American Ag(Martin Marietta/Purchasel
r'"
EXECUTION COPY
AGREEMENT FOR PURCHASE AND SALE
""J f-'- tHJ s~~I~.FM ENT FOR PURCHAS E. AND SALE is made and ent.cred into as. of tbe
CA~ day of. ~Q7 (the "Effectiv'e Datc"), by .and between American Aggregates
Corporation, a Delawan> corporation ("Seller"), and the Board of Pubhc Works and Safety of the
City of Cannel, Indiana, onbehalfof Cannel Utilities ("Purchaser").
WITNESSETH:
WHER.EAS, on October 24, 2006, Plirehaser filed a Complaint for Aplitopriation of Real
Property in Superior COll1i Jin Hamilton County, Indiana, seeking to acquire via eminent dotmiin
certain real. estate owned by Seller; and
WHEREAS, in Jieuof condemnation, but under the threat thereof; Purchaser wishes to
purchase and Seller wishes to sell the Property (as hereinafter detJned) upon the tennsand
conditions hereinafter set forth.
NOW, THEREFORE, in consideration .of One Doil~r ($1.00), .the.EamestMoney, the
mutual covenants and..agreements contained herein and othcrgood and. valuable 'consideration,
thc receipt and suffi"ciency of which are hewby acknowledged, 'the parties here.to, iliteiiding to be
legally bound, do hereby agree as.follows:
SECTION I
Definitions'mid Exhibits
] .1 Definitions. For-purposes ofthis Agreement, each of the lallowing tel111S, when
used herein with an initial capitalletter,.shall have the meaning Hscribe\! 10 itasfoilows:
" .
Agreement This ,A;greement for Purchase and Sak
Closing. The closing-and consummationo'fthe purchase and .sale of the. Property
pursuant hereto.
Closing Date. l'he date upon which Closiilg'occilis,. which will be on or before
twelve (12) rhOllths frOlwtheclate of this Agreement
Coexistence Agreement.. The.. Coexistence Agreen;enl ma?e by and. between
Purehaseral1d Selleq;iltei'ecl into on even date hcre\vith and in tlie form attached hereto
as Exhibit F.
Condemnation. The eminent c!omain proceeclil")gfiled by the Purchaser on
October 24,2006, assighed C~useNo. 29001-06 i 0_PLlOS5, and pending before
Superior Court I in Hamilton County" Indi~na.
Conti denti allnt<:lITllatiQll.
ConlidcntiaIity Agreement.
Any confldentialinfonnation covered by the
Confidentiality Agreement. The Confidentiality and Non-Diselosure Af,'feement
entered into by and between Seller and Purchaser on evcn date herewith.
Dced: Deeds. The Special WatTanty Deed to be executed by Seller i.n the fann
attached hereto as Exhibit B-1 ("Parcel I Deed") (with respect to Parcel I, as defined
below), which shall be delivered on the Closing Date, and the Quitclaim Deed to be
executed by Seller ih the fonn attached hereto as Exhibit B-2 (with respect to Parcel II, as
defined below ("Parcel II Deed")), which shall be delivered to Purchaser in accordance
with the tenns and conditions of this Agreement.
Eamest Money. Six Hundred and Forty Thousand and 0011 OOllis Dollars
($640,000.00).
Seller Easement. Easement for purposes of ingress and egress in favor of Seller
in respect of Parcel II for purposes of vehicular and pedestrian traffic, as well as
conveyance and transportation of minerals between adjacent properties owned and mined
by Seller now or at any time in the future, such easement to be in the fonn attached
hereto as Exhibit D and incorporated herein by this reference. Scller Easement shall not
unreasonably interfere with Purchaser's use of Parcel J.
Purchaser Easement. Easement for purposes of allowing storm water runoff from
Parcel I to discharge through either storm sewers or an open channel at the election of
Seller to Blue Woods Creek, in either its existing location or a new location SilOUld Seller
chose to reroutc Blue Woods Creek, such casement being depicted on Exhibit E which
exhibit is attached hereto and incorporated herein by this reference.
Effectivc Date. The date upon which this Agreement shall be deemed effective,
which shall be the date first above written.
Endorsements. The special endorsements desired by Purchaser to be attached to
the Title Policy, to be issued at Purchaser's sole cost and expense, which may include
(without limitation): Zoning 3.1, Access, Comprehensive, Survey, Tax Parcel and
Contiguity.
Inspection Period: The time period for Purchaser's inspection of the Property
identified in the Coexistence Agreement, ineluding any time for resolution of any
Structurally Required Amendments (as that term is defined in the Coexistence
Agreement).
Permitted Title Exceptions. (i) The lien of unpaid taxes not yet due and payable;
(ii) those matters disclosed on the Title Commitment or Survey to which Purchaser does
not object, or which objection is waived by Purchaser, pursuant to Section 5 of this
Agreement; and (iii) all matters of record in the office of the Recorder of Hamilton
County, Indiana.
Property. All of Seller's right, title and interest in and to a parcel of land located
at the southeast comer of Gray Road and 106th Street in the City of Cannel, Clay
Township, Hamilton County, Indiana, such parcel consisting of approximately twenty
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(20) acres of an approximately seventy-five (75) acre tract owned by Seller and identified
as a portion of Tax Parcel No. 1714090000001000, which parcel is more fully illustrated
on Exhibit A attached hereto and incorporated herein by this reference, along with any
and all privileges, rights, easements, hereditaments and appurtenances thereto belonging;
provided, however, that the Property shall not include the north-south roadway situated
along the east side of the Property.
Parcel I. That portion of the Property (including air rights) located above an
elevation of six hundred eleven (61 I) feet above mean sea Icvel (the" Elevation"), as
determined in accordance with infonnation provided by the United States Geological
Survey ("USGS") and to be shown on the Survey.
Parcel I\. That portion of the Propelty (consisting entirely of sub-surface rights)
located below the Elevation, as detennined in accordance with infom1ation provided by
the USGS and to be shown on the Survey, along with all structures, improvements,
systems, facilities, fixtures, machinery and equipment located below the Elevation
(including all replacements or additions thereto between the Effective Date and the
recording date of the Deed for Parcell1), it being expressly understood that Seller shall
retain Seller's interest in Parcel II following the Closing, with such interest to be
transferred to Purchaser subsequent to Closing in accordance with the terms and
conditions of this Agreement.
Purchase Pricc. Such sum as may be agreed upon between Pm.chaser and Scller
on or before 60 days after the Closing Date, or failing agreement by the parties, as
cstablished pursuant to the procedures providcd in Indiana Code S 32-24-1, together with
intercst on any amount determined by sueh procedurcs in exccss of the Earnest Moncy at
the statutory rate of 8% per annum from and after thc Datc of the Closing. The partics
agrce that this Agrecmcnt rcpresents a finn commitment to purchase and sell the
Property, and waivc any potcntial right to claim that the Agreement is an illusory
contract.
Survey. Thc as-built survey of the Propelty in a fonn reasonably acccptablc to
Purchaser, which shall (a) be completed in accordancc with the minimum standard detail
requirements for ALTA/ACSM Indiana Land Title Surveys and certified to Seller,
Purchaser, Purchaser's lender and the Titlc Company by such surveyor; (b) havc one
perimeter dcscription of the Propclty; (c) include separate legal descriptions for Parcel I
and Parcel II; (d) show all easements, right-ot~way, setback lines, encroachments and
other matters affecting the use or development of the Property; (c) show the acreage of
the Property; and (f) confim1 the location of any portion of the Propeny that lies within a
flood plain or wetlands area. The Deed to be delivered by Seller to Purchaser at the
Closing shall contain the legal description of Parcel I as shown on the Survey, and the
Deed to be held in escrow by the Title Company following Closing shall contain the legal
description of Parcel II as shown on the survey:
Title Commitment. A commitment for an ALTA Form B (2006) Owner's Title
Insurance Policy for the Property, issued by the Title Insurer (or a local agent reasonabl y
acceptable to Tille Insurer) in the full amount of the Purchase Price, covering title to the
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Propeliy on or after the Effective Date, showing Seller as owner of the Property, and
providing for full extended coverage ovcr all general title exceptions contained in such
policies.
Title Insurer. Chicago Title Insurancc Company.
Title Policy. An owner's policy of title insurance effective as of the Closing Date
in the form of the Title Commitment.
