
have to the right, power and process undertaken by BPW to take the
Property pursuant to the Indiana Eminent Domain Act under and pursuant
to the Lawsuit: and
B BPW agrees to be bound by the teens of this Agreement whether the parties
enter into a purchase agreement detailing all of the terms of BPW's
acquisition of the Properly, or whether it obtains the Property pursuant to
its eminent domain powers.
2. BPW Covenants. BPW hereby covenants, acknowledges and agrees that for good
and valuable consideration, including but not limited to the agreement of Martin Marietta to
waive any objections it may have in and to the right of BPW io acquire the Property, as follows:
A BPW shall initially develop and construct upon the Surface Parcel water
treatment facilities and related iiprovements ( "Water Treatment
Facilities ") for the purpose of receiving, processing and distributing potable
water. Such Water Treatment Facilities and any other uses or
improvements on Property shall be designed, constructed and maintained
by BPW.so as to withstand theitnpacts of the activities of Martin Marietta
known by BPW prior to construction of the Water Treatment Facilities and
normally conducted in Martin Marietta's business, including blasting,
whether conducted on the Subsurface Parcel or any other property owned
or controlled by Martin Marietta so long as Martin Marietta's activities
comply tvith state and federal, laiv as the same exist on the date of this
Agreement and its mining practices and plans comply with the Martin
Marietta Covenants set out in Section 3 of this Agreement.
B BPW agrees that, for twenty -five (25) years from and after the date of this
Agreeient, the Surface Parcel shall be used only for the development,
construction and operation of such Water Treatment Facilities, together
with other ancillary municipal uses ( "Facilities "), provided that such
ancillary uses do not use more than 25% of the surface area of the Surface
Parcel. However, BPW agrees that the ancillary uses shall not include any
use which is considered hazardous, toxic, or requires a NPDES .permit, air
discharge permit, orthat could adversely affect the use, enjoyment or value
of the Subsurface Parcel or the adjoining property.
C BPW hereby waives, releases, and agrees to indemnify, defend and hold
harmless Martin Marietta for all claims, whether .based in contract, tort or
nuisance and for damage or damage alleged to have occurred to the
improvements constructed by 13PW on the Surface Parcel, or for any other
matter or thing conducted or operated by I3PW (or anyone on the Surface
Parcel pursuant to authority granted by BPW) on the Surface Parcel, which
actions .stem from activities undertaken or activities alleged to have been
undertaken by Mania Marietta in and. about the. Subsurface Parcel or the
properties owned, leased, or otherwise controlled by Martin Marietta within
,a two mile radius of the Property, so long as such activities were
undertaken by Martin Marietta in accordance with the covenants set forth
below in Section 3 of this Agreement and, the applicable state and federal
laws for such operations as of the date of this Agreement. This release,
discharge: and indemnity as provided for above, includes but is not limited
to any and all reasonable legal fees incurred by Martin Marietta in
defending. from any and all claims, actions and causes of actions of' any
kind or nature arising out of the operations of Martin Marietta on its
property, whether based. in contract or tort, so long as such operations
comply with the covenants set-forth below in Section 3 of this Agreement
and applicable state and federal laws. The 'indemnity set forth herein shall
be interpreted as broadly as permitted by Indiana law.
D BPW hereby agrees that it shall not attempt to take possession of the
Subsurface Parcel without Martin Marietta's consent until oiler Martin
Marietta has completed all excavation and mining related operations on the
Subsurface Parcel. Further, in the event BPW or any successor to BPW
shall nonetheless breach this covenant, and attempt to take possession of
the Subsurface Parcel prior to the, above referenced event without Martin
Marietta's consent, Martin Marietta shall be entitled to damages in an
amount equal to the value of the entirety of the Property as if the prior
acquisition of the Property never occurred and without set -off for any
amounts previously paid by BPW for the Property.
