American Ag(Martin Marietta) Coexistence
,
,
EXECUTION COPY
COEXISTENCE AGREEMENT
THIS COEXISTENCE AGREEMENT (this "Agreement"), made and entered into
effective as of the ;;1,.... day of ~~:, 2007, by and between MARTIN MARIETTA
MATERIALS, lNC., a Delaware corporation, also known and doing business as Amelican
Aggregates Corporation (hereinafter jointly referred to as "Martin ivlarietta") and the BOARD
OF PUBUC WORKS OF THE CITY OF CARMEL, a body politic of the state of Indiana (the
"BPW"),
Witnesseth that:
BACKGROUND
Martin Marietta is in the business of extracting and selling sand, gravel, limestone and
other products (hereinafter collectively referred to as "Products" or "Minerals") for use in the
local construction industry and trades. To this end, Mm1in Marietta, and its predecessors, have
undel1aken both surface and subsurface mining from a point south of East 96'h Street to a point
north of East 116'1> 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. ivlartin Marietta has
previously extracted minerals from ,a parcel which is approximately 20 acres in size, more or
less, located near the southcast corner of the intersection of Gray Road and East 106'1> Street in
Hamilton County, Indiana, (cxeluding any area east of the west right of' way line of the
North/South servicc road cun'ently scrving Concrete Industries, Inc. Irom 106'1. St.) such
property being more particularly described on Exhibit A attached hereto and incorporatcd herein
by this refercnce (the "PropeI1y").
tvlartin Marietta currently mines Products from beneath the surface of the Property by
means of blasting. BPW has noti lied ivlartin Marietta that it intends to acquire, by contract, or
through its eminent domain powers, the entire Property by taking title to ancl 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 rcfelTed to as the "Surface Parcel") immediately, and taking title to
and possession of the pOl1ion of thc Property situated beneath the Surface Parcel (hereinat1er
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,\ ct. scq., which action is styled
and now pending as Board ofPuolic Works and Safety of the City of Carmel, Indiana, on behalf
of Cannel Utilities vs. American Aggregates Corporation, cllb/a iVIar1in Marietta Aggregates,
Hamilton Superior Cause No, 29DO 1-061 O-PL-l 055 (the" Lawsuit"). Martin t....larietta and BPW
anticipate and intend to reach agreement Oll the tenl1S upon which BP\V 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
alllount of damages to which Martin Marietta is entitled as a result of the taking of the Property.
Martin Marietta and BPW anticipate entering into a purchase agreement detailing all of the terms
ofBPW's acquisition of the Property, which agreement will include all of the terms for the initial
..""
acquisition of the Surface Parcel and thc defcrred acquisition of the Subsurface Parcel.
BPW acknowledges that Martin Marietta has extractcd Products from the Property and
surrounding areas for many years and intcnds 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 arc pel111ittcd under applicable laws. Further,
Martin Marietta operates an activcmine on property adjaccnt to the Property and currently does
and will continue to transport, cmsh, screen, blast, wash, convey, stockpile, sell, and engage in
other activities nonnal and incident to the operation of a cmshed stone qUatTY or minc and a sand
and gravel mine or quarry, using such means arid methods as are permitted under applicable state
and federal laws.
Martin Marietta has agreed to waive any and all objections that it might otherwise have to
the right, power and process undertaken by BPW 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 ($ J 0.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as lollows:
GENERAL PROVISIONS
I. Incorporation of Backl(round/Recitals and Effect of Allreement on Future
Contracts and Proceedinlls. 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, Mal1in Marietta and BPW shall be bound as tallows:
A IVlat1in Marietta agrees to waive any and all objections that it might otherwise
havc 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 ter1J1S of this Agreement whether the parties
enter into a purchase agreemcnt 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. BP'"V hercby covenants, acknowledges and agrees that for good
and valuable consideration, including but not limited to the agrcement of Martin Marietta to
waive any objections it may have in and to the right of BPW to acquire the Property, as follows:
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A BPW shall initially develop and construct upon the Surface Parcel water
treatment facilities and related 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
nonnally conducted in Martin Marietta's business, including blasting,
whethcr conducted on the Subsurface Parcel or any other property owned
or controlled by Martin Marietta so long as Mal1in 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 con1ply 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 oilly 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
Parccl. However, BPW agrces that the ancillary uses shall not include any
use which is considercd hazardous, toxic, or requires a NPDES pennit, air
discharge pennit, or that could adversely affect thc use, enjoyment or value
of the Subsurface Parcel or the adjoining property.