1.2 Exhibits. Attached hereto and fonning an integral pm1 of this Agreement are the
following exhibits, all of which are incorporated into this Agreement as fully as if the contents
thereof were set out in full herein at each point of reference thereto:
Exhibit A - Legal Description of the PropeI1y (subject to tinal Survey)
Exhibit B-1 - Fonn of Deed for Parcell
Exhibit B-2 - Foml of Deed for Parcelll
Exhibit C - Certificate of Non-Foreign Status
Exhibit D - Seller Easement (may be inclusive in Deed for Parcel 11)
Exhibit E - Purchaser Easement (may be inclusive in Deed for Parcell)
Exhibit F - Coexistence Agreement
Schedule 8.1.1 - Excepted Litigation
SECTION 2
Purchase and Sale Agreement
For the consideration and on the tenns set fOlih in this Agreement, Seller agrees to sell
and Purchaser agrees to purchase the PropeI1y.
SECTION 3
Earnest Money
3.1 Em.nest Money. Within three (3) business days afier the Effective Date,
Purchaser shall deposit with Seller the Earnest Money. The Earnest Money shall credited against
the Purchase Price at Closing and may otherwise be held, distributed or used by Seller as it
deems appropriate on or prior to the final paymcnt of the Purchase Price by Purchaser to Seller.
However, and notwithstanding anything herein contained to the contrary, in the event that
Purchaser shall abandon the purchasc and sale of the Propel1y, Seller shall be obligated to
promptly return the Earnest Money to Purchaser, less any out-ot~pocket expcnscs incurred by
Sellcr to which it is entitled to retain pursuant to Indiana Code 32-24-1-1 et seq. (thc
"Condemnation Act"). Additionally, if the Purchase Price of thc PropeI1y is determined to be
less than the Earncst Money, Seller shall be obligated to promptly retum the difference between
the Eamest Money and the Purchase Price of the Property to Purchaser.
3.2 Disbursement. The Earnest Money shall be credited at Closing to Seller as a
pOliion of the Purchase Price, unless otherwise disbursed pursuant to this Agreement.
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SECTION 4
Purchase Price
4. I Purchase Price. The Purchase Price, as adjusted by the prorations provided in
Section 4.2 hereof and as reduced by thc Earncst Money, shall be paid by Purchaser to SelicI' at
the Closing in United States dollars, by Federal Reserve System wire transfer or other
immediately available funds acceptable to Seller as set forth in Section II.
4.1.1 Purchase Price. .If at the time of the Closing, thc Parties are unable to
agree upon a Purchase Price, but Purchaser is otherwise notitled and prepared to close,
Purchaser may take possession of Parcel I and the Parties shall move the Court to
determine the Purchase Price in the manner provided for In Indiana Code 32-24- I.
4.2 Tax Prorations. All real estate taxes and special assessments assessed against the
Prope11y for years prior to the year of the Closing, and all penalties and intercst thereon (if any),
shall be paid by Seller. All real estate taxes and special assessments assessed against Parcel I for
the year of the Closing shall be prorated between Seller and Purehaser as of the Closing Date on
the basis of the exact number of days each will own the Real Estate during the year of the
Closing. If the amount of such real estate taxes is not known at the Closing, closing adjustments
will be made on the basis of the most recent tax rate and assessed valuation for the Real Estate.
Seller and Purchaser acknowledge that Parcel 1 and Parcel I! have previously been taxed as a
single tax parcel and that the transaction contcmplated herein will result in reassessment of the
Property and separation of Parcell and Parcel If for property tax purposes. Seller and Purchaser
further acknowledgc that ad valorem real estate taxes (state, county and municipal) and personal
propcrty taxcs (collectively, "Taxes") and special assessments shall be allocated between Parcel I
and Parcel If by the Hamilton County Assessor in accordance with IC 6-1.1-4- I 2.4 (or other
applicable statutes) following Closing. Seller fUl1her acknowledges that Parcel I will be exempt
from Taxes following Closing. Any taxes or assessments in respect of the Parcel I not assumed
by Purchaser, but which are not due and payable at or Pl;or to the Closing, shall be allowed to
Purchaser as a crcdit against the Purchase Price at thc Closing, and Seller shall havc no further
liability for such taxes or assessments. The provisions of this Section shall survive the Closing.
4.3 Utilities. Seller shall pay all utility charges and other operating expenses
attributable to the Property prior the Closing Date and Purchaser shall pay all utility charges and
other operating expenses attributable to its activities on Parcel I aftcr the Closing Date, with
Seller to continue to pay all utility charges and other operating expenses attributable to its
activities on Parcell! after the Closing Date.
4.4 Closing Costs. Purchaser shall pay the costs of the Survey, all escrow or closing
agent charges, all costs of Purchaser's Duc Diligence, all costs incurred in connection with
Purchaser's financing (including the premium for any lender's policy of title insurance and any
endorsements to the owner's policy or lender's poliey) and any other costs customarily paid by
the Purchaser pursuant to local practice. Purchaser shall also pay the premium of the Title
Insurer for the Owner's Title Policy, all recording and filing charges in connection with the
Deeds and all transfer taxes. Each party shall pay its own attorneys, except as otherwise
expressly provided herein.
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SECTION 5
Title and Survev Review
Seller shall convey good and marketable fee simple title to the Propelty to Purchaser in
the 1'01111 of the Deeds, subject only to (i) the Pel111ittcd Title Exceptions, (ii) and the Seller
Easement in favor of Seller for purposes of ingress and egress across Parcel JJ between other
adjacent real estate owned by Seller or any of its affiliated companies alld/or subsidiaries in the
fonn attached hcreto as Exhibit D and incorporated hercin by this reference. Purchaser shall
obtain the Title Commitment at its earliest convenicnce, and shall review the same together with
the Surveys to dctennine whether it is satisfied with the status of title to the Property. Purchaser
shall have until October 30, 2007, within which to advance any objections to the status of title
retlected in the Title Commitment. Seller shall, within ten (10) days of receipt of notice from
Purchaser of any such objections, advise Purchaser whether it will remedy or cure such
objections(s), if any. Purchaser shall eithcr (i) accept Seller's response and proceed to closing as
otherwise provided herein, or (ii) cancel and terminate this Agreement, whereupon the Earnest
Money shall be refunded to Purchaser, and thereafter both parties shall be relieved of all
obligations hereunder, except as expressly set forth herein. If Purchaser fails to timely provide
notice of any such objections, all matters retleeted on such Surveys and the Title Commitment
shall be deemed "Permitted Title Exceptions". Notwithstanding anything to the contrary
contained herein, Seller shall be obligated to cure or otherwise remove as a title exception no
later than the Closing Date (for Parcel I) and the deed release date (for Parcel II) only the
following (collectively, "Unpermittcd Title Exceptions"): (i) all mOltgages, security deeds or
othcr security instruments cr~ated by, through or under Seller encumbering the Property, (ii) all
past due ad valorem taxes and assessments, owners asso'ciation, roadway or other casement fees,
dues or assessments of any kind, whether or not of record, which constitute, or may constitutc, a'
lien against the Property, and (iii) any jud!,'I11ents, mechanic's lien or other lien or monetary
encumbrance affecting the Propelty arising dlu;ng the period of Seller's ownership of the
Propelty created by, through or under Seller (other than any such lien or encumbrance arising
under Purchaser or its agents or reprcsentatives). For purposes of clm;ty, under no circumstances
shall Seller be obligated to cure any title obligations made by Purchaser other than as set forth in
items (i), (ii) and (iii) of the immediately preceding sentence.
SECTION 6
Purchaser's Inspection
6.1 Ins\Jection. Purchaser and Selleracknowlcdge that Purchaser shall be permitted,
solely pursuant to the Coexistcnee Agrecmcnt, to inspcct the Property.
6.2 Environmental Assessment. Purchascr may conduct such environmcntal site
assessmcnts and testing for the PropClty, at Purchaser's sole cost and expense, as are permitted
pursuant to and in accordance with the telms and conditions of the Coexistence Agreement.
6.3 FOl1l1al Ins\Jection Pcriod. Purchaser's obligation to e10se under this Agreement is
subject to and conditioned upon Purchaser's investigation and study of and satisfaction with the
Property as contemplated in this Section 6. Purchaser shall have until the end of the Inspection
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Period to completc such investigations and studies with respect to the Property as Purchaser
deems appropriate, and to deliver written notice to Seller terminating this Agreement if
Purchaser objects to any condition of the Property. If Purchaser fails to timely deliver a notice to
Seller temlinating this Agreement on or before the end of the Inspection Period, then Purchaser's
rights under this Section 6 shall be conclusively deemed waived by Purchaser.