E BPW further acknowledges that one of. the reasons Martin Marietta has
resisted the taking of its property is a concern that the proximity of a public
facility to its mining activities might be used in the future to limit, curtail or
prohibit Martin Marietta's mining activities. BPW has assured Martin
Marietta that neither its Water Treatment Facilities nor any other use of the
Property by BPW, nor its ownership of the Property will be used by BPW
to curtail, limit or prohibit any mining activity by Martin Marietta that is
lawful under current state or federal law and which mining activity is
consistent with the. Martin Marietta Covenants set out in Section 3 of this
Agreement. This Agreement shall thus beinterpreted and applied to further
such agreement to the maximum extent possible- and this provision shall
prevail over any otherpart of this Agreement that is in any way inconsistent
with it. The'rule'of construction that provisions of an agreement shall all be
given effect and :harmonized shall not apply to any inconsistency of this
provision with any other part .of -this Agreement and this provision shall be
given priinacy in all cases of ambiguity or inconsistency.
F BPW acknowledges that Ntartin Marietta has arranged its facilities and
operations based on its ownership of the entire tract of which the Property
is a part and agrees that •BPW will not take any action against Martin
Marietta that would. require Martin Marietta to change, diminish, modify, or
eliminate operations to make them compliant with environmental, land use,
or nuisance based laws that may Measure impacts or compliance at the new
property line established by the acquisition. As a pan of this Agreement,
and prior to the conveyance or taking of any property, the parties shall
prepare -and execute an acceptable easement permitting the determination of
compliance with any and all local, state, or federal laws, rules, or
regulations governing blasting impacts, air emissions, noise, light, water
discharge, applicable setbacks, side yards or similar restrictions, and any
other impacts from Martin Marietta's mining operations at the rights of way
lines along 106'h Street and Gray Road, as if Martin Marietta was the fee
owner of the Properly, as long as the ,granting of the easement is in
accordance with applicable state and federal laws, and such equipment
utilized in this regard is erected in accordance with all applicable state and
federal laws and the granting of the easement and placement of such
4
equipment is done in a manner that BPW reasonably determines will not
interfere with its construction and operation of the Water Treatment
Facilities.
G BPW shall grant Martin Marietta an easement, leasehold, or other estate in
land permitting it to traverse the subsurface parcel for purposes of
accessing Martin Marietta's other property, operating the rest of its mine
safely, or complying with any other governmental law, rule, or regulation
aficr the Subsurface Parcel is acquired' by BPW.
H BPW acknowledges that subsequent to its acquisition of the Surface Parcel,
and during and after the construction of its Water. Treatment Facilities,
Martin Marietta intends to .continue to mine the Products from the
Subsurface Parcel. BPW agrees to compensate, indemnify, defend and
hold harmless Martin Marietta from and against any and all damages, costs,
claims or causes of action of any kind or nature, caused by BPW, Carmel
Utilities or any of their employees, agents, contractors, engineers, architects
or representatives or other persons working on behalf of BPW whether
based in contract or tort, in respect of any damage or destruction to any
property of Martin .Marietta and /or persons situated in or about, or
employed and /or used in connection with the mining of Products from
Subsurface Parcel or any adjoining parcels, whether surface. or subsurface,
duringthe construction and /or subsequent operation of the Water Treatment
Facilities. BPW shall pay all such damages or claims to Martin Marietta,
including all reasonable attorneys' fees. and costs incurred in connection
with enforcing the provisions of this paragraph 1-1, within sixty (60) days of
the submission of a claim therefore by Martin Marietta, which claim shall
include reasonable detail itemizing any and all damages and costs incurred
as a result of the activities of 8P \V in connection with the Surface Parcel.
3. Ib'lartin Marietta Covenants. Martin Marietta hereby covenants, acknowledges
and agrees, for itself, its agents, employees,.and affiliated companies, that for good and valuable
consideration, including but not limited to the covenants agreed to by BPW herein, as follows:
A Martin Marietta will continue to mine the Subsurface Parcel and any other
property owned or controlled by Martin Marietta in the immediate area,
using such mining practice* and methods as are. permitted under applicable
state and federal laws.
