Loading...
106th at Gray Road - Martin Marietta CROSS REFERENCES: THE MOST RECENT DEED OF RECORD RELATIVE TO THE EASEMENTS DESCRIBED HEREIN WAS RECORDED AS INSTRUMENT NO. IN THE OFFICE OF THE RECORDER OF HAMILTON COUNTY, INDIANA EASEMENT AGREEMENT I T H I S EASEMENT AGREEMENT (this "Agreement i s made as of the -c `day of 2009 (the Effective Date"), by and between THE CITY OF CARMEL INDIANA, ON BEHALF OF THE DEPARTMENT OF UTILITIES, a body politic of the State of Indiana "Grantor and AMERICAN AGGREGATES CORPORATION, a Delaware corporation, and MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation (jointly, "Grantee RECITALS: WHEREAS, concurrently herewith, Grantor has acquired from American Aggregates Corporation the surface estate of certain real property, as described on Exhibit A attached hereto and incorporated herein by this reference "Grantor's Property and American Aggregates Corporation is retaining the subsurface estate beneath Grantor's Property; and WHEREAS, Grantee is in the business of quarrying, mining, producing, processing, and selling aggregate products, including but not limited to limestone, granite, sand, gravel, rock, and other minerals (collectively, together with any ancillary or incidental activities in connection therewith, "Mining Activities and WHEREAS, American Aggregates Corporation, Martin Marietta Materials, Inc. and /or their affiliates own, lease and /or conduct Mining Activities on certain other real estate in the vicinity of Grantor's Property, including, without limitation, the subsurface estate beneath Grantor's Property (such real estate as may be owned, leased and /or operated by American Aggregates Corporation, Martin Marietta Materials, Inc. and /or their affiliates from time to time is collectively referred to herein as "Grantee's Property WHEREAS, American Aggregates Corporation would not have transferred Grantor's Property to Grantor without concurrently establishing, for the benefit of Grantee's Property, the easements and rights set forth below with respect to Grantor's Property. NOW, THEREFORE, for and in consideration of the premises, the sum of Ten Dollars ($10.00) in hand paid by Grantee to Grantor, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee hereby agree as follows: 1. Recitals. The above recitals are hereby incorporated into this Agreement as if fully set forth herein and are true and correct in all material respects. 2. Acknowledgments. The Board of Public Works of the City of Carmel and Grantee previously entered into a certain Coexistence Agreement dated September 27, 2007, as amended by certain Structural Amendments to Coexistence Agreement dated October 31, 2008 (being collectively referred to hereinafter as the "Coexistence Agreement Grantor intends to construct water treatment facilities and other related improvements upon Grantor's Property (collectively, the "Water Treatment Facilities and covenants and agrees that neither the Water Treatment Facilities nor Grantor's ownership or use of Grantor's Property will be used by Grantor to limit, curtail or prohibit the Mining Activities so long as they are performed in substantial compliance with: (i) all applicable federal, state and local laws, rules and regulations (but with respect to local laws, rules and regulations, only those existing as of the Effective Date) considering the benefit of the Administrative Easement, as such term is defined in Section 3 below; provided, however, that a claim of non- compliance based in nuisance or tort shall not be deemed a failure to comply with applicable law; and (ii) the terms and conditions of the Coexistence Agreement and any and all other agreements between Grantor and Grantee (or their affiliates) relating to conduct of Mining Activities (collectively, the "Regulations Grantor covenants and agrees that it shall not object to impacts upon Grantor's Property or the Water Treatment Facilities which result from Mining Activities conducted in compliance with the Regulations. 