SECTION 7
Intentionally Omitted
SECTION 8
Representations and Warranties
8.1 Representations. As of the Effective Date and the Closing Date, Seller hcreby
warrants and rcpresents to Purchaser that, except as may be disclosed in the due diligence
documents obtained by Purchaser, the following are true, accurate and complete:
8.1.1 No Litigation. Except as set forth on Schedule 8.1.1, Sellcr is without
knowledge or has received.no notice, of any actual or pending litigation or proceeding by
any organization, person, individual or governmental agency against Seller with respect
to or against the Propcrty.
8.1.2 Authonty. Seller is a duly organizcd and validly fonned corporation
under the laws of the State of Delaware is qualified to do business in the Statc of Indiana,
is not subject to any involuntary procceding for dissolution or liquidation thcreof, and has
obtained all requisite authorizations to enter into this Agrecmcnt with Purchaser and to
consummate and close the purchase and sale of the Property pursuant hereto. Seller's
execution, delivery and perfomlance of its obligations under this Agreement will not
conflict with or result in a breach of, or constitute a default under, any of thc provisions
of Seller's organizational documents or of any contract, instrument, law, govcmmental
rule, rcgulation, judgment, decrec or order to which SelicI' is a pany or by which Seller is
bound.
8.1.3 No Rights to Purchasc. Seller is the sole owner of the Propel1y and no
person, other than Purchaser under this Agreement, has any right, agreement,
commitment, option, right of first refilsal or any other agreement, whether oral or writtcn,
with respcctto thc purchase, assignment or transfer of all or any portion of the Property.
No pat1y other than Seller has or elaims any unrecorded or undisclosed legal or equitable
interest in the Property.
8.104 Non-Foreign Status. Seller is not a "foreign person" as that teml is
defined in the Intemal Revenue Code of 1986, as amended and the regulations
promulgated pursuant thereto.
8.2 Miscellaneous. Whenever a representation and walTanty made by Seller in this
Section 8 is limited to Seller's knowledge, the phrase "Seller's knowledge" or any derivation
thereof shall mean the actual and Cltn'ent knowledge of John J. Tiberi, the President - Mideast
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Division of Seller, on the Effective Date, without further inquiry or investigation. It shall be a
condition of Closing that the representations and wananties contained in this Section 8 are tme
and correct at Closing and Seller shall be deemed to have reaffinned these representations and
waJTanties at Closing. The representations and warranties contained in this Section 8 shall
survive Closing for a period of one hundred eighty (180) days after the Closing Date.
SECTION 9
Operations Pending ClosinJ!:: Post-Closing Operations and Activities
9.1 Pre-Closing Operations. Seller, at its expense, shall use reasonable efforts to
maintain the Propel1y until the Closing Date or until termination of this Agreement, whichever is
earlier, substantially in its present condition, insured damage by fire or other casualty and
condemnation cxcepted, provided, however, that Seller shall be entitled to continue to utilize the
Property for purposes of its mining activities until the date of Closing with respect to Parcell and
otherwise until the exhaustion of all minerals in respect of Parcell!.
9.2 Post-Closing Activities.
9.2.1 Coexistence Agreement. Contemporaneously with the execution of this
Agreement, Purchaser and Seller shall execute a Coexistence Agreement in the form
attached hereto as Exhibit F.
9.2.2 Purchaser's Use of thc Propcrtv. Prior to the twenty-fIfth (25Ih)
anniversary of the Closing Date, Purchaser shall use thc Propcrty solely for the purposes
described in the Coexistcnce Agreement. After the twenty-fifth (25th) anniversary of the
Closing Date, Purchaser shall not be limited as to its use of the Propelty. This covenant
shall be ineluded within the Deed for Pm'eell.
9.2.3 Purchaser's Condemnation of Parcel II. Prior to the twenty-fifth (25\h)
anniversary of the Closing Date, Purchaser shall not initiate emincnt domain proceedings
to condemn PaJ'Cel II.
9.2.4 Transfer of Parcel II. Seller shall within nine (9) months after
completing all excavation and mining related operations on Parcel II, issue the Parcel II
Deed to Purchaser, subject to the Seller Easement.
9.3 Telmination. If Purchaser timely delivers a notice to Seller terminating this
Agreement, this Agreement shall terminate immediately, the Earnest Money shall be refunded to
Purchaser by Seller (less Seller's costs that are recoverable under the Condemnation Act), and the
parties shall have no further rights or obligations hereunder, except for those that expressly
survive any tenninatlon.
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SECTION 10
Conditions to Closing
10.1 Purchaser Conditions. Purchaser's obligation to proceed to Closing under this
Agreement is subject to the following conditions precedent:
(a) Seller shall have perfonned and satisfied each and all of Seller's obligations under
this Agreement;
(b) Each and all of Seller's representations and warranties set fOlih in this Agreement
shall be true and conect at the Effective Date and at the Closing Date;
(c) There shall be no material adverse change between the end of the Inspection
Period and the Closing Date in the physical condition of the Property;
(d) Title Insurer shall issue at Closing at its n0l111al rates (or lower ratcs negotiated by
Seller) the Title Policy insuring Purchaser subjeet only to the Pel111itted Title Exeeptions;
(e) That Purchaser is able to detennine to its satisfaction each of the following
matters prior to Closing:
(i) That Purchaser detennincd prior to the end of the Inspection Period, to its
sole satisfaction pursuant to such inspection, testing and related activities on the Propeliy,
(solely as allowed under the Coexistence Agreement) that construction of improvements
upon the Propeliy to permit the Proposed Use (and the cost of operations upon the
Property in connection with the Proposed Use) is viable and economically feasible.
(ii) That Purchaser has obtained lI'om Title Company: (a) the Title
commitment, subject only to Pem1itted Title Exceptions; and (b) endorsements to the
final owner's and mortgagee's title insurance policies which Purchaser determines are
necessary or desirable, ineluding (without limitation) access, zoning, contiguity, survey,
comprehensive, and utilities and facilities endorsemcnts.
(iii) That Seller has legal authority to sell the Property, and that Seller has
complied with, fulfilled and perfonned in all respects each and every covenant, tenn and
condition to be complied with, fulfilled and perfonncd by Seller hereunder.
(iv) That Purchaser has received all eonscnts and approvals necessary for
consummation of the transactions contemplated herein, if such consents or approvals are
required.
In the event any of the foregoing conditions are not satisfied prior to or on the Closing
Date, subject to Section 8.2 hereof, Purchaser may tenninate this Agreement by written notice to
Seller (such termination to be deemed a written rejection by Seller of Purchaser's Unifonn
Property Acquisition Offer), and thereafler shall have no obligation to proceed with the Closing,
the Eamest Money shall be retumed and paid to Purchaser, and neither pm1y shall have any
further obligation hereunder except those which expressly survive the tem1ination of this
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Agreement or otherwise are provided under and pursuant to the tenns of the Condemnation Act.
However, to the extent Purchaser terminates this Agreement because Section 10.1 (e)(i) and/or
10.1(e)(iv) are not satisfied prior to or on the Closing Date, Purchaser's ability to proceed with
the Condemnation of the Property shall be limited pursuant to the provisions of Section 4 of the
Coexistence Agreement. Notwithstanding the foregoing, nothing contained herein shall waive or
diminish any right or remedy Purchaser or Seller may have for the other's default or breach .of
this Agreement, subject to the tenns and conditions of the Confidentiality Agreemcnt and the
Coexistence Agreement.
10.2 Seller Conditions. Seller's obligation to proceed to Closing under this Agreement
is subject to the following conditions precedent:
(a) Purchaser shall have performed and satisfied each and all of Purchaser's
obligations under this Agreement and thc Coexistence Agreement; and
(b) Each and all of Purchaser's representations and warranties set forth 111 this
Agreement shall be true and correct at the Effective. Date and at thc Closing Date.
SECTION II
Closing
11.1 Time and Place. Provided that all of the conditions set forth in this Agreemcnt are
theretofore fully satisfied or pcrformed, the Closing shall be held at the offices of the Title
Insurer, on the Closing Date, unlcss the Closing Date is postponed pursuant to the cxpress tenns
of this Agrecment or as otherwise agreed by SelicI' and Purchascr in writing.
11.2 Seller Delivcries. For and in consideration of, and as a condition precedent to
Purchaser's delivery to Seller of thc Purchase Price, Seller shall obtain and deliver to the Title
Insurer for delivery to Purchaser at the Closing thc following documents (all of which shall be
duly executed and in recordable form as applicable):
11.2.1 The Parcel I Deed, subject only to the Pcnnitted Title Exceptions.
11.2.2 A Non-Foreign Certificate in the tann attached as Exhibit C.
11.2.3 Two counterp'1I1s of a Closing Statement in fonn and substance mutually
acceptable to Purchaser and Seller.
