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HomeMy WebLinkAboutCC-03-31-11-01 Martin Marietta Aggregates Settlement AgreementResolution CC- 03- 31 -11 -01 SPONSOR(s): Councilor Seidensticker A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, APPROVING THE SETTLEMENT AGREEMENT ENTERED INTO BY BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF CARMEL, INDIANA AND AMERICAN AGGREGATES CORPORATION D/B /A MARTIN MARIETTA AGGREGATES; AND WITH RESPECT TO ORDINANCE D- 1887 -08, AS AMENDED, APPROVAL OF THE PAYMENT OF PROCEEDS OF THE PROJECT BONDS TO COMPLETE THE ACQUISITION OF THE PROPERTY WHICH IS THE SUBJECT OF THE SETTLEMENT AGREEMENT AND WHICH IS THE SITE OF CARMEL'S WATER TREATMENT PLANT IMPROVEMENTS WHICH IS PROVIDED FOR IN THE PROJECT BONDS. WHEREAS, the Board of Public Works and Safety of the City of Carmel, Indiana, on Behalf of Carmel Utilities "City commenced an action to condemn a portion of certain property owned by American Aggregates at the southeast corner of 106 and Gray Road in Indianapolis, Indiana, which action is currently pending and styled 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 Martin Marietta Aggregates, Cause No. 29D01- 0610PL1055, in the superior Court of Hamilton County, Indiana (the "Lawsuit and is set for Jury Trial on April 4, 2011; and WHEREAS, in resolution of certain objections filed by American Aggregates in respect to the claim of the right and power to condemn the property by the City, the parties entered into that certain Agreement for Purchase and Sale (the "Purchase Agreement dated September 27, 2007, with respect to reducing the land which was the subject of the proposed taking from 30 acres to 20 acres, and providing for the transfer of title to the surface portion of such 20 acre parcel and the subsequent transfer of the subterranean portion, each of which is more particularly described therein (the "20 -Acre Parcel and WHEREAS, as part and parcel to the acquisition of the 20 -Acre Parcel, and in connection with the "closing" of the purchase and sale thereof, the parties entered into that certain Co- Existence Agreement dated September 27, 2007; and WHEREAS, the parties closed the purchase and sale of the 20 -Acre Parcel on May 9, 2009, and in connection therewith American Aggregates executed and delivered in favor of the City that certain Limited Warranty Deed recorded May 2009, as Instrument No. 20090027537 in the office of the Recorder of Hamilton County, Indiana, thereby conveying the 20 -Acre Parcel which is the subject of the said Purchase Agreement and the Lawsuit; and WHEREAS, the parties pursuant to the Purchase Agreement, contemplated resolving the matter of damages due and payable by the city to American Aggregates in connection with the acquisition of the 20 -Acre Parcel pursuant to the provisions of the Indiana Code 32 -24 -1 et seq. (the "Act either by agreement or pursuant to a trial by jury in the Lawsuit; and 1574281 EXECUTION COPY WHEREAS, the parties have reached an agreement as to the amount of damages and fair and just compensation due and owing by the City to American Aggregates in connection with the condemnation and acquisition of the 20 -Acre Parcel, together with other considerations, and are proposing to enter into the Settlement Agreement attached to this Resolution as Exhibit A. WHEREAS, Ordinance D- 1887 -08, as amended, was adopted by the Common Council of the City of Carmel, Indiana on July 7, 2008, considering construction of additions and improvements to the Water Works of the City of Carmel, Indiana and authorizing the issuance of Revenue Bonds and Bond Anticipation Notes in anticipation of the issuance of Revenue Bonds for such purpose; WHEREAS, in Exhibit B to Ordinance D- 1887 -08, as amended, certain conditions were included concerning the construction and acquisition of the distribution system improvements as part of the new projects provided for under the issuance of the Revenue Bonds; WHEREAS, part of the Settlement Agreement is to complete the condemnation and acquisition of the site for the improvements to the Water Works facilities provided for in the Revenue Bonds, and the payment out of the proceeds of said Revenue Bonds to American Aggregates as provided for in the Settlement Agreement. NOW, THEREFORE, BE IT RESOLVED AND AGREED by the Common Council of the City of Carmel, Indiana, as follows: 1. Approval of Settlement Agreement. That the Council hereby approves the terms and conditions contained in the Settlement Agreement with regard to the City's settling the Lawsuit and completing the acquisition of that certain property owned by American Aggregates at the Southeast corner of 106 Street and Gray Road in Indianapolis. That the Council with respect to Ordinance D- 1887-08, as amended, hereby authorizes the payment or reimbursement of all costs related to the Water Utility System capital improvements and acquisition of real estate as provided for in the Settlement Agreement out of the proceeds of the Revenue Bonds. 