C BPW hereby waives, releases, and agrees to indemnify, defend and hold
hal111less Martin Marietta for all claims, whether based in contract, tort or
nuisance and for damage or damage alleged to have OCCUlTed to the
improvements constructed by SPW on the Surfacc Pm.cel, or for any other
matter or thing eonductcd or operated by SPW (or anyone on the Surface
Parcel pursuant to authority granted by BPW) on the Surface ParceL which
actions .stem from activities undel1aken or aetivities alleged to have been
undertaken by Mmlin Marietta in and about the Subsurface Parcel or the
propcllies owned, leased, or otherwise controlled by Martin Mm:ietta within
a two mile radius of the Propel1y, 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 incurrcd by MilI1in Marietta in
defel1ding from any and all claims, actions and causes of actions of any
kind or nature arising out of Ihe operations of Martin Marietta on its
property, whether based in contract or tort, so long as such operations
comply with the covenants set.forth below in Section 3 of this Agreement
and applicable state and federal laws. The indemnity set forth herein shall
be interpreted as broadly as permitted by Indiana law.
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D BPW hereby agrees that it shall not attempt to take possession of the
Subsurface Parcel without Martin Marietta's consent until after Martin
Mmietta has completed all excavation and mining related operations on the
Subsurface Parcel. Ftll1her, in the event BPW or any successor to SPW
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 Mmietta shall be entitled to damages in an
amount equal to the value of the entirety of the Propel1y as i I' the plior
acquisition of the propel1y never occurred and without set-off for any
amounts previously paid by BPW for the Property,
E B PW further acknowledges that one of the reasons Martin Marietta has
resisted the taking of its property is a concem that the proximity of a public
facility to its mining activities might be used in the future to limit, curtail or
prohibit Martin Mmietta'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 currcnt state or federal law and which mining activity is
consistent with the Martin Malietta 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 andhal1110nized 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 amlllged its facilities and
operations based on its ownership of the entire tract of which thc Property
is a pal1 and agrees that BPW will not take any action against tvlartin
Marietta that would require Martin Marietta to change, diminish, modify, or
eliminate operations to make them compliant with environmental, land use,
or nuisance based laws that may measure impacts or compliance at the new
propel1y line established by the acquisition. As a pan of this Agreement,
and prior to the conveyance or taking of any property, the parties shall
prepare and execute an acceptable easement pellllitting thc determination of
compliailce with any and all local, state, or Cederal laws, rules, or
regulations governing blasting impacts, air emissions, noise, light, water
discharge, applicable setbacks, side yards or similar restrictions, and any
other impacts i,'om Martin Marietta's minil\g operations at the rights of way
lines along] 06'h Street and Gray Road, as iC 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
Cederal laws and the granting of the easement and placement of such
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equipment is done in a manner that BPW reasonably detennines will not
interfere with its constTllction and operation of the Water Trcatment
Facilities.
G BPW shall grant Martin Marietta an easement, leasehold, or othcr estate in
land permitting it to traverse the subsurface parcel for purposes of
accessing Martin Marietta's other property, operating the rest of its mine
safely, or complying with any other goverlUllental law, rule, or regulation
after the Subsurface Parcel is acquired by BPW.
H BPW acknowledges that subsequent to its acquisition of thc Surface Parcel,
and during and after the construction of its Water Treatment Facilities,
Martin Marietta intends to continue to mine the Products from the
Subsurface Pareel. BPW agrees to compensate, indemnify, defend and
hold harmless Martin Marietta from and against any and all damages, costs,
elaims or causes of action of any kind or nature, caused by BPW, Cannel
Utilities or any of their employees, agents, contractors, engineers, architects
or representatives or other persons working on behalf of BPW whether
based in contract or tort, in respect of any damage or destruction to any
property of Martin Marietta and/or persons situated in or about, or
employed and/or used in connection with the mining of Products from
Subsurface Parcel or any adjoining parcels, whether surface or subsurface,
during the constmction and/or subsequent operation oftlle Water Trcatment
Facilitics. BPW shall pay all such damages or claims to Martin Marietta,
including all reasonable attorneys' fees and costs incuned in connection
with cnforcing thc provisions of this paragraph 1-1, within sixty (60) days of
the submission of a claim thereforc by Martin Marietta, which claim shall
include reasonable detail itemizing any and all damages and costs inculTed
as a result of the activities ofBPW in connection with the SurElce Parcel.