11.2.4 Such further instructions, documents and infonnation, including, but not
limitcd to a Fonn 1099, as Purchaser or Title Insurer may reasonably request as necessary
to consummate the purchase and sale contemplated by this Agreement.
11.2.5 A standard sales disclosure form
Purchaser shall be responsible for any fces related to the recordation of the deeds and
related documents described above from Seller to Purchaser in respect of the conveyancc of the
Propcl1y.
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11.3 Purchaser Deliveries. Purchaser shall deliver to Seller at closing the following:
11.3.1 The Purchase Price in immediately available funds, subject to the
prorations, credits and adjustments provided for in this Agreement.
11.3.2 Counterpart originals duly executed by Purchaser of the Closing
Statement.
11.3.3 Such other documents or instrumcnts reasonably necessary to
consummate the Closing.
SECTION 12
Default and Remedies
\2.1 Seller's DeFault.
(a) Notwithstanding any provIsIOn otherwise provided in this Agreement to the
contrary, upon Seller's default or breach of any ten11S or conditions hereunder prior to Closing
and Seller's failure to cure such default or breach during applicable grace or cure periods (which
failure shall be deemed a written rejection of Purchaser's Uniform Acquisition Offer), Purchaser
may cither: (i) tel111inate its obligation to Further pcrfonn under this Agreement by delivering
notice thereof to Seller and upon such tClmination obtain a full refund of the Eamest Money, and
then procecd to exercise any and all rights the Purchaser may have under the Condemnation Act,
includi!1g Purchaser's rights to proceed to exercise any and all of its rights as though Seller had
rejected Purchaser's Unifonn Property Acquisition OFfer; or (ii) fi.lrcc Sellcr to consummatc the
transaction contcmplated hercin by commencing legal action for specific perfol111ance of Seller's
obligations under this Agreement, which may include, without limitation, filing of a lis pcndens
against thc Propel1y.
(b) As a condition preccdent to the effective exercise of Purchaser's option to
tenninate its obligation to further pcrfonn hereunder or take other action pursuant to this Section
12, Purchaser shall give Seller notice stating with particularity the alleged debult or breach of
Seller and the action required to be taken by Seller to cure such default or breach. Seller shall
have a pcriod of ten (10) business days following receipt of such notice to cure the alleged
default or breach to Purchaser's reasonable satisFaction, and to thereby cure the dcFault or breach.
12.2 Purchascr's Default.
(a) Notwithstanding any provision in this Agreement to the contrary, if the sale and
purchase of the Propcrty contemplated by this Agreement is not consummated because of the
Purchaser's uncured breach or default of any tCl111S or conditions hereunder, Seller as its sole and
exclusive remedy may tet111inate this Agrecment by delivering notice thereof to Purchaser and
Seller shall be entitled to recover reasonable costs, as provided under the Condemnation Act
and/or Indiana Code S 8-23-17-27 (Indiana Relocation Assistance Act), as if Purchaser
abandoned the Condcmnation.
11
(b) As a condi tion precedent to the effective exercise of Seller's option to temlinate
this Agreement or take other action pursuant to this Section 12, Seller shall give Purchaser notice
stating with particularity the alleged detilUlt or breach of Purchaser and the action required to be
taken by Purchaser to cure such breach or default. Purchaser shall have a period of ten (10)
business days following receipt of such notice to cure the alleged default or breach to Seller's
reasonable satisfaction, and to thereby cure the default or breach.
SECTION 13
Condemnation or Destruction
] 3. I Condemnation. Seller hereby represents and wanants that Seller has no
knowledge of any action or proceeding pending, institutcd or threatened for condemnation or
other taking of all or any part of any Property by friendly acquisition or statutory proceeding
other than any proceedings pending or threatened by Purchaser. Seller agrees to give Purchaser
immediate written notice of such actions or proceedings that may result in the taking of all or a
part of any Propel1y, If, prior to the Closing, all or any part of any Property is subject to a bona
fide threat of condemnation by a body having the power of eminent domain, or is taken by
eminent domain or condemnation, this Agreement shall remain in full force and effect and
Purchaser shall receive the final settlement of the proceeds to be paid for such taking.
13.2 Damage or Destmction. If, prior to the Closing, all or any material part of any of
Property is damaged or destroyed by any causc, Sellcr agrees to give Purchaser immediate
written notice of such occunence and the nature and extcnt of such damage and destruction, this
Agrecment shall remain in full forcc and effcct and Purchaser shall receive the final settlement of
the insurance procceds to be paid for such damage, if any.
13.3 Awards and Proceeds. At the Closing, Seller shall assign, transfer and sct over to
Purchaser all of Seller's right, titlc and interest in and to any awards, payments or insurance
procccds for the actual value of the property lost or dcstroyed, up to but not in excess of the
Purchase Price, that have bcen or may thereafter bc made for any such damage or destruction, to
the extent such awards, payments or proceeds shall not have theretofore been used for restoration
of the Property pursuant to a plan of restoration approved in writing by Purchaser.
SECTION 14
Assignment
Upon an assignment of either party's interest in all or any portion of the Property, the
assignee or nominee shall have and be subject to all of the rights, benefits, duties and obligations
of that party hereunder, and thereupon that party shall be released ti'01n any liability or obligation
of that party hereunder.
12
SECTION 15
Purchaser's Representation and Warranty
Purchaser does hereby reprcsent and walTant to SelicI' as of the Effective Datc and the
Closing Date that it has all requisitc authorizations to entcr into and perfonn its obligations under
this Agreement; and that the paliies exccuting this Agreement on behalf of Purchaser are duly
authorized to so do. If Purchaser does not temlinate this Agreement on or bcforc the Inspection
Date, Purchaser shall be dccmed to have represented and walTanted to Sellcr as of the Inspection
Date and the Closing Date that Purchaser has all requisite authorization .to consummate the
transactions contemplated hereby.
SECTION 16
Broker and Broker's Commission
Purchaser and Seller each walTant and represent to the other that such party has not
employed a real estate broker or agent in connection with the transaction contemplated hereby.
Each party agrees to indemnify and hold the other harmless from any loss or cost suffered or
incuned by it as a result of the other's representation herein being untrue. This Section 16 shall
expressly survive the Closing hereunder.
SECTION 17
Notices
Wherever any notice or other communication is required or pennilted hereunder, such
notice or other communication shall bc in writing and shall be delivcred by hand, by nationally-
recognized overnight cxpress delivery service, by U. S. registered or certified mail, return receipt
requested, postage prepaid, or by facsimile with prompt telephone COnfiI111ation to the addresses
set out below or at such other addresses as are specified by writtcn noticc delivered in
accordance herewith:
SELLER:
American Aggregates Corporation
Attn: Highest Corporate Officer and Gcncral Counsel
2710 WyelitTRoad
Raleigh, North Carolina 27607
With a copy to:
Mmiin Marietta Materials, Inc.
Attn: John J. Tiberi. President - Mideast Division
1980 East 116'h Stre'et, Suite 200
Cannel, Indiana 46032
With a copy to:
Martin Marietta Materials, Inc.
P.O. Box 30013
Raleigh, North Carolina 27622
Attn: Helen I'Jaynes, Associatc General Counsel
13
And a copy to:
PURCHASER:
With a copy to:
Ice Miller LLP
One American Square, Suitc 3100
Indianapolis, Indiana 46282
Attn: ZefT A. Weiss
Cannel Utilities
Attn: John Duffy, Director
760 3rd A vcnue, Suite 110
Carmel, Indiana 46032
Bingham McHale LLP
2700 Market Tower
lOWest Markct Street
Indianapolis, Indiana 46204
Attn: Randolph Seger, Esq.
Such notices shall be deemed received (a) on the date of delivery, if delivered by hand or
ovell1ight express delivery service; or (b) on the date indicated on the retull1 reccipt ifmailed.
SECTION 18
Miscellaneous
18.1 Govcrning Law: Headings; Rules of Construction. This Agreement shall be
govell1ed by and constl1Jcd in accordance with thc internal laws of the State in which the
Property is located, without rcferencc to the contlicts of laws or choice of law provisions thereof.
The titles of sections and subsections herein have bcen inserted as a matter of convenience of
reference only and shall not control or affect the meaning 01' construction of any of the terms or
provisions hercin. All references herein to the singular shall include the plural, and vice versa.