2. Approval of Acquisition of Property. That the Council again, in accordance with Ordinance D- 1887 -08, as amended, hereby approves the acquisition of the property from American Aggregates to complete the condemnation and acquisition of the site for the improvements to the Water Utility System provided for in the Revenue Bonds, including acquisition of a well site as provided for in the Settlement Agreement as part of the payment to American Aggregates, 1574281 2 67 PASSED by the Common Council of the City of Carmel, Indiana this 31 day of March 2011, by a vote of S ayes and j' nays. Presiding Off er W. Eric Sej,krensticker, Pres /pr `P r�Pvw/) Ronald E. Carter ATTEST: f (S/�� Diana L. Cordray, IAMC, Glerk- Treasurer ATTEST: Accetturo Diana L. Cordray, IAMC, Clerk)ireasurer 1574281 COMMON COUNCIL FOR THE CITY OF CARMEL empore 3 No .c40. Joseph Gr'•4iths Kevin Rider 71 Richars Sharp nyder EXECUTION COPY Presented by me to the MaY-Qr of the City of Carme�l,_Indiana, this day of 2011, at S= Y u O'clock, (4J M. Diana L. Cordray, IAMC, Clerk Treasurer Approved by me, the Mayor of the City of Carmel, Indiana, this3� day of 2011, at a 416. O'clock, 1 M. r James Brainard, Mayor Prepared by: Randolph L. Seger, Attorney At Law, BINGHAM McHALE LLP, 2700 Market Tower, 10 West Market Street, Indianapolis, IN 46204 1574281 EXHIBIT A SETTLEMENT AGREEMENT SETTLEMENT AGREEMENT EXECUTION COPY THIS SETTLEMENT AGREEMENT (this "Agreement made and entered into, „SA binding and effective as of this 31 day of March, 2011 (the "Effective Date by and between the BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF CARMEL, INDIANA, ON BEHALF OF CARMEL UTILITIES (hereinafter referred to as the "City and AMERICAN AGGREGATES CORPORATION d/b /a MARTIN MARIETTA AGGREGATES (hereinafter referred to as "American Aggregates WITNESSES THAT: WHEREAS, the City commenced an action to condemn a portion of certain property owned by American Aggregates at the southeast corner of 106 and Gray Road in Indianapolis, Indiana, which action is currently pending and styled 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 Martin Marietta Aggregates, Cause No. 29D01- 0610PL1055, in the Superior Court of Hamilton County, Indiana (the "Lawsuit and WHEREAS, in resolution of certain objections filed by American Aggregates in respect to the claim of the right and power to condemn the property by the City, the parties entered into that certain Agreement for Purchase and Sale (the "Purchase Agreement dated September 27, 2007, with respect to reducing the land which was the subject of the proposed taking from 30 acres to 20 acres, and providing for the transfer of title to the surface portion of such 20 acre parcel and the subsequent transfer of the subterranean portion, each of which is more particularly described therein (the "20 -Acre Parcel and WHEREAS, as part and parcel to the acquisition of the 20 -Acre Parcel, and in connection with the "closing" of the purchase and sale thereof, the parties entered into that certain Co- Existence Agreement dated September 27, 2007; and WHEREAS, the parties closed the purchase and sale of the 20 -Acre Parcel on May 9, 2009, and in connection therewith American Aggregates executed and delivered in favor of the City that certain Limited Warranty Deed recorded May 12, 2009, as Instrument No. 2009027537 in the office of the Recorder of Hamilton County, Indiana, thereby conveying the 20 -Acre Parcel which is the subject of the said Purchase Agreement and the Lawsuit; and WHEREAS, the parties, pursuant to the Purchase Agreement, contemplated resolving the matter of damages due and payable by the City to American Aggregates in connection with the acquisition of the 20 -Acre Parcel pursuant to the provisions of Indiana Code 32 -24 -1 et seq. (the "Act either by agreement or pursuant to a trial by jury in the Lawsuit; and WHEREAS, the parties have reached an agreement as to the amount of damages and fair and just compensation due and owing by the City to American Aggregates in connection with the condemnation and acquisition of the 20 -Acre Parcel, together with other considerations, and enter into this Agreement for purposes of documenting such settlement and agreement. NOW, THEREFORE, in consideration of the foregoing premises, 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 and American Aggregates hereby agree as follows: 1. The foregoing recitals are incorporated herein by reference as if fully restated herein. 2 2. The City hereby agrees to pay to American Aggregates by April 11, 2011, Two Million Five Hundred Thousand Dollars ($2,500,000.00), less the earnest money deposit of Six Hundred Forty Thousand Dollars ($640,000.00) made on or about September 27, 2007, pursuant to the terms of the Purchase Agreement, for a net amount due and payable on or before April 11, 2011, One Million Eight Hundred Sixty Thousand Dollars ($1,860,000.00) (the "Settlement Proceeds as damages and just compensation pursuant to the Act in consideration of its acquisition of the 20 -Acre Parcel pursuant to the Purchase Agreement and in consideration of the Well Site provisions set out in Paragraph 3 hereof and the water purchase provisions in Paragraph 4 hereof. 3. American Aggregates (or an affiliate thereof) owns certain unimproved real estate located in and around the 20 -Acre Parcel on which lands the City seeks to locate a well (the "Well Area Subject to receipt by American Aggregates of the payment described in paragraph 2, American Aggregates agrees to convey to the City a parcel of real estate with a radius of 100 feet of the actual well sited by the parties to allow the City to place a well in a mutually acceptable location (the "Well Site in close proximity to or adjacent to a public right -of -way on the Well Area that will meet all-regulatory requirements for a public water well and which will be economic for the City to develop for purposes of extracting water, and to allow the City an easement for an ingress and egress and for an underground pipe from which the City may access such Well Site for purposes of transporting water for the City's public water utility system. The exact location of