3. lvIm1in Malietta Covenants. ivlartin ivlarietta hereby covcnants, acknowledges
and agrees, for itsel r, its agcnts, employees, and aftiliated companies, that for good and valuable
consideration, including but not limited to the covenants agreed to by BPW herein, as follows:
A Mm1in Marietta will continue to mine the SUbsurf~lcc Parccl and any othcr
property owned or controlled by Martin iVlarietta in the immediate area,
using such mining practices andmelhods as arc permittcd under applicable
state and federal laws.
B Martin Marietta has advised I3PW that it intends to lower the floor of the
existing Subsurface. Parcel, which will affect the height of the pillars
suppol1ing the roof of the underground mine. i-"lartin 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 Parccl and BPW has or will satisfY itself that the support
remaining thereafter is adcquate to support whatever load BPW's activities
5
place on the roof of the mine. Mmiin Marietta agrees to can-y out its efforts
to lowcr the floor of the Subsurface Parcel in accordance with the plan
provided to BPW, and agrees not to materially deviate from that plan and
not to change the support systcm 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 implemcntation, and obtaining BPW's written consent.
BPW's consent shall be given within seventy-five (75) days of said notice
and shall not be unreasonably withheld.
4. Changes after Inspection. The parties agree that BPW or its agents need to
investigate and inspect the mine, the Property and the Surface and Subsurface Parcels. Martin
Marietta agrees to permit such investigations and inspection to occur immediatcly 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
PropCliy, 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 andinfonnation: (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 Mmietta 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 Ihe area within 200 feet immediately sUITounding it;
(iv) all reports and documents evaluating the structural suppon system for the mine which have
been prepared by Agapito Associates, Inc., or used by Agapito Associates, Inc., in preparation of
those repol1s and documents; and (v) a copy of any surveys.or drawings of the mine underneath
the Propel1y. If, alter inspecting the above documents and information, BPW or its agents need
additional documents or information related to the teIlllS of this Agreement to properly
invcstigate and inspect Ihe mine, Martin Marietta agrees 10 cooperate with BP\\' to provide the
documents or infolTIlation to BPW. The purpose of the inspection shall be to permit designated
BPW employees and ils consultants to eV'lluate the structural feasibility of the use of the
Propeliy for BPW's purposes contemporaneously with rvtmiin rVlarietta's use of the subsurhlce
parcel for mining, including any changes that may be made by rVlartin Marietta in tbe
configuration of the mine that would affect any use oftbe Propeliy by BPW. It is contemplated
by the panies that this presents principally structural Issues to be evaluated by BPW and its
consultants based on their inspection. Within 30 days following receipt of thc report on the
inspection from Joncs &. Henry Engineers, Ltd., BPW shall notify Martin Marietta in writing if it
finds it reasonably necessary, to modify this Agreement to make the Property.strueturally sound
so that the Water Treatment Facilities can be safely constructed and operated on it concurrently
with l'vlartin l'vlarietta's anticipated mining activities in the area. Any such amendment proposed
by BPW is hereinalter rcferred to as the "Structurally Required Amendment". Additionally,
BPW shall notify j'vlatiin Marietta in writing within 30 days following receipt of the report on the
inspection from Jones & Henry Engineers, Ltd. ifit finds that it is reasonably necessary to amend
the Agreement to modify the boundmies 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
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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. TIle notice shall specify each change or addition to this
Agreement or the tenns of its acquisition of the Property that.BPW wishcs made as a Structurally
Requircd Amendment. Provided, howevcr, that BPW shall not be pennitted to propose: (A)
changes in allowed blasting limits as long as those followed by Martin Marietta meet all
requirements of state and federal law; (B) any change that legally or practically impairs Martin
Marietta's ability to traverse the subsurface parcel to access other portions of its property, or
impairs the use of other portions of Martin Marietta's proper1y 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 detemlined 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
rVlarietta decides to withdraw from this Agreement as a result of Stmcturally Required
Amendment, this Agreement will terminate, BPW may proceed with its condemnation, Martin
Mmietta will be tl'ee to pursue the objections that it has filed in the Lawsuit and BPW will not be
limited in any way by the terms of this Agreerlrent. If BPW detemlines as a result of such
inspection of the mine by BPW or its agents that. for reasons other than a Stmcturally Required
Amendment, it is not economically feasible for BPW to develop and construct the Water
Treatment Facilitics on the Surface'Parcel while Martin Marietta continues to mine Products and
ivlinerals from the Subsurface Parcel or from lVlarlin Marietta's other mining operations, BPW
agrees to dismiss the Lawsuit and abandon its efforts to aequire by eminent domain all or any
part of the Properly or any other property owned by Mar1in Marietta south of 116,1, Street anel
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 10
purchase the water that ivlar1in tvlarietta removes li"om the Properly or any adjoining proper1ies
owned or controlled by Martin Marietta.