The parties agrce that this Agreemcnt is the result of ncgotiation by the parties, each of whom
was represented by counsel, and thus, this Agreement shall not be construed against the maker
thereof.
18.2 No Waiver. Neither the tililure of either party to exercise any power given such
paliy hereunder or to insist upon strict compliance by the other party with its obligations
hereunder. nor any custom or practice of the pat1ies at variance with the te1l11S hereof shall
constitute a waiver of either pm1y's right to demand exact compliance with the tenns hereof.
18.3 Entire Agreement. This Agreement contains the entire agreement of the parties
hereto with respect to purchase and sale of the Propel1y, and no representations, inducements,
promises or agreements, oral or otherwise, between the parties not embodied herein or
incorporated herein by reference shall be of any force or effect.
18.4 Binding Effect. This Agreement shall be binding upon and shall inure to the
benetit of the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns (subject to Section 14 above).
14
18.5 Amendments. No amendment to this Agreement shall be binding on any of the
parties hereto unless such amendment is in writing and is exccuted by the party against whom
enforcement of such amendmcnt is sought.
18.6 Date For Perfonnance. If the time period by which any right, option or election
providcd under this Agrecment must be exercised, or by which any act required hereunder must
be perfonned, or by which the Closing must be held, expires on a Sarurday, Sunday or legal or
bank holiday, then such time period shall be automatically extended through the close of
business on the next regularly scheduled business day.
18.7 Publicity. Between the Effective Date and the Closing, Seller and Purchaser shall
discuss and coordinate with respect to any public filing or announcement concerning the
purchase and sale as contemplated hereunder. This Agreement shall in all circumstances be
subject to the tenns and conditions of the Confidentiality Agreement.
18.8 Countcrp31is. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which, when taken together, shall
constitute but one and thc same instmment.
18.9 Timc of the Essence. Time shall be of the essence of this Agreement and each
and every term and condition hereof.
I 8.l 0 Severability. This Agreement is intended to be perfonned in accordance with,
and only to the extent pel111itted by, all applicable laws, ordinances, rules and regulations, and is
intended, and shall for all purposes be deemed to be, a single, integrated document setting forth
all of the agreements and understandings of the parties hereto, and superscding all prior
negotiations, understandings and agreements of such parties. If any tcnn or provision of this
Agreement or the application thereof to any person or circumstance shall for any reason and to
any extent be held to be invalid or unenforceable, then, such tenll or provision shall be ignored,
and to the maximum extent possible, this Agreement shall continue in full force and effect, but
without giving effect to such tenll or provision.
18.11 Attomeys' Fees. In the event that either party shall bring an action or legal
proceeding for an alleged breach of any provision of this Agreement or any representation,
warranty, covenant or agreement herein set forth, or to enforce, protect detenlline or establish
any tem], covenant or provision of .this Agreement or the rights hereunder of either party, the
prcvailing party shall bc entitled to recover from the non-prevailing party, as a part of such
action or proceedings, or in a separate action brought for that purpose, reasonable attorneys' fees
and costs, expert witness fees and court costs as may be fixed by the couli or jury.
15
EXECUTION COPY
iN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed and sealed by its duly authorized signatory, effective as of the day and year first above
wri tten.
"SELLER"
AMERICAN AGGREGATES CORPORATION,
a Delaware corporation
(
By: MARTIN MARIETTA MATERIALS, iNC.,
its sole shareholder
By:
.r sident - Mideast Division
"PURCHASER"
THE BOARD OF UBLIC WORKS AND SAFETY
OF THE CITY OF CARMEL, INDIANA, on behalf of
Carmel Utilities
By:
~.o
~--~
(Signature)
Its:
(Printed Name and Title)
CITY OF CARMEL, INDIANA
BY ITS BOARD OF PUBLIC WORKS
AND SAFETY ./
James
Date:
~T ~~QC'\ 't-
Lori Watsoh, Member
Date: q \,'2-1 I 0 I
ATTEST, ~
~ C Clerk-Treasurer
STATE OF INDIANA )
') SS:
COUNTYOFk~\~ )
Befote me, a Notary Public in and for said County and State, personally appeared James
Brainard. Mary Ann Burke. oz",d LUl; 'NAl~~h, b:x:.me known to be the Members of the City of
. . b~...~( ~ ~ c."'....~ClV'. \)....e->-h.j fw-
Carmel Board of Public Works.and Safety, and Diana 1. 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 '2-r......day of ~~ : 2007,
e,~ ~....~.~
NOTARY PUBLIC : ,-
C. Q(V'\ ~~ sJ
~
..->~
'. "';r
''/;1'
'/;
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..-: .-
1/IY;0f
Printed Name ~ -.... .'
My CoUnty ofResidence:~\l ~-"'./
"I'~_..-..~.-....
q\~l \, O(
.
,
My Commission Expires:
Date:
EXHIBIT A
Legal Description and Illustration of Property
,
NE CORN. OF" THE NW JI OF"
SEC. 9- Tl7N-R4E:
BQ.I.RD CF COUWiSKJERS CF H.WLltW axJNTY
JRACJ '0' IN tlST. ~~
N[aRH.Gf'lltt'wHa'll-C
HW ,reF sa:. p..n7H-R4E
IRON PIN FOUND
A T THE NW CORN.
OF THE NW JI OF"
SEC.9-Tl7N-R4E: }i
8OAAO CF CCIIIIISJQERS I .
CF HAJIlTr>>l CCUHY : "'-
TRACT "f:' PI lIST. ,........". 'fl !:i
aTYrx ~ Cr) ~.
INST. p0050007S51J2 " ....
H 89'55'.505- W - 50.00'
STREETs 89' 55' 56" E - 2672.37'-1
S 89' 55' 56" E - 1336.18' . 60'
S 89'5S'S6" E - 1166.19
rnslWC RJGHT-CY-WA.Y
S oem'12- w - 60.00'
N 0011'17. E - 16S.23'
PROPOSED
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TRACT
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[!I] WElliE ENGINEERS INC.
SHEET NO.
lOSOSNCElBt'Y'ff'l 'A"1II AVBNUB
IND1J.NAl'OU!I.INDL\NA 4SZIO
www;wmBIl.NIlI'
31'.......6611
I'AX3I1.143.0546
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CIVIL BNaINllIIRB LAND stlltvllYOlUl LAND9CAPB AItCIl'IIlCl'll
Exblblt - ........, !Ill ~ IRACr
PRT. ~ Sf;C 0. '7 IGl1H. IWlIG[' . ~ ClAY ltIIW5HP. HAl&.TtW ctUITt", NIANA.
OF2
LAND DESCRIPTION - Proposed 20 Ac. Tract
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 Townsbip, 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 Half60.00 feet; thence South 00 degrees 11 minutes
12 seconds West parallel with the East line of said West 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 WestparalleJ with the East line of said West Half 728. 1 1 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 !he Point of Be ginning; conmining 20.00 acres, more or less.
Subject to al11egal easements and rights-of-way.
[!llj WElliE ENGINEERS INC.
SHEET NO.
10505 NOD:IBrrrI J wm. AvmruB
INDIANA1'OUII.INDJANA -
www;wBDIIl.NIlT
311..a.&6.6611
PAX311...."'0S46
TOlL PIUlIlllOO.s2.6oCOI
2
AUANR_PJl.L8.-l'lUllIIDIINl'
avn. IINGINIlJ!IlS L.\ND lltllMlYOIUI LANIllICAPII AIlaIll'BCT8
Exblbll - F'OCf'OSEl) 2D MN. 1IlACT '
PRT. IIf1l SEe. l1. '7 NCJl1H. R.W:iE . EAST. a..AY TOilNSHP, HA&TtW. txUfJ'Y, KUNA
OF2
EXHIBIT B-1
Form of Deed (Parcell)
[FORM OF SPECIAL WARRANTY DEED TO BE ATTACHED]
EXHIBIT B-1
LIMITED WARRANTY DEED
THIS INDENTUREWITNESSETH, that AMERlCAN AGGREGATES CORPORATION, a
Delaware corporation ("Grantor"), BARGAINS, SELLS and CONVEYS to BOARD OF PUBLIC
WORKS OF THE CITY OF CARMEL ON BEHALF OF CARMEL UTILITIES, a body politic of
the State of Indiana ("Grantee"), for the sum of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, that portion of the
following described real estate situated above six hundred eleven (611) feel.above mean sea level,
located in Hamilton County, in the State of Indiana (hereinafter called the "Surface Real Estate"):
A Part of the West Halfofthe Northwest Quarter of Section 9, Township 17 North,
Range 4 East of the Second Principal Meridian, situated in Clay TOVl'I1ship, 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 II minutes. 12 seconds West parallel
with the East line of said West 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 II 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 onthe 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 II minutes IS seconds East 379.71 feet; thence 2.) North 15
degrees 38 minutes 57 seconds East 187.53 feet; thence 3.) North 00 degrees II
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
1166.1 9 feet to the Point of Beginning, containing 20.00 acres, more or less.