B Martin Marietta has advised I3PW that it intends to lower the floor of the
existing Subsurface, Parcel, which will .affect the height of the pillars
supporting the roof of the underground nine. Martin Marietta agrees,
within fourteen (14) days after execution of this Agreement, to provide
BPW with the details of its plan to lower the floor of the existing
Subsurface Parcel and 13PW has or will satisfy itself that the support
remaining thereafter is adequate to support whatever load BPW's activities
5
place on the roof of the.mine. Martin Marietta agrees to carry out its efforts
to lower the floor of the Subsurface Parcel in accordance With the plan
provided to BPW, and agrees not to materially deviate from that plan and
not to change the support. system under the Property, or within 200 feet of
its.perimeter without giving BPW ninety (90) days notice of any changes to
that plan prior to implementation, and obtaining BPW's written consent.
BPW's. consent shall be given within seventy -five (75) days of said notice
and shall not be unreasonably withheld.
4. Changes after Inspection. The parties agree that BPW or its agents need to
investigate and inspect the mine, the Property and the Surface and Subsurface Parcels. Martin
Marietta agrees to permit such investigations and inspection to occur immediately upon
execution of this Agreement. Such inspection includes, but is not limited to, inspecting and
measuring, surveying, photographing (including video recording), testing or sampling the
Property, including the mine and the Subsurface Parcel. After it acquires possession of the
Surface Parcel, BPW can install any testing equipment on the Surface Parcel that it finds useful.
Additionally, in order to allow BPW or its agents to properly investigate the mine, Martin
Marietta agrees to provide BPW immediately upon execution of this Agreement with the
following documents and infomtation: (1) a copy of the lease between Concrete Construction,
Inc. and Martin Marietta for the property just south ofthe Property; (ii) copies of any title liens
and encumbrances that are known to Martin Marietta but not filed of record in the office of the
Recorder of Hamilton- County, Indiana, in respect of the Property; (iii) a copy of the mining plan
for the Surface and Subsurface Parcels and the area within 200 feet 'immediately surrounding it;
(iv) all reports and documents evaluating the structural support system for the mine which have
been prepared by Agapito Associates, Inc., or used by Agapito Associates,.itc., in preparation of
those reports and documents; and (v) a copy of any surveys.or drawings of the mine underneath
the Property. If, after inspecting the above documents and information, BPW' or its agents need
additional documents or information related to the terms of this Agreement to properly
investigate and inspect.the mine, Martin Marietta agrees to cooperate with BPW to provide the
documents or infornation to BP W. The purpose of theinspection shall be to permit designated
I3PW employees and its consultants to evaluate the structural feasibility of the use of the
Property for BPW's purposes contemporaneously with Martin Marietta's use of the subsurface
parcel for mining, including any changes that may be made by Martin Marietta in the
configuration of the nine that would affect. any use of the Properly by BPW. It.is contemplated
by the parties that this presents principally structural issues to be evaluated by BPW and its
consultants Insect on their inspection. Within 30 days following receipt of the report on the
inspection from Jones & Henry Engineers, Ltd., BPW shall notify Martin Marietta in writing if it
finds it reasonably necessary, to modify this Agreement to nuke the Property•structurally sound
so that the Water Treatment Facilities can be safely constructed and operated on it concurrently
with Martin Marietta's anticipated mining activities in the area. Any such amendment proposed
by BPW is hereinafter referred to as the "Structurally Required Amendment ". Additionally,
BP \V shall notify Martin Marietta in writing within 30 days following receipt of the report on the
inspection from Jones & Henry Engineers, Ltd. if it finds that it is reasonably necessary to amend
the Agreement to modify the boundaries of the Property to allow the \Vater •Treatment Facilities
to be safely constructed and operated on it, and such proposed amendment shall be considered a
Structurally Required Amendment for purposes of this Section 4. Any modification of the
6.
