2010 Settlement Agreement between the City of New Castle & Randy Neal, Integrity Land Management, LLC, R.E. Neal, LLC and Neal Scrap Metal, LLC

SETTLEMENT AGREEMENT

 

     This Agreement is entered into this ____ day of __________ 2010, between the City of New Castle (hereinafter "City") and Randy Neal, Integrity Land Management, LLC, R.E. Neal, LLC and Neal Scrap Metal, LLC (hereinafter "Neal").  Their agreement is as follows:

I.   RECITALS OF FACT.

     1.   Neal owns real estate located at 1711 I Avenue, New Castle, Indiana 47362 (hereinafter "the I Avenue parcel").  Said real estate is currently the subject matter of litigation pending in the Henry Superior Court 2, Cause No. 33D02-0807-MI-0005.  .

     2.   Neal owns real estate located at 207 North 26th Street, New Castle, Indiana 47362 (hereinafter "the North 26th Street parcel").  Said parcel is the subject matter of litigation pending in the Henry Superior Court 2, Cause No. 33D02-0804-MI-0004.

     3.   Neal is owner of real estate located on 17th Street in an area bounded between 18th Street, Indiana Avenue, 16th Street and Broad Street (hereinafter referred to as "the 17th Street parcel").

     4.   Neal is the owner of a parcel located at 501 New York Street (hereinafter referred to as "the New York Street parcel").

     5.   Neal is the owner of property located on the south side of Garner Street (hereinafter referred to as "the Garner Street parcel").

     6.   The I Avenue parcel, the North 26th Street parcel, the 17th Street parcel, the Garner Street parcel, and the New York Street parcel are all located within the City of New Castle, Indiana, and subject to the provisions of the New Castle zoning and nuisance codes.

 

II.  NEAL'S AGREEMENTS.

     Neal agrees to the following:

     1.   Within thirty (30) days Neal shall submit to the City of New Castle a plan which reconfigures his business operations at the I Avenue parcel so that said operations no longer meet the definition of "junk yard" as that term is defined in New Castle City Code Section 152.04.  Neal shall change his business from its current status as a junk yard to a metal processing center as suggested in the concurring opinion of the Indiana Court of Appeals.  This shall require raw materials to be stored in a safe and clean manner.  This does not require raw materials to be stored indoors or under roof.  However it does require them to be stored in a fenced area within the yard, kept for a reasonable length of time, and not exceed fence level in height(See rhetorical paragraph 8 below).  

     2.   Neal shall relocate his metal purchasing, storage and processing operations located at the 17th Street property to the I Avenue property.  This relocation shall not create a business which meets the aforementioned definition of "junk yard".

     3.   Neal shall use the outdoor portion of the 26th Street property only for the storage of operable heavy equipment and vehicles including trailers.  If the vehicles and trailers are those customarily used on the public highways, said vehicles will be properly licensed with the Indiana Bureau of Motor Vehicles.  The property shall be kept in such a manner as to not violate any of New Castle's nuisance ordinances or other provisions of the New Castle City Code.  The heavy equipment located at the 26th Street property which is not manufactured or intended for use on public highways need not be licensed for such use.    

     4.   The 17th Street property shall be divided into four (4) quadrants.  The north/south division line being 17th Street and the east/west division line being the existing Norfolk Southern mainline railroad track.  Neal shall do the following with regard to this site:

(a) Regarding the northwest quadrant, all scrap metal, building materials, and equipment shall be removed from the property and the property cleaned.  The property then shall be used by Neal or sold by him but the user must conform to the provisions of the New Castle Zoning Code.

 

(b)  The northeast quadrant may be used in conformity with the New Castle Zoning Code or sold, but Neal shall remove the truck scales currently located on the property.

 

(c)  The southwest parcel shall be cleared of all current scrap metal, including the fence, building materials, and machinery and Neal agrees to donate same parcel to the Henry County Art Council, a governmental entity, or a 501(C)(3) organization, the identity of which may be selected by Neal. 