3. Easements. Grantor hereby grants to Grantee, for the benefit of Grantee's Property (i) a non exclusive easement on, over, through, across and under Grantor's Property for purposes of installing, maintaining, repairing, replacing and removing monitoring equipment (collectively, the "Equipment for the purpose of measuring the Impacts (as defined below) occurring in connection with Mining Activities on Grantee's Property (the "Equipment Easement and (ii) such rights or interests (excluding any ownership or possessory interest) in favor of Grantee as are necessary to permit the use and inclusion by Grantee of Grantor's Property as part of Grantee's Property for the sole purpose of showing and establishing compliance with any and all local, state, or federal laws, rules, or regulations by determining the effect of any blasting impacts, air emissions, noise emissions, light emissions, applicable setbacks, side yards or similar restrictions or any other impacts from Mining Activities on Grantee's Property (collectively, the "Impacts and measuring compliance with any applicable laws, rules or regulations as if Grantee was the fee owner of Grantor's Property (the "Administrative Easement (the Equipment Easement and Administrative Easement being sometimes collectively referred to hereinafter as the "Easements The grant of the Administrative Easement is made to the fullest extent such grant can be made in accordance with applicable state and federal laws, whether in the nature of an easement or otherwise, and Grantor agrees that Impacts and related determinations shall be measured from the rights -of -way lines of Grantor's Property along 106th Street (to the north) and Gray Road (to the west) rather than along the boundary of any surface real estate owned by Grantee, to the fullest extent permitted by applicable state and federal laws. 2 4. Setback Waivers. To the extent that any law or regulation enacted or amended subsequent to the Effective Date contains provisions allowing adjacent property owners to waive setback requirements, Grantor agrees that Grantor will grant to Grantee, upon request, a waiver of any such setback requirement that would otherwise require a certain setback on Grantee's Property from the common property line with Grantor's Property. In addition, Grantor hereby consents to the existence of any and all improvements and roadways in place on any of Grantee's Property to the extent such improvements and roadways exist on the Effective Date and would otherwise violate any such existing setback requirement. 5. Standstill Agreement. Grantor agrees that Grantor will not take any action against Grantee that would require Grantee to change, diminish, modify, eliminate, limit, curtail or prohibit operations or Mining Activities upon Grantee's Property to make such operations or activities compliant with environmental, land use, or nuisance based laws, rules or regulations that may measure Impacts or compliance at the new property line established by Grantor's acquisition of Grantor's Property, provided that the Mining Activities conducted on Grantee's Property: (i) are in substantial compliance with all applicable federal, state and local laws, rules and regulations (but with respect to local laws, rules and regulations, only those existing as of the Effective Date) considering the benefit of the Easements, provided further, however, that a claim of non compliance based in nuisance or tort shall not be deemed a failure to comply with applicable law; and (ii) are performed in substantial compliance with the terms and conditions of any and all other agreements between Grantor and Grantee (or their affiliates) relating to conduct of Mining Activities (including, without limitation, the Coexistence Agreement). Subject to the foregoing, Grantor agrees that it shall not initiate, pursue or join in any action against Grantee or its lessees relating to such Mining Activities or their effect upon Grantor's use and enjoyment of Grantor's Property. Notwithstanding anything contained herein to the contrary, in the event of a conflict between the terms and conditions contained in this Section 5 and those contained in the Coexistence Agreement, the terms and conditions of the Coexistence Agreement shall control. 6. Use and Term. The Easements and other rights granted to Grantee in this Agreement are for the use and benefit of Grantee and Grantee's agents, employees, contractors, tenants, licensees and invitees solely in respect of Mining Activities, and shall run with the land for the benefit of Grantee's Property and burden Grantor's Property for so long as Mining Activities have not been abandoned for more than two consecutive years on all of Grantee's Property (the "Easement Term provided, however, that no interruption arising in connection with causes beyond the reasonable control of Grantee shall be deemed to commence or continue any period of abandonment of Mining Activities for purposes of this provision. 