the Well Site and the customary terms of the easement shall be subject to mutual agreement of the parties, but in all events located in a location on the Well Area and established in a manner so as to permit American Aggregates (or any affiliate thereof) to extract all minerals from the Well Area (except within a radius of 100 feet of the actual well sited by the parties). The parties shall decide on the location of the Well Site and easement by negotiating in good faith. The City shall locate the actual well in the center of the Well Site so that the City maintains the radius of 100 feet. The City shall be responsible for obtaining all necessary local, state and federal licenses and peinzits related thereto, and for otherwise complying with other requirements necessary or convenient for the establishment of any such well. Within forty -five (45) days after written agreement on the terms of the Well Site and easement referred to above, American Aggregates shall execute a deed and the parties shall execute an easement in forms reasonably required in order to convey the Well Site parcel and to establish the right of the City to access the same via an appropriate piping system. Such deed and easement shall contain terms and conditions consistent with those of the Co- Existence Agreement to the extent applicable. The Settlement Proceeds payable hereunder include compensation for the well site and the easement contemplated by this Paragraph 3. In addition, the easement to be granted pursuant to this Paragraph 3 shall provide that the City shall release, indemnify and defend American Aggregates with respect to any and all claims arising out of the installation, operation, maintenance and repair of the City facilities which are installed in the Well Site and in the easement for purposes of transporting water from the Well Site to the right -of -way. 4. As per Paragraph 5 of the Co- Existence Agreement, the parties shall negotiate in good faith for the purchase from American Aggregates by the City and sale by American Aggregates of an amount of excess storm water or ground water that American Aggregates would otherwise discharge into Blue Woods Creek as a part of its operation of its North Indy plant situated south of the 20 -Acre Parcel and north of East 96 Street. The determination of the existence of any excess water shall be made in American Aggregates sole and complete discretion. 4 5. The parties shall file in the Lawsuit a Stipulation of Dismissal With Prejudice in a mutually acceptable form within ten (10) business days following the receipt by American Aggregates of the Settlement Proceeds described in Paragraph 2 above. 6. It is specifically understood and agreed that the above stated Settlement Proceeds are being made and accepted in full accord and satisfaction of, and in compromise of, disputed alleged claims and /or causes of action described in the Lawsuit, and for the purpose of terminating such disputes and avoiding further litigation between any of the said parties. Nothing contained herein shall be deemed 'a waiver or limitation on the part of American Aggregates or any of its parents, subsidiaries or affiliates, successors or assigns "American Aggregates Affiliates of any theory or claim for compensation, if any, that may exist: a. for any property taken in the future by the City (or any other governmental agency) for purposes of extracting water from such property, and the American Aggregates Affiliates expressly reserve whatever right they may have, if any, to claim compensation for the value of such water in any future condemnation or eminent domain proceeding; or b. if the City (or any other governmental agency) changes regulations or the enforcement thereof applicable to the Well Site and such regulations or enforcement adversely impact operations by American Aggregates Affiliates. 7. The City and American Aggregates hereby specifically acknowledge and agree that they are entering into this Agreement upon the specific advice and with the consent of their attorneys of record in the Lawsuit, and not based upon representations or agreements other than those set forth herein and in those agreements between the parties that are referred to herein. 5 8. Each party hereto shall bear its own legal fees and costs incurred in connection with the matters referred to herein, and neither shall be responsible for any fee or cost incurred by the other. 9. This Agreement shall be governed in accordance with the laws of the State of Indiana. IN WITNESS WHEREOF, the City and American Aggregates, each by their duly authorized agents and officers, have caused this Agreement to be executed as of the day, month and year first above written. CITY OF CARMEL, INDIANA AMERICAN AGGREGATES CORP BY ITS BOARD OF PUBLIC WORKS d/b /a MARTIN MARIETTA AND SAFETY AGGREGATES es Brainard, Presiding Officer Date: Mary Date: Lori n, Member Date: 3/z t i ATTEST: fit urke, Member 3 -3) J) Diana L. Cordray, IAMC Clerk -T surer 6 By: Its: Via flr5dLif 1W Sc4 (Printed Name Title) Approved as to Form: ICE MILL LLP By: Approved as to Form; BING By: Attorney for Defendant LLP L. Sege Attorney for Plaintiff STATE OF, INDIANA. COUNTY OF My Commission Expires: «3o SS: Before me, a Notary Public in and for said County and State, personally appeared James Brainard, Mary Ann Burke, and Lori Watson, by me known to be the Members of the City of Carmel Board of Public Works and Safety, and Diana L. Cordray, 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 7 NOTARY PUBLIC Printed Naive My County of Residence: Date: day of 044'61 2011.