Loading...
HomeMy WebLinkAboutSettlement Agreement 7-17-08 EXECUTION COPY Settlement Agreement by and among City of Carmel, Indiana and Mayor James Brainard and The Carmel. Board of Zoning Appeals and Martin Marietta Materials, Inc. and E H Mueller Development L.L.C. July 17, 2008 1/2176475.4 TABLE OF CONTENTS Page ARTICLE I. Martin Marietta's Special Use Permit Applications 2 ARTICLE II. The Mining Ordinance Dispute 3 ARTICLE III. The Eminent Domain Action 4 ARTICLE IV. Contractual Undertakings 4 ARTICLE V. Incorporation of Recitals 5 ARTICLE VI. Agreement 5 1. Definitions 5 2. Remand to the BZA 6 3. City Role 7 4. Conditions Precedent 7 5. Dismissal of Pending Lawsuits 8 6. Compliance with taws 8 7. Withdrawal of Certain Application; No Further Applications for Mueller North Property 8 8. No New Land Uses; Martin Marietta Property and Mueller South Property 9 9. Surface Blasting 10 10. Annual Fee 10 11. Donation of Real Property 10 12. Assistance to Kingswood 11 13. Additional'Signage in Kingswood Subdivision 11 14. Acknowledgment of certain of Martin Marietta's Underground Mining Rights 11 15. Continuing validity and enforceability of Hazel Dell Agreement 12 16. Vested Mining and Operational Rights; Covenant Running with the Land 12 17. Preservations of Remedies 15 18. Representations and Warranties of the City 15 19. .Representations and Warranties of Martin Marietta 16 20. Certain Restrictions on "Mining Operations North of 106th St. or on Mueller South 16 21. Breach and Cure 17 22. Enforceability 17 23. Attorneys' Fees and Costs 18 24. Addition and Replacement of Equipment 18 25. Non Mining Uses 18 26. Issuance of Permits 18 27. No Expiration of Rights 18 28. Inapplicability of Mining Ordinance 19 -1 112176475.4 29. Waiver and Release of Claims 19 30. Successors and Assigns; Third Party Beneficiaries 20 31. Notices 20 32. Amendment 22 33. Entire Agreement 22 34. Governing. Law. 23 35. Interpretation 23 36. Exhibits 23 37. Counterparts 23 38. Authorization by Department of Community Services 23 SCHEDULE OF EXHIBITS Exhibit A Hazel Dell. Agreement, dated November 5, 1997 Exhibit B Mueller Agreement, dated August 21, 2001 Exhibit C Kingswood Settlement, dated May 17, 2002 Exhibit D -1 Legal Description for Mueller North Property Exhibit D -2 Legal Description for Mueller South Property Exhibit E Statement of Commitments for Mueller South- Limestone Exhibit F Statement of Commitments for Mueller South Underground Exhibit G Form of Consent Order to be filed in Federal Suit Exhibit H Description of Land to be Deeded to City of Carmel Upon Completion of Removal of Sand and Gravel -ii I/2176475.4 SETTLEMENT AGREEMENT This Settlement Agreement (this "Agreement is made and entered into to be effective as of the 17 clay 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 from 96th St. up to, at one point, 116th 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 settlement are to terminate litigation that has been costly to the City while at the 1/2176475.4 same time protecting Carmel residents from potentially adverse impacts that they claim could result from Martin Marietta's proposed expansion of its existing 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 Carmel for the construction of Hazel Dell Parkway, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference (the "Hazel Dell Agreement On or about August 27, 2001, The Helen M. Mueller 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 Kingswood 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 longterm lease with Mueller for certain property commonly referred to as "Mueller North Property" and "Mueller South Property generally located at the northwest corner and southwest comer, respectively, of 106th Street and Hazel Dell Parkway, in the City of Carmel, such properties being more particularly described on Exhibits "D-1" 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 and 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 Marietta's 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 -conduct underground mining 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 withdrawn 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 106 St., as well as certain restrictions on the use of the 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- I/2176475.4 subsequently withdrawn, and a second ordinance, Carmel Ordinance No. D- 1688 -04, as Amended (the "Mining Ordinance was initially enjoined by Hamilton Superior Court but the trial court's ruling on the injunction was reversed by the Indiana Supreme Court. See City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781 (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, with 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. 29D01- 0610 -PL -1055 (the "Eminent Domain Action 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 1/2176475.4 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 96 St. and south of East 116 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 106th Street constituting the dividing line between the two properties. 5 1/2176475.4 c. except where expressly modified elsewhere in this Agreement, the phrase "mining" shall refer to the right of Martin Marietta to mine and extract any minerals found on the Martin Marietta Property and/or the Mueller Property using any method 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 lawful 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 required by IC 36- 7- 919(e). -6- 1/2176475.4 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. 