7. Grantor's Representations and Warranties. Grantor represents and warrants to Grantee that Grantor owns fee simple title to Grantor's Property and has the full right, power and authority to grant to Grantee the Easements and other rights granted under this Agreement. Grantor does hereby warrant unto Grantee the Easements and the other rights granted to Grantee herein, in accordance with the terms and conditions of this Agreement, and will defend the same against claims of all persons (other than Grantee or its affiliates). 8. Reservation of Rights. Grantee agrees and acknowledges that Grantee's representatives may enter upon Grantor's Property only in connection with Grantee's exercise of 3 its rights under the Equipment Easement to install, maintain, repair, replace and remove the Equipment. Grantee further agrees and acknowledges that Grantee's rights under the Administrative Easement relate to monitoring and Impacts compliance and are, in effect, rights of an administrative and regulatory nature for the benefit of Grantee's Property in connection with the Mining Operations, and do not include the right of its representatives to have physical access to or entry upon Grantor's Property. Grantee agrees and acknowledges that the Easements shall in no way be deemed to restrict the construction, location or operation of the Water Treatment Facilities on any portion of Grantor's Property. Furthermore, except as otherwise expressly set forth herein, Grantor reserves the use and enjoyment of Grantor's Property, subject to Grantee's rights under this Agreement. 9. Grantee's Compliance with Laws. Grantee agrees that the Equipment will be installed and maintained in accordance with all applicable state and federal laws, that the placement of Equipment will be done in a manner that will not interfere with Grantor's construction and operation of the Improvements (as reasonably determined by Grantor), and that all Equipment shall be removed from Grantor's Property within thirty (30) days following expiration of the Easement Term. The initial location of any Equipment shall subject to Grantor's approval, such approval not to be unreasonably withheld, conditioned or delayed. Grantor shall have the right to thereafter require any Equipment to be relocated to an alternate location reasonably acceptable to Grantee, provided that the cost of such relocation shall be paid by Grantor. Grantee further agrees and acknowledges that it will continue to conduct the Mining Activities upon Grantee's Property using such mining practices and methods as are permitted under applicable state and federal laws. 10. Binding on Successors and Assigns. The Easements and rights herein granted shall run with the land, shall inure to the benefit of Grantee and its successors, successors -in -title and assigns, and be binding upon Grantor and its successors, successors -in -title and assigns during the Easement Term. As and whenever used herein, the term "Grantor" shall mean and include the named Grantor and its successors, successors -in -title and assigns, and the term "Grantee" shall mean and include the named Grantee and its successors, successors -in -title and assigns. The Easements and rights granted to Grantee in this Agreement shall not be extinguished upon acquisition of the subsurface estate beneath Grantor's Property but shall continue to benefit Grantee's Property as it exists from time to time during the Easement Term. 11. Remedies Upon Breach; Prevailing Party. In the event of a breach of this Agreement (or a threatened breach of this Agreement made in writing or otherwise reasonably evident by course of conduct), the non breaching party shall be entitled to any right or remedy at law or in equity and may institute proceedings for full and adequate relief from the consequences of said breach or threatened breach. The successful party in any such proceeding shall be entitled to reimbursement from the other party for the reasonable attorneys' fees, disbursements and other expenses incurred by the successful party. The term "successful party" shall include, but not be limited to, a party who brings an action against another party by reason of such other party's alleged breach or threatened breach and obtains substantially the relief sought whether by compromise, settlement or judgment. 4 12, Amendments. This Agreement may be amended, modified or terminated at any time, but only by a written instrument executed by the parties and recorded in the Hamilton County Recorder's Office. 13. No Joint Venture. Nothing contained herein shall be construed as either creating a dedication or grant of any rights to the public or causing any party to be a joint venturer or partner of any other. 14. Governing Law. This Agreement shall be governed by and construed pursuant to the laws of the State of Indiana. 