TOGETHER WITH a non-exclusive easement on, over and across the surface offollowing
described adjacent real estate (the "Easement Parcel") solely for purposes of discharging stonn water
from the Surface Real Estate to Blue Woods Creek:
A Part of the real estate described in a certain Warranty Deed to American Aggregates
Corporation, recorded in Book ISO, page 552 in the Office of the Recorder of
Hamilton County, Indiana which is also a part of the Northwest Quarter of Section 9,
Township 17 North, Range 4 East, in Hamilton County, Indiana, more particularly
described as follows:
A strip of land 20 feet wide, and right of the following described survey line:
Commencing at the northwest comer of the Northwest Quarter of said Section 9;
thence South 89 degrees 55 minutes 56 seconds East (assumed and basis of all
bearings to follow), along the north line of said Section 9, a distance of 1276.18 feet to
a point 60 feet west of the northeast corner of the West Half of the Northwest Quarter
of said Section 9; thence South and parallel with the east line of said West Half; a
distance of 764.00 feet to the POINT OF BEGINNING of the survey line; thence
South 89 degrees 55 minutes 56 seconds East, a distance of60.00 feet to the east line
of said West Half; thence South on and along the east line of said West Half a distance
of 1091.0 feet to the centerlinc of the Moffitt and Williamson legal drain, which is
the TERMINUS POINT; the sidelines of this easement being prolonged or shortened
to conform with the various points of intersection and the Grantor's easterly boundary
line. The said easement contains 0.52 acres, more or less.
Grantee shall utilize the Easement Parcel s0lely for purposes of laying, installing, constructing,
maintaining, operating, inspecting, altering, replacing and removing its stonn water lines and
equipment. Grantee shall also have the right from time to time to remove all trees, undergrowth,
structures or other obstructions within the said Easement Parcel which may injure, endanger or
interfere with Grantee's use and enjoyment of this non-exclusive easement, all of which work shall
be done at Grantee's sole cost and expense. Grantee shall indemriify, defend and hold harmless
Grantor from any and all claims, actions, cause of action or matters of any kind or nature which arise
out of Grantees use and engagement of said non-exclusive easement on, over or across the Easement
Parcel. Provided, however, that in the event Grantorrelocates Blue Woods Creek as contemplated in
the matter of Martin Marietta Materials, Inc.'s Petition for Special Use Application Docket No.
04040024-SU before the City of Carmel Board of Zoning Appeals, Grantor shall provide to Grantee
a substitute non-exclusive easement of not less than twenty (20) feet in width so as to provide access
for the discharge of storm water frornthe Surface Real.Estateinto the relocated Blue Woods Creek:
SUBJECT TO (i) all easements, high\vays, .rights-of-way, covenants, conditions, restrictions
and other matters of record; (ii) all current, non-delinquent surface real estate taxes and assessments;
and (iii) all matters that would be disclosed by an accurate surveyor physical inspection of said
surface real estate.
SUBJECT FURTHER, to the covenant of Grantee that, for twenty-five (25) years from and
after the date of this Limited Warranty Deed, the Surface Real Estate shall be used only for the
development, construction and operation of water treatment facilities and related improvements
("Water Treatment Facilities") for the purpose of receiving, processing and distributing potable
water, together with other ancillary municipal uses, provided that such ancillary uses do not use more
than 25% of the surface area of the Surface Real Estate. However, Grantee agrees that the ancillary
uses shall not include any use which is considered hazardous, toxic, or requires a NPDES pern1it, air
discharge permit, or that could adversely affect the use, enjoyment or value of the parcel beneath the
Surface Real Estate or the adjoining property. The Water Treatment Facilities and any other uses or
improvements on the Surface Real Estate shall be designed, constructed and maintained by Grantee
so as to withstand the impacts of the activities of Gran tor known by Grantee prior to construction of
the Water Treatment Facilities and nonnally conducted in Grantor's business, including blasting,
whether conducted beneath the Surface Real Estate' or on any other property owned or controlled by
- 2 -
Grantor and its affiliates, so long as Grantor's activities and those of its affiliates comply with state
and federal law as the same exist as of the date of this Limited Warranty Deed.
TO J-IA VE AND TO HOLD the Surface Real Estate to Grantee and Grantee's successors and
assigns forever. Grantor covenants and warrants that said Surface Real Estate is free of any
encumbrance made or suffered by said Grantor except any set forth above, and that Grantor and
Grantor's successors shall warrant and defend the same to said Grantee and said Grantee's successors
and assigns forever, against the lawful claims and demands of all persons claiming by, through, or
under the said Grantor, but against none other.
IN WJTNESS WHEREOF, Grantor covenants and agrees that the person executing this deed
on behalf of the sole shareholder of Grantor is fully empowered by proper action of Grantor and said
shareholder to execute and deliver this deed, and that Grantor has full capacity to convey the Surface
Real Estate and that all necessary corporate action for the making of such conveyance has been taken
and done.
- 3 -
Grantor has caused the execution of this Limited Warranty Deed this
,2007.
day of
AMERICAN AGGREGATES CORPORATION,
A DELA WARE CORPORATION
By: Martin Marietta Materials, Inc., a Delaware Corporation
By:
John 1. Tiberi, President - Mideast Division
- 4 -
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared John J.
Tiberi, the President - Mideast Division of Martin Marietta Materials, Inc., who acknowledged the
execution of the foregoing Limited Warranty Deed, as such officer acting for and on behalf of said
corporation and who, have been duly sworn, stated that the representations therein contained are true
to the best of his knowledge and belief.
Witness my hand and Notarial Seal this
day of
,2007.
Signature
Printed Name
Notary Public
My Commission Expires:
County of Residence:
Send tax statements to and
Grantee's mailing address is:
This instrument was prepared by Zeff A. Weiss, attorney, Ice Miller LLP, One American Square,
Box 82002, Indianapolis, IN 46282-0002; (317) 236-2319.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security number in this document, unless required by law. Zeff A. Weiss
- 5 -
1/2016424.3
EXHIBIT B-2
Form of Deed (Parcel II)
[FORM OF SPECIAL WARRANTY DEED TO BE ATTACHED]
EXHIBIT B-2
QUITCLAIM DEED
THIS fNDENTURE WITNESSETH, that AMERICAN AGGREGATES
CORPORATION, a Delaware corporation ("Gralltor"), QUITCLAIMS to BOARD OF PUBLIC
WORKS OF THE CITY OF CARMEL ON BEHALF OF CARMEL UTILITIES, a body politic
of the State of Indiana ("GTl/lltee"), for the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, that portion
of the following described real estate, located..in Hamilton County, in the State of Indiana
(hereinafter called the "Real Estate"):
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 comer 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 I I minutes 12 seconds West
parallel with the East line of said West 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 1 I 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 I I 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 1] 66.19 feet to the Point of Beginning,
containing 20.00 acres, more or less.
Subject to the reservation of an exclusive easement in favor of Grantor, and its affiliates,
including but not limited to Martin Marietta Materials, Inc., a Delaware corporation, and its and
their respective successors and assigns, on, under and through that portion of the Real Estate
which lies below six hundred and twelve (612) feet above mean sea level (the "Easement
Parcel"), for purposes of (i) pedestrian, vehicular and mechanical ingress and egress between any
one or more parcels of real estate adjoining the Real Estate, and (ii) gaining access to,
transporting, processing or storing minerals of any kind or nature, including but not limited to
sand, gravel and limestone. For purposes of clarity, this reserved easement in and to the
Easement Parcel is for purposes of allowing the conveyance and transportation of minerals
between adjacent properties owned and mined by Grantor or Martin Marietta now or anytime in
the future.
IN WITNESS WHEREOF, Grantor covenants and agrees that the person executing this
deed on behalf of the sole shareholder of Grantor is fully empowered by proper action of Grantor
and said shareholder to execute and deliver. this deed, and that Grantor has full capacity to
convey the Real Estate and that all necessary corporate action for the making of such conveyance
has been taken and done.
- 2 -
Grantor has caused the execution of this Quitclaim Deed this _ day of October, 2007.