05010021 -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"; 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 I/2176475.4 specifically referencing the limited applicability of the Mining Ordinance referenced in Article VI., Section 6 hereafter. 5. Dismissal of 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 Carmel 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 for Mueller North Property. Martin Marietta shall withdraw its application for a special use permit to conduct underground limestone mining 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 on 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 ATF 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 1/2176475.4 the intention that stone processing, 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 05010021 -SU (iv) Carmel Sand PIant 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 and/or the BZA, as applicable, shall process any necessary applications for approvals in accordance with all applicable laws and rules, 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 a new land use on the Martin Marietta Property only, mining and Related -9 I/2176475.4 Industries do not constitute new land uses, 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 processing 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 annual license fee of Ten Thousand Dollars ($10,000.00) 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 Mueller, Martin Marietta and the City, Martin Marietta and Mueller shall donate the real 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 Exhibit "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 -10 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 Mueller. 12. Assistance to Kingswood. Consistent with the City's goal of protecting Carmel 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 signage 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 on such 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 I/2176475.4 Carmel further confirms 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, maintenance, 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 Agreement, 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 106th 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 and 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 IC 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 owned or leased by Martin Marietta comply in all material respects with all applicable Cannel 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 effectuate 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 112176475.4 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, or the 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 of this Agreement by the City has been or will be duly authorized by all necessary action of the 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 112176475.4 agreement to which the City is a party. The obligations of the City set forth herein are enforceable according to their terms. 19. Representations and 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 all requisite power and authority to consummate the transactions contemplated by this Agreement; b. The execution 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 will 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 106th 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 St. 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., Section 14 above. Further, the Mueller South Property shall be used only for open pit and underground mining (including conveyers with either or both 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 breaching 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 shall 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 intended 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 Commitments entered into by Martin Marietta in connection 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 run with the properties referenced herein and are made expressly binding 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 and 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 enforce 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 prohibit or exclude other non- mining uses of the 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. Issuance 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 necessary permits 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 of a zoning, improvement location permit, building permit, or other permit for any land use that complies with this Agreement. 