6. Sesimic Monitoring. After BP\V's inspection and the resolution of any proposed
Structurally Required Amendments, if BPW still desires to acquire tbc Property, it shall be
entitled to install and maintain a seismograph on the Properiy for a period of not more than 30
days. All data gathered shall be the properly of Martin Marietta and subject to the
Confidentiality Agreement entered into between the par1ies contemporaneously with this
agreement.
7
7. Confidentiality and Retum of lnfonnation. All documents and infonnation
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 rvlartin 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 infonnation that is designated confidential, or who enters Martin Marietta's
propeliy for any reason in connection with this Agreement shall first agree that no confidential
infonnation obtained by him s.hall be used in any other case and that he will not agree voluntarily
to be a witness or a consultant for BPW, the City of Cannel, or any official of the City of Cannel
in any presently pending case or any case arising out of the facts of any presently pending case
involving Martin Marietta or the mine at issue, except for disputes that arise out of the
construction of the Water Treatment Facilities, this Agreement, or the Confidentiality and
Nondisclosure Agreement or Agreement for Purchase and Sale executed concurrently therewith.
9. Notices. Any notice, demand, request or other communication which any pariy
hereto may be required or may desire to give hereunder shall be in writing, addressed as follows
and shall be deemed to have been properly given if hand delivered (effective upon delivery), if
sent by reputable ovemight courier (effective the business day following delivery to such
courier) or if mailed (effective two business days after mailing) by United States registered or
celiified mail, postage prepaid, return receipt requested:
I f to Mmiin Marietta:
Martin Marietta Materials, Inc.
1980 East 116th Street, Suite 200
Canncl, IN 46032
Attention: John J. Tiberi, President- Mideast Division
with a copy to:
ivlartin Marietta Materials, Inc.
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 ofCanncl
Cannel City Hall
One Civic Square
Cannel, Indiana 46032
Attention: John Duffy, Director
with a copy to:
Bingham McHale LLP
2700 Market Tower
J 0 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 place for the service of notice. Notices given in any
other fashion shall be deemed effective only upon receipt.
10. Modification, Waiver. No modification, waiver, amendmcnt, discharge or change
of this Agrecment shall be valid unless thc same is in writing and signed by the party against
which the enforcement of such modilication, waiver, amendment, discharge or change is sought.
II. Govcrning Law. This Agreement shall be governed by and construed under the
intcmallaws (as opposed to the laws of conflicts) of the State of Indiana.
12. Execution in Counterparts. This Agrcement may be executed in any number of
eounterpal1s and by diFferent parties hereto in separate counterparts, each of which when so
exeeutcd dccmed to bc an original and all of which takcn together shall constitute one and the
same agreement.
13. Successors and Assigns. The provisions of this Agreement shall be binding upon
an inure to the benefit of the parties .hereto and each of their respective rcprescntatives,
successors and assigns, subject to the provisions herein restricting assigmnent.
14. Conflicts. In the event of an inconsistency between the terms of this Agreement
and any of the tcmlS of the Indiana Eminent Domain Act, the tenns of this Agreement shall
control.