AMERlCAN AGGREGATES CORPORATION,
ADELA W ARE CORPORA nON
By: Martin Marietta Materials, Inc., a Delaware Corporation
By:
John.r. Tiberi, President - Mideast Division
STA TE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Pub lie in and for said County and State, personally appeared John J.
Tiberi, the President - Mideast Division of Martin Marietta Materials, Inc., who acknowledged
the execution of the foregoing Limited Warranty Deed, as sueh officer acting for and on behalf
of said corporation and who, have been duly sworn, stated that the representations therein
contained are true to the best of his knowledge and belief.
Witness my hand and Notarial Seal this
day ofOetober, 2007.
Signature
Notary Public
Printed Name
My Commission Expires:
County of Residenee:
Send tax statements to and
Grantee's mailing address is:
This instrument was prepared by Zeff A. Weiss, attorney, Ice Millet LLP, One American Square,
Box 82002, Indianapolis, IN 46282-0002; (317) 236-23 I 9.
I affim1, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security number in this document, unless required by law. ZeffA. Weiss
- 2 -
1/2017739.1
EXH IBIT C
Non-Foreign Certit1cates
Transferor's Certit1cation of Non-Foreign Status
To info1111 City of Cam1c1, Indiana; Department of Utilities ("Transferee"), that withholding of
tax under Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"), will not
be required upon the transfer of certain real property to Transferee by American Aggregates
Corporation, a Delaware corporation ("Transferor"), the undersigned hereby certifies the
following on behalf of Transferor:
I. Transferor is not a foreign corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the Code and the Income Tax Regulations
promulgated there under);
2, Transferor's U.S. employer identification number is
and
3. Transferor's address is 2710 Wycliff Road, Raleigh, North Carolina
27607.
Transferor understands that this Cettification may be disclosed to the Intemal Revenue Service
by Transferee and that any false statement contained herein could be punished by fine,
imprisonment, or both.
Under penalty of peljury I declare that I have examined this Certification and to the best of my
knowledge and bclief it is true, con-ect and complete, and I further declare that I have authority
to sign this document on behalf of Transferor.
Dated as of:
AMERICAN AGGREGATES CORPORATION,
a Delaware corporation
By: MARTIN l'vlARIETTA MATERIALS, INC,
its sole shareholder
By:
John J. Tiberi. President - Mideast Division
EXHIBIT D
Seller Easement (may be inclusive in Deed for Parcell))
An exclusive easement in favor of Grantor [American Aggregates Corporation], and its
affiliates, including but not limited to Martin Marietta Materials, Inc., a Delaware corporation,
and its and their respective successors and assigns, on, under and through that p0l1ion of the Real
Estate which lies below six hundred and twelve (612) feet above mean sea level (the "Easement
Parcel"), for purposes of (i) pedestrian, vehicular and mechanical ingress and egress between any
one or more parcels of real estate adjoining the Real Estate, and (ii) gaining access to,
transpol1ing, processing or storing minerals of any kind or nature, including but not limited to
sand, gravel and limestone. For purposes of clarity, this reserved easement in and to the
Easement Parcel is for purposes of allowing the conveyance and transportation of minerals
between adjacent properties owned and mined by Grantor or Martin Marietta now or any1ime in
the future.
EXHIBIT E
Purchaser Easement (may be inclusive in Deed for Parcell)
A non-exclusive easement in favor of Board of Public Works and solely of the City of
Cannel, Indiana ("Grantee") on, over and across the surface of following described adjacent real
estate (the "Easement Parcel") solely for purposes of discharging storm water from the Surface
Real Estate to Blue Woods Creek:
A Part of the real estate described in a certain Warranty Deed to American
Aggregates Corporation, recorded in Book 150, page 552 in the Office of the
Recorder of Hamilton County, Indiana which is also a part of the Northwest
Quarter of Section 9, Township 17 North, Range 4 East, in Hamilton County,
Indiana, more pal1ieularly described as follows:
A strip of land 20 feet wide, and right of the following described survey line:
Commencing at the northwest comer of the Northwest Quarter of said Section 9;
thence South 89 degrees 55 minutes 56 seconds East (assumed and basis of all
bearings to follow), along the n0l1h line of said Section 9, a distance of 1276.18
feet to a point 60 feet west of the nOl1heast corner of the West Half of the
N0I1hwest Quat1er of said Section 9; thence South and parallel with the east line
of said West Half; a distance of 764.00 feet to the POINT OF BEGINNING of
the survey line; thence South 89 degrees 55 minutes 56 seconds East, a distance
of 60.00 feet to the east line of said West Half; thence South on and along the
cast line of said West Half a distance of 1091.0 feet to the centerline of the
Moffitt and Williamson legal drain, which is the TERrvllNUS P01NT; the
sidelines of this easement being prolonged or sh0l1ened to confoml with the
various points of intersection and the Grantor's easterly boundary line. The said
easement contains 0.52 aercs, more or less.
Grantee shallutilizc the Easement Parcel solely for purposes of laying, installing, constructing,
maintaining, operating, inspecting, altering, replacing and removing its storm water lines and
equipment. Grantee shall also have the right from time (0 time to remove all trees, undergrowth,
structures or other obstructions within the said Easement Parcel which may injure, endanger or
interfere with Grantee's use and enyoyment of this non-ex elusive easement, all of which work
shall be done at Grantee's sole cost and expense. Grantee shall indemnify, defend and hold
hannless Grantor (Ameli call Aggregatcs Corporation) Ii-om any and all claims, actions, cause of
action or matters of any kind or nature which arise out of Grantees use and engagement of said
non-exclusive easement on, over or across the Easement Parcel. Provided, however, that in the
event Grantor relocates Blue Woods Creek as contemplated in the matter of Mat1in Marietta
Materials, lnc.'s Petition for Special Use Application. Docket No. 04040024-SU before the City
of Canllel Board of Zoning Appeals, Grantor shall provide to Grantee a substitute non-exclusive
easement of not less than twcnty (20) feet in width so as to provide acccss for the discharge of
stonll water Irom the Surface Real Estate into the relocated Blue Woods Creek.
EXHIBIT F
Coexistence Agreement
EXECUTION COPY
COEXISTENCE AGREEMENT
TJ-IJS COEXISTENCE AGREEMENT (this "Agreement"), made and entered into
effective as of the _ day of October, 2007, by and between MARTIN MARlETT A
MATERIALS, INC., a Delaware corporation, also known and doing business as American
Aggregates Corporation (hereinafter jointly referred to as "Martin Marietta") and the BOARD
OF PUBLIC WORKS OF THE CITY OF CARMEL, a body politic of the state of Indiana (the
"BP\V"),
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 96th Street to a point
north of East I] 6th 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 comer of the intersection of Gray Road and East 106lh 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 Industries, Inc. from I06th St.) such
property being more particularly described on Exhibit A attached hereto and incorporated herein
by this reference (the "Property").
Martin Marietta currently mines Products from beneaih 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. seq., 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 Martin Marietta Aggregates,
Hamilton Superior Cause No. 29D01-061 O-PL-I 055 (the "Lawsuit"). Martin Marietta and BPW
anticipate and intend to reach agreement on the temlS upon which BPW may acquire the
Property pursuant to its eminent domain powers, leaving, however, to be decided at a later date
either 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
of BPW' s acquisition of the Property, which agreement will include all of the terms for the initial
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
surrounding 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 the 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 t6 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 asare 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 to 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 agreement of BPW to abide by the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the foregoing premises, and the sum ofTen and
0011 00 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
1. lncornoration of BackgroundlRecitals 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 tenns of this Agreement whether the parties
enter into a purchase agreement detailing all of the terms of BPW's
acquisition of the Property, 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 ofBPW to acquire the Property, as follows:
2
A BPW shall initially develop and construct upon the Surface Parcel water
treatment facilities and relatcd improvements ("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 the impacts 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 with state and federal law 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
Agreement, 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 pemlit, air
discharge permit, or that could adversely affect the use, enjoyment or value
of the Subsurface Parcel or the adjoining property.
C BPW hereby waives, releases, imd agrees to indemnify, defend and hold
hannless 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 BPW on the Surface Parcel, or for any other
matter or thing conducted or operated by BPW (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 Martin 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 Agreemcnt
and applicable state and federal laws. The indemnity set forth herein shall
be interpreted as broadly as permitted by Indiana law.