15. Severability. The invalidity or unenforceability of any covenant, condition, term or provision in this Agreement shall not affect the validity and enforceability of any other covenant, condition, term or provision. 16. Authority. Each undersigned person signing on behalf of a party hereto certifies that he has been fully empowered and duly authorized by any and all necessary company or partnership action to execute and deliver this Agreement and bind such party. 17. Headings. Sections headings in this Agreement are for informational purposes only and shall have no binding effect. 18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. [COUNTERPART SIGNATURE PAGES FOLLOW] 5 IN WITNESS WHEREOF, Grantor and Grantee have caused this Easement Agreement to be executed as of the Effective Date. "GRANTOR" CITY OF CARMEL, INDIANA, ON BEHALF OF THE DEPARTMENT OF UTILITIES L- Gnu sy: Pri ame: James Brainard Title: Mayor STATE OF INDIANA SS: COUNTY OF HAMILTON Before me, a Notary Public in and for said County and State, personally appeared James Brainard, the Mayor of the City of Carmel, Indiana, who acknowledged the execution of the foregoing Easement Agreement, and who, having been duly sworn, stated that any representations therein contained are true. Witness my hand and Notarial Seal this^ day of itiarctr, 2009. (sig `ture) (printed name) Notary Public My Commission Expires: 4..) County of Residence: OVA -00- "GRANTEE" MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation By: Ai/ Print Name: J. J. Tiber Title: PresiMidea• Division 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 Easement Agreement, and who, having been duly sworn, stated that any representations therein contained are true. Witness my hand and Notarial Seal this y of /fig/CA_, 200 9 l— �l ��G� (signature) Re_.J 7 oir1 rro L (printed name) Notary Public My Commission Expires: ,9 County of Residence: /`7`G2(l(DGiC AMERICAN AGGREGATES CORPORATION, a Delaware corporation By: l ert"- Print Name: Rose yn R. Bar Title: Vice President and Secretary STATE OF M6`4h 646VI K SS: COUNTY OF MAD, WNW Before me, a Notary Public in and for said County and State, personally appeared Roselyn R. Bar, Vice President and Secretary of American Aggregates Corporation, who acknowledged the execution of the foregoing Easement Agreement, and who, having been duly sworn, stated that any representations therein contained are true. Witness my hand and Notarial Seal this day of 4.- A 2009. 1 2--- LAW-4AD (sig e) R-Q r c u& L Mb/ACLU) (printed name) Notary Public My Commission Expires: ail County of Residence: bur•Vvxvn 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. Matthew G. DeLaruelle This instrument prepared by: Matthew G. DeLaruelle, ICE MILLER LLP, One American Square, Suite 2900, Indianapolis, IN 46282 -0200. EXHIBIT A Grantor's Property The following described real estate situated above five hundred fifty -nine (559) feet above mean sea level, located in Hamilton County, in the State of Indiana: A Part of the West Half of the Northwest Quarter of Section 9, Township 17 North, Range 4 East of the Second Principal Meridian, situated in Clay Township, Hamilton County, Indiana and being more particularly described as follows: Commencing at the Northeast corner of the West Half of the Northwest Quarter of said Section 9, Township 17 North, Range 4 East; thence North 89 degrees 55 minutes 56 seconds West (basis of bearings) on and along the North line of said West Half 60.00 feet; thence South 00 degrees 11 minutes 12 seconds West parallel with the East line of said West Half 60.00 feet to a point on the South line of 106th Street as described in Instrument Number 199500052806 on file in the Office of the Recorder of Hamilton County, Indiana and the Point of Beginning of this description; thence continuing South 00 degrees 11 minutes 12 seconds West parallel with the East line of said West Half 728.11 feet; thence North 89 degrees 48 minutes 48 seconds West 1216.19 feet to a point on the Easterly line of Gray Road as described in Instruments Numbered 200500039772 and 200500075502 (Office of the Recorder); thence on and along said East line of Gray Road by the following three (3) courses: 1.) North 00 degrees 11 minutes 15 seconds East 379.71 feet; thence 2.) North 15 degrees 38 minutes 57 seconds East 187.53 feet; thence 3.) North 00 degrees 11 minutes 17 seconds East 165.23 feet to a point on the South line of 106th Street; thence South 89 degrees 55 minutes 56 seconds East on and along said South line 1166.19 feet to the Point of Beginning, containing 20.00 acres, more or less.