boundaries of the Property shall not materially interfere with Martin Marietta's mining of the
Subsurface Parcel or any surface parcel. If BPW fails to give notice of such a Structurally
Required Amendment, it shall be deemed to have waived its right to propose any changes to this
.Agreement and shall be bound by it, The notice shall specify each change or addition to this
Agreement or the terns of its acquisition of. the Property that.BPW wishes made as a Structurally
Required Amendment. Provided, however, that BPW shall not be permitted to propose: (A)
changes. in allowed blasting limits as long as those followed by Martin Marietta meet all
requirements of state and federal law; (B) any change that legally or practically. impairs Martin
Marietta's ability to traverse the subsurface parcel to access other portions of its property, or
impairs the use of other portions of Martin Marietta's property not under or within 200 feet of
the Property; and (C) any change that legally or practically materially impairs Martin Marietta's
ability to mine any subsurface or surface parcel. If BPW gives timely notice of a Structurally
Required Amendment, thereafter the parties shall negotiate in good faith to resolve any disputes
over the requested amendment. If the parties are unable to agree to the Structurally Required
Amendment proposed by BPW and, in the reasonable opinion of Martin Marietta, such
amendment will have a material adverse impact on any aspect of Martin Marietta's operations,
Martin Marietta may elect: (I) to withdraw from this Agreement and raise any defense or claim
available to it with respecrto the condemnation; or (2) accept the change and recover full and
fair compensation as determined by the Court from BPW for the impact of BPW's requested
changes on Martin Marietta's operations, profits, reserves, or the value of its land. If Martin
Marietta decides to withdraw from this Agreement as a result of Structurally Required
Amendment, this Agreement will terminate, BPW may proceed with its condemnation, Martin
Marietta will be. free to pursue the objections that it has filed in the Lawsuit and BPW will not be
limited in any way by the terms of this Agreeiitent. If BPW determines as a result of such
inspection of the mine by BPW or its agents that. For reasons other than a Structurally Required
Amendment, it is not economically feasible for BPW to develop and construct the Water
Treatment Facilities on the Surface.Parcel while Martin Marietta continues to mine Products and
Minerals from the Subsurface Parcel or from Martin Marietta's other mining operations, BPW
agrees to dismiss the Lawsuit and abandon its efforts to acquire by eminent domain all or any
part of the Property or any other property owned by Martin Marietta south of 116i11 Street and
east of Cray Road for purposes of constructing Water Treatment Facilities. Other than as set
forth above in this Section 4 in respect of a Structurally Required Amendment, Martin Marietta
shall not he compelled or required io negotiate an amcnclment ;to this Agreement and BPW shall
not be allowed to declare it terminated.
5. Purchase of Water. The parties agree to negotiate in .good faith for BPW to
purchase the water that Martin Mariana removes from the .Property or any adjoining properties
owned or controlled .by Martin, Marietta.
6. Sesimic Monitoring. After BPW's inspection and the resolution of any proposed
Structurally Required Amendments, if BPW still desires to acquire the Property, it shall be
entitled to install and maintain a seismograph on the Property for a period of not more than 30
days. All data gathered shall he the property of Martin Marietta and subject to the
Confidentiality Agreement entered into between the patties contemporaneously with this
agreement.
7
7. Confidentiality and Return of Information. All documents and information
provided to BPW or obtained by it pursuant to this Agreement; including but not limited to
seismic data from any monitor located on site while Martin Marietta still owns such property,
shall he subject to the Confidentiality Agreement referenced above.
8. Use of Material by Expei-ts. Each person (other than John Duffy) that is given
access to any information that is designated confidential, or who enters Martin Marietta's
property for any reason in connection with this Agreement shall first•agree that no confidential
information obtained by him shall be used. in any other case and that he will not agree voluntarily
to be.a witness or a consultant for BPW, the•City of Cannel, or any official of the City of Cannel
in any presently pending case or any case arising out of the facts of any presently pending case
involving Martin Marietta or the mine at issue, except for disputes that arise out of the
construction of the Water Treatment Facilities, this Agreement, or the Confidentiality and
Nondisclosure Agreement or Agreement for Purchase and Sale executed concurrently therewith.