3
D B PW hereby agrees that it shall not attempt to take possession of the
Subsurface Parcel without Martin Marietta's consent until after 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 lliking of it3 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 be interpreted and applied to further
such agreement to the maximum extent possible and this provision shall
prevail over any other part 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 primacy in all cases of ambiguity or inconsistency.
F BPW acknowledges that Martin 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
elimiriate 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 part 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 Property, 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
aeeessing Martin Marietta's' other property, operating the rest of its mine
safely, or complying with any other governmental law, rule, or regulation
after the SUbsurface Parcel is acquired by BPW.
H BPW acknowledges that subsequent to its 'acquisition of the Surfaee Parcel,
and during and after the construction of its Water Treatment Facilities,
Martin Marietta intends to continue to mine the Produets 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 eauses 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 tert, 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,
during the 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 H, 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 ofBPW in connection with the Surface Parcel.
3. Martin Marietta Covenants. Martin Marietta hereby covenants, acknowledges
and agrees, for itself, its agents, employees, and affiliated eompanies, 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 practices and methods as are permitted under applicable
state and federal laws.
B Martin Marietta has advised BPW 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 mine. 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 BPW 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 tloor 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 syste'm 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 umeasonably 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 information: (i) a copy of the lease between Concrete Construction,
Inc. and Martin Marietta for the property just south of the 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, Inc., 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 information to BPW. The purpose of the inspection shall be to pemlit designated
BPW 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 mine that would affect any use of the Property by BPW. It is contemplated
by the parties that this presents principally structural issues to be evaluated by BPW and its
consultants based 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 ifit
finds it reasonably necessary, to modify this Agreement to make 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,
BPW 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 Water 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 terms 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 thatlegally 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: (1) to withdraw from this Agreement and raise any defense or claim
available to it with respect to 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 tem1S of this Agreement. 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 l16th Street and
east of Gray 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 be compelled or required to negotiate an amendment 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 Marietta 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 be the property of Martin Marietta and subject to the
Confidentiality Agreement entered into between the parties contemporaneously with this
agreement.
7
7. Confidentialitv and Return of Infornlation. 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 be subject to the Confidentiality Agreement referenced above.
8. Use of Material bv Experts. 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 Carmel, or any official of the City of Carmel
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 decmed 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:
I f to Martin Marietta:
Martin Marietta Materials, Inc.
1980 East I I 6th Street, Suite 200
Carnlel, IN 46032
Attention: John 1. Tiberi, President - Mideast Division
with a copy to:
Martin Marietta Materials, Int.
PO Box 30013
Raleigh, NC 27622
Attn: Helen Haynes, Associate General Counsel
and to:
ICE MILLER, LLP
One American Square
Suite 3100
Indianapolis, IN 46282-0002
Attention: Zeff A. Weiss, Esq.
8
If to BPW:
Board of Public Works of City of Carmel
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 Market 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'plaee for the service of notice. Noticcs given in any
other fashion shall be deemed effective only upon receipt.
10. Modification, Waiver. No modification, waiver, amendment, discharge or change
of this Agreement shall be valid unfess the same is in writing and signed by the party against
which the enforcement of such modification, waiver, amendment, discharge or change is sought.
II. Governing Law. This Agreement shall be governed by and construed under the
internal laws (as opposed to the laws of conf.icts) 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 \vhich taken together shall constitute one and the
same agreement.
] 3. 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 of 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 or proceedings relating to this
Agreement, each party irrevocably (i) agrees to submit any claim to the United States District
Court for the Southern District of Indiana and (ii) waives any 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 jurisdiction over stich
9
party. However, to the extent that such court independently determines that it lacks jurisdiction,
the matter can proceed in the appropriate forum.
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 the reasonable attorneys' fees, disbursements and
other litigation expenses incurred by the successful party.
17. Severability. 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 Agreemcnt will not be affccted 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 tenns 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, wananties or representations between the parties except as set forth herein.
21. Construction. The 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 an1biguities are to be 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 parties hereto represent and warrant to the other party that such person is duly authorized to
act for and on behalf of said party, and execute and deliver this 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/partner as of the day, month and year first above
\vritten.
BOARD OF PUBLIC WORKS OF
CITY OF CARMEL, INDIANA
MARTIN MARIETTA MATERIALS, INC.
By:
John J. Tiberi, President - Mideast
Division
By:
James Brainard, President
10
STATE OF INDIANA
)
) SS:
)
COUNTY OF MARION
Before me, a Notary Public in and for said County and State, personally appeared John J.
Tiberi, the President - Mideast Division of Martin Marietta Materials, Inc., who acknowledged
the execution of the foregoing Coexistence Agreement, and who, having been duly sworn, stated
that any representations therein contained are true.
Witness my hand and Notarial Seal this _ day of October, 2007.
(signature)
(printed name)
Notary Public
My Commission Expires:
County of Residence:
STATE OF INDIANA
)
) SS:
)
COUNTY OF MARION
Before me, a Notary Public in and for said County and State, personally appeared James
Brainard, the President of the Board of .Public Works of the City of Carmel, Indiana, who
acknowledged the execution of the foregoing Coexistence Agreement, and who, having been
duly sworn, stated that any representations therein contained are true.
Witness my hand and Notarial Seal this _ day of October, 2007.
(signature)
(printed name)
Notary Public
My Commission Expires:
County of Residence:
This instmment prepared by and when recorded return to: Zeff A. Weiss, Esq, Ice Miller LLP,
One American Square, Suite 3100, Indianapolis, IN 46282. I affinn, under the penalties for
perjury, that I have taken reasonable care to redact each Social Security number in this
document, unless required by law. Zeff A. Weiss
11
1/1980824.4
SCHEDULE 8.'l.l
. Exccpted Litil!ation
William McEvoy et. al 11.. CwmellClay Advl.rory Boprd. ofZ6riing Appeals; Cause No. 2900S-
0411-MI-2783. 20S31.0005 (Pending)
Martin Marietta'Materials, Inc. v. CUy?o/Carmel and. Clay Township. Board of Zoning Appeals,
et. 01, Cause'No. 2900J-030S-PL-425. 20S31.0002 (Pending)
Martin Marietta Materials, Inc. v. The City of Carmel, Indiana; CauseNo. 2900J-0310-PL-939,
arose out of Camlel '.s adcipti9Jl of the 2003 Mining Oii:iinance \lnd the 200S.Amended Mining
Ordinance. On October 14, 2003; after aCOlltested Hearing, the (-Iarriilt0l1 Superior Court entered
a temporary restraining order enjoining Carmel, from 'enforcing the200J Mining Ordinance
because Carin<<! had violated Indi2uia lil\vwhen.adtipting.th~ ordinance. Martin Marietta then
filed an amended complaint to enjoin enforcement of i1k.jOOS Ordinance and'on May 26, 200S,
following a contested he'aring, the Hamilton Superior Court enjo}ned enforcement of the 2005
Ordinance for exactly thesanlereasons that it had enjOinei:i .the 2003 Ordinance. Carmel
appealed this decision - The CUyofCarmel. Indiana v.. Martin Marietta Mater/ais, Inc., Cause
No. 29A04-0S.06-CV-00358 ~ and the IiJdiana CoLirt of Appeals ruled ih favor of Martin
Marietta. Carmelfilcd a petition .to .transfer'to the Indiana Supreme Court- The City of Carmel,
Indiana v. Mariin.MariettaMaterials, Inc.. Cause No.,29S04'06I l-CY"00469 - and the matter is
ciIrrently pending before thelndianaSupr~me Court: '20531;0004 (Pending)
Martin Marietta Materials; l'1c: v~', BDf;/CiardirlO(Associates, [P, U.S. pi~trict Court, Case No.
1 :06-ev-0836-LJM-YSS. 20S3 1,0012 (Pending)
Board of Public Works'and Safety a/the City pfCdrmel ys. Mdrlin Marieua
Hamilton Superior Court, Cause No. 29DO 1,-061 (joPL- I OS5. 205'31.0016 (Pending)
Thomas Yedlick v. Michael Hollibaugh, BZA, Martin Mariella, I-Iarriiiton Superior Court 5,
Cause No. 29DOS-0602-MI-30}. 20531.00.11 (Bending)
Martin Mariella Materials, Inc. vs; James. Brainard,' et ar', Y}S~Dis(rict Court, Case-No.1 :06-
. I
CY-082S-DFH-TAB. 20S3 LOOI0 (Pending) '. '-,._
Marlin Martella Materials. Inc. VS. CiiyofCarmel and Clay Township BZA, Hamilton Superior
Court 2, Cause No. 29003-060S-CT-000486. 205JLOOIO'(Pellding,)