15. Jurisdiction. With respect to any suit, action or proceedings relating to this
Agl-ecment, each pm1y irrcvocably (i) agrees to submit any c1~lim to the United States District
Court for the Southem 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 co1ll1, waives any claim that
such proceedings have been brought in an inconvcnient forulll and further waives the right to
object, with respect to such proceedings, that such court does not have jurisdiction over such
9
party. However, to the extent that such court independently determines that it lacks jurisdiction,
the matter can proceed in the appropriate forum.
16. Attomeys' 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 provisic:lI1 of this Agreement is determined by a court having
jurisdiction to be illegal, invalid or unenforceable under any present or future law, the remainder
of this Agreement will not be affected thereby. It is the intention of the pm1ies 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 tern1S 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 ean be
changed, waived, discharged or terminated, except by aninstnllnent in writing signed by the
party against whom enforcement of the change, waiver, discharge or termination is sought.
20. Supersession. This Agreement supersedes, in all respects, all prior written or oral
agreements between the parties hereto relating to this Agreement and there are no agreements,
understandings, warranties or representations between the parties except as set forth herein.
21. Construction. The parties acknowledge that each party and each pany's counsel
have reviewed and revised this Agreement and that the nOIl1wll1.l\e of construction to the effect
that any ambiguities arc 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 wamlllt to the other pal1y that such persoll 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, thc undersigned parties have caused the execution of this
Agreement by their duly authorized officer/panner as of the day, month and year first above
written.
BOARD OF PUBLIC WORKS OF
CITY OF CARl\'IEL INDIANA
MARTIN MARIETTA MATERIALS, INC.
...du- O-.LM ,. 11~
By:
Ja\nes Brainard, President
10
CITY OF CARMEL, INDIANA
BY ITS BOARD OF PUBLIC WORKS -
AND SAFETY
J
~
Date:
Date:
9 Member
-J7~07
'-1[rJf- v:k~
. Lori Watson, Member
Date:
ATTEST:
Clerk-Treasurer
STATE OF INDIANA
COUNTYOF~~ll~Y\
)
)
)
SS:
Before me, a Notary Public in and for said County and State, personally appeared James
Brainard, Mary Ann Burke. :iRg Lsri\VatsQR,by me known to be the Members of the Ci~ of
':5 ~d.('"o.. ~ e.'-''/''\Sd''\''"'\ ~~ ," y tra-r
Cannel Board of Public Works and Safety, and Diana L. Cordray, Clerk-Trbsure oftlle City of
Carfnel, who acknowledged the executio~ of the foregoing "Agreement" on behalf of the City of
Cannel, Indiana.
Witness my hand and Notarial Seal this
My Commission Expires:
1-/1?/O tt
.
2, dayof SI!..1p~ ',.2007.
/I /' I CA.: ~r. 't:
l', ~A/";~"~' ."
NOTARY PUBLIC
C. ~l\
Printed Name
, .
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'''Y.?............,
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:
My County of Residence: +tv- ~ \ 1-vv---
Date: q \""2-"1 \ 01
" '
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 i'vlartin Marietta ivlaterials, 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 /~/JY ofOetober, 2007.
/~A- /< ~~
. .
(signature)
h via- I!'. /0' /t' a r /' (l e:....'
(printed name) Notary Public
County of Residence: /-Ia )1~tJc.k
My Commission Expires:;?-//-U:-
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COUNT'{ OF MARION
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STATE OF INDIANA
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Before me, a Notary Public in and for srlid County and Slate, personal appeared James
Brainard, the President of the Board of Public Works of the City of " rmel, Indiana, who
acknowledged the execution of the foregoing Coexistence Agrecme , and who, having been
duly sworn, stated that any representations therein contained arc tr .
Will1ess my hand and Notarial Seal this _ day of etober,2007.
(signature)
(printed name)
Notary Public
My Commission Expires:
County oCResidenee:
This instrument prepared by a when recorded rctunl io:' Zeft'A. Weiss, Esq, Ice !Vliller LLP,
One American Square, Sui' 3100, Indianapolis, .IN 46282. I-affinn7" under the penalties for
peljury, that I have tak 1 reasonable care to redact each. Social Security number in this
document, unless required by law. Zeff A. Weiss
II
1/1981lS24.4