9. Notices. Any notice, demand, request or other communication which any party
hereto may be required or may desire to give hereunder shall.be•in writing, addressed as follows
and shall be deemed to have been properly given if hand. delivered (effective upon delivery), if
sent by reputable overnight courier (effective the business day following delivery to such
courier) or if mailed (effective two business days after mailing) by United) States registered or
certified mail, postage prepaid, return receipt requested:
If to Ivlartin Narietta:
Martin Marietta Materials, Inc.
1980 East 116th Street, Suite 200
Cannel, IN 46032
Attention: John J. T.iberi,.President — Mideast Division
with a copy to:
• and to:
Martin Marietta Materials; Inc.
PO Box 30013
Raleigh, NC 27622
Attn: Helen Haynes, Associate General Counsel
ICE MILLER, LLP
One American Square
Suite 3100
Indianapolis, IN 46282 -0002
Attention: 7_eff.A. Weiss, Esq.
8
If to BPW:
Board of Public Works of City of Cannel
Carmel City Hall
One Civic Square
Carmel, Indiana 46032
Attention: John Duffy, Director
with a copy to:
Bingham McHale LLP
2700 Market Tower
10 West Markel Street
Indianapolis, IN 46204 -4900
Attention: Randolph Seger, Esq.
or at such other address as the party to be served with notice may have furnished in writing to the
party seeking or desiring to serve notice as a place for the service of notice. Notices given in any
other fashioh shall be deemed effective only upon receipt.
10. Modification, Waiver. No modification, waiver, amendment, discharge or change
of this .Agreement shall be valid unless the same 'is in writing and signed by the party against
which the enforcement of such modification, waiver, a nendment, discharge or change is sought.
II. Governing Law. This Agreement shall he governed by and construed under the
internal laws (as opposed to the laws of contliets) of the :State of Indiana.
12. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed deemed to be an original and all of which taken together shall constitute one and the
same agreement.
13. Successors and Assigns. The provisions of this Agreement shall be binding upon
an inure to the benefit of the parties 'hereto and each of their. respective .representatives,
successors and assigns, subject to the provisions herein restricting assignment.
14. Conflicts. In the event ohm an inconsistency.between the terms of this Agreement
and any of the terms of the Indiana Eminent Domain Act, the terms of this Agreement shall
control.
15. Jurisdiction. With respect to any suit, action of proceedings relating to this
Agreement, each party irrevocably (i) agrees to submit any claim to the United States District
Court for the Southeni District of Indiana and (ii) waivesany objection which it may have at any
time to the laying of venue of any proceedings'brought in any such court; waives any claim that
such proceedings have been brought in an inconvenient forum and further waives the right to
object, with respect to such proceedings, that such court does not have junscliction over such
9
party. However, to the extent that such court independently determines that it lacks jurisdiction,
the matter can proceed in the appropriate fonun.
16. Attorneys' Fees. If either party institutes an action against the other party relating
to the provisions of this Agreement or any default hereunder, the unsuccessful party to such
action will reimburse the successful party for ;he reasonable attorneys' fees, disbursements and
other litigation expenses incurred by the successful party.
17. Severabiliiy. If any provision of this Agreement is determined by a court having
jurisdiction to be illegal, invalid or unenforceable under any present or-future law,.the remainder
of this Agreement will not be affected thereby. It is the intention of the parties that if any
provision is so held to be illegal, invalid or unenforceable, there will be added in lieu thereof a
provision as similar in temps to such.provision as is possible that is legal, valid and enforceable.
18. Headings. The headings used in this Agreement are for ease in reference only and
are not intended to affect the interpretation.of this Agreement in any way.
19. Amendment. Neither this Agreement nor any of the provisions hereof can be
changed, waived, discharged or terminated, except by an instrument in writing signed by the
party against whom enforcement of the change, waiver, discharge or termination is sought.