27. No Expiration of Rights. It is expressly recognize& 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 I/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 of 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, affiliates, 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 claims 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 damages, judgments, extents, executions and liabilities whatsoever, both in law and in equity, which the Releasing Parties, and each of them, ever had, now have, or which they or their successors, heirs, executors, administrators or assigns hereafter can, shall, or may have against the Released Parties, or any one of them, jointly or severally, for or by reason of any matter, cause or thing whatsoever arising at any time prior to the date of this Agreement, through the date of this Agreement, including but not limited to any and all claims, demands or liabilities asserted or which could have been asserted by the Releasing Parties in the Federal Suit. or the other lawsuits to be dismissed as referenced in Article VI, Section 5 above, the intention hereof being to release completely, absolutely and finally, the Released Parties from all liabilities arising from any matter or thing occurring prior to the date of this Agreement. 30. Successors and Assigns; Third Party Beneficiaries. This Agreement is intended to inure to the benefit of the parties hereto, to Martin Marietta's and Mueller's tenants and licensees (whether under a lease or at will), and to their successors and assigns. The parties do not intend to, and do not make any other person, thing, or entity a third -party beneficiary of this Agreement and it shall be so interpreted. 31. Notices. For purposes of notice under this Agreement, a ll such notices shall be in writing, and shall be effective either on (i) the date of delivery if delivered personally; (ii) the day after delivery if sent by 'a nationally recognized overnight courier such as Federal Express; and (iii) three (3) days after delivery with the United States Postal Service, if sent by First Class postage prepaid, certified mail, return receipt requested; in each case addressed to the parties hereto as follows: -20 I/2176475.4 If to the City of Carmel: City of Carmel Office of the Mayor One Civic Square Carmel, 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. Pennsylvania, 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 1/2176475.4 If to the BZA: Carmel Board of Zoning Appeals Attention: Chairman One Civic Square Carmel, IN 46032 With a copy to: Carmel City Attorney One Civic Square 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 Tyner, Jr., Managing Member 16404 Oak Road Westfield, IN 46074 With a copy to: Church, Church, Hittle Antrim Attn: 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 -22 I/2176475.4 Confidentiality Agreement entered into in connection with the Water Plant Real Estate; (5) commitments of record entered into by Martin Marietta in connection with any issuance of a Special Use Permit; (6) the Mueller Agreement; and (7) all agreements between the Muellers and Martin Marietta, this Agreement constitutes the sole and entire agreement between the Parties hereto with respect to these transactions herein described and supersedes any prior understandings or written or oral agreements with respect to this Agreement. 34. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. 35. Interpretation. The Parties and their respective counsel have either participated in the preparation of this Agreement or reviewed it, and therefore it is deemed to have been mutually prepared. 36. Exhibits. All exhibits referenced herein shall be considered incorporated herein as an integral part of this Agreement. 37. Counterparts. This Agreement may be executed in separate counterparts each of which when so executed shall be an original; but all of such counterparts shall together constitute but one and the same instrument. This Agreement may be executed by facsimile and any signature by facsimile shall be deemed to be an original signature. 38. Authorization by Department of Community Services. The Director of the Department of Community Services, solely in his representative capacity, is made a party hereto for the sole purpose of confirming and accepting the interpretation and application of laws, rules and regulations within the jurisdiction of such Department. 39. Captions; Incorporation of Recitals and Exhibits. The captions and headings of various Articles, Sections and Exhibits referenced herein are for convenience only and are not to be considered as defining or limiting in any way, the scope or intent of the provisions hereof. 23 112176475.4 Notwithstanding the foregoing, each of the Recitals and Exhibits referenced herein are incorporated and expressly made a part hereof. -24 I/2176475.4 CARMEL BOARD OF ZONING CITY OF CARMEL APPEALS By: ames Ha 'ns Ja mes Brainard, Mayor By ,F Ear Plavchak Attes uE• By ity Attorney BY: B Al. Po Y: _s, Jay Do 1 MARTIN MARIETTA MATERIALS, E H MUELLER DEVELOPMENT LLC INC. BY: 6).d�l, Wilbur Tyner, 9r., Managing Member By: Roselyn Bar, General Counsel, Its: Martin Marietta Materials, Inc. 3A S BRAIN 's individual and personal capacity MICHAEL P. HOLLIBAUGH Directo 'f the Dep. t of Community Services 25 I/2176475.4 07/17/2008 13:01 MARTIN MARIETTA LEGAL 4 913178154823 NO.912 1702 CARMEL BOARD OF ZONING CITY OF CARMEL APPEALS By: By: James Hawkins James Brainard, Mayor By: Earlene Plavchak Attest: B Douglas Haney, City Attorney Madeleine Torres By: Alan Potasnik By: Jay Dorman MARTIN MARIETTA MATERIALS, E II MUELLER DEVELOPMENT LLC INC. 13y: Wilbur Tyner, Jr., Managing Member By: jY Roselyn Bar,'General Counsel, Its: Martin Marietta Materials, Inc. JAMES BRAINARD In his individual and personal capacity MICHAEL P. HOLLI.BAUGH Director of the Department of Community Services 4 25 1/2176475,4 TI u 17 -2SPIP 14:17 Q i Q 7A7 dclq 957.' P.02