20. Supersession. This Agreement supersedes, in all respects, all prior written or oral
agreements between the parties hereto relating to this Agreement and there are no agreements,
understandings, warranties or representations between the parties except as set forth herein.
21. Construction. Tile parties acknowledge that each. party and each party's counsel
have reviewed and revised this Agreement and that the normal rule of construction to the effect
that any ambiguities are to he resolved against the drafting party will not be employed in the
interpretation of this Agreement or any amendments or schedules hereto.
22. Authorization. The persons executing and delivering this Agreement on behalf of
the panics hereto represent and warrant to the-other party that such person is duly authorized to
act for and on behalf of said patty, and execute and deliver tliis Agreement in such capacity as is
indicated below.
IN WITNESS WHEREOF, the undersigned parties have caused the execution of this
Agreement by their duly authorized officer /paruter as of the day, month and year first above
written.
BOARD OF PUBLIC WORKS OF MARTIN Iv1ARIETTA MATERIALS, INC.
CITY OF CARMEL, INDIANA
B y:
J nS es Brainard, President
10
By:
CITY OF CARMEL, INDIANA
BY ITS BOARD OF PUBLIC WORKS " ,
AND SAFETY
es Brainard, Presiding 0
Date: 9 a
Mary Ann B . ke .Member
Date: 7 - D 7
lni -Cl te 1
Lori Watson, Member
Date:
ATTEST:
Diana L. Cordray, 1 Clerk-Treasurer.
STATE OFINDIANA )
SS:
COUNTY OF rAt I 4Vn )
Before me, a Notary Public in and for said County,and. State, personally appeared James
Brainard, Mary Ann Burke; s =Wiutwa,.by me known to bethe,Members'of the City of
agrvia -! -J,th - * yy Rat
Carmel Board ofPublic Works and Safety, and Diana L. Cordrav Clerk - Treasure of t}Te City of
Cannel, who acknowledged the execution of the foregoing "Agreement" on belUalf of the City of
Carmel, Indiana. _
Witness -my hand and,Notarial;Seal this
19 day oft 5 i4-vse .qj *,.2007
• P:
NOTARY PUBLIC
C . Pkri"1
My Commission Expires: Printed Name
t i? /4'.g My County of Residence:
Date: ` 2-n 0-1
STATE OF INDIANA
) SS:
COUNTY OF MARION
Before nte, .'Notary rubIle in and For sari County and State; personally appeared, John J.
Tiberi, the 'President - Mideast Division oftMariin Mai ietta.lhitalenals, Inc., who acknowledged
the execution of the foregoing Coexistence .Agreement, and who,'ha"ing,been duly sworn, stated
that any representations therein eontaitied are true.-
Witness 'My hand and;NotarihL Seal Ibis J/ y of October, 2007.
My Coimnission Expires ; f /
STATE OF-INDIANA
) SS:
COUNTY OF MARION
ice-- ,42 _ -°se
(signature)
Ru /a. f
(printed.narnc)
Notary Public
County of :Residence: l'OGek
Before me, tt Notary rtiblic in,anil fors rid County and •State, personal appeared James
Brainard. the Ftesidenr of the Baird of Public Works of the City of ` rmel, Indiana, who
acknowledged the execution of he foregoing Coexistence Agreeme , '41x1 who, having been
duly sworn, sttlted,that any representations therein contained are tr.
Witness riiy hand iintl.Notarial Seal this day o
My Commission Expires:
ctober, 2007.
(printed flame)
(signature)
Npfary Public
County 61Residence:
This instrument prepared by a when :reeorilesl return tor. Ze
One American Square, Sui ')100, .Indiaiiapohs, IN 462S2
perjury, that I have tak i reasonable care to redact each
document, unless required by law. Z'eff A. Weiss
111980524;4
ETA. Weiss, Esq:.Ice Miller L.LI',
l-dffirntrunder the penalties for
Social Security number in this