 

(d)  Only licensed and operable on-road vehicles and empty roll-off containers may be stored on the southeast quadrant. This quadrant is the only 17th Street parcel that may be used for the storage of such vehicles and roll-off trailers.  This parcel shall be limited to the parking of on-road licensed vehicles and a maximum of 10 roll-off trailers.

 

     5.   Neal will discontinue the scrap metal buying, selling and storage operation on the 17th Street property within four (4) months after the execution of this agreement.  The Neal entity shall have until December 31, 2010, to remove all scrap metal from the 17th Street property. Neal shall provide the City with written documentation indicating the termination of the scrap metal facility at the 17th Street property and that said termination constitutes an abandonment and termination of any prior non-conforming use status that might exist on and for that property.

     6.   Neal will continue to operate the New York Street property for storage and maintenance of equipment and trailers behind the fence without change from the current practice.  This parcel shall not be used for storage of items for resale but rather, for machinery and equipment currently used by Neal in his excavation and demolition business. No signs shall be allowed or posted on the New York Street property indicating that equipment or vehicles are sold at that location.

     7.   Regarding the Garner Street property, Neal will discontinue the current use of said property to store empty containers, heavy equipment for use in the Neal demolition operations, and on-road trailers.  Any use of the Garner Street property will conform to current zoning regulations. 

     8.   All operations at the I Avenue parcel will conform to the performance standards set forth in the City Zoning Ordinance and the uses and the operations as outlined in City Zoning Ordinance (see Section 152.28).  All vehicles and trailers not licensed for on road use will be kept behind a fence at the I Avenue property and not visible to the public. (Nothing herein shall restrict Neal from parking on road licensed trucks and trailers and on road vehicles in the visible Neal owned parking lot at this site.) Furthermore, any storage of recyclable metal to be processed shall be maintained so that said product is not visible from outside the fence as one views the property by an adult standing at street level on the opposite sidewalk, from all directions.(The City understands that metal processing equipment, vehicles used in the metal processing industry, railroad  cars, loading and unloading inventory and supplies, and raw materials or inventory received for immediate shipping may from time to time be visible and the use of said items are not restricted by the visibility language contained in this paragraph.)   Said outdoor stored materials shall be kept in orderly fashion and shall be held only as long as needed to recycle, reprocess or recondition the property for sale to a third party and removed from the site but in no event shall inventory be held for a period of longer than twelve (12) months unless kept indoors.  Outdoor storage of materials and equipment shall be done in such a manner as to keep them properly secured from vandals, prevent rodents, insects or other vermin from infesting or residing in the piles and meet all code requirements of the Henry County Department of Health with regard to standing water and mosquito control.

     9.   Neal shall locate three scrap metal bailers on the I Avenue site that will process and prepare raw scrap metal for storage and shipment from the facility.  The City agrees that Neal will be allowed to locate a fourth bailer on the site without further approval of the City.  However, the bailers shall not violate any provision of the New Castle zoning or nuisance codes with regard to dust, noise or other emissions.

     10.  Neal has taken steps to install a filtration system to separate oil run off from the storm water run off entering the New Castle storm water system.  The City hereby agrees that the filtration system as it now exists is adequate and acceptable for the operations that are currently intended on the property.  Neal will ensure that at all times the system conforms with applicable local, state and federal standards and regulations and will periodically allow reasonable inspections of the facility by the City Water Pollution Control Department.

     11.  The manufactured screen (a sheet metal fence) that Neal has erected around the perimeter of the I Avenue operation conforms with necessary building codes and regulations and the City is satisfied with its construction and aesthetics and will not require Neal to alter said fence from its current configuration and construction.  Neal agrees to keep said fence properly maintained, painted, and in its current condition.

     12.  Neal's landscaping of the I Avenue property is approved.  Neal shall keep the approved landscaping maintained and in good condition.  This includes the mowing of all grass as required by City code.  The ground in front of the new building will be graded and covered with asphalt.  The ground between the new buildings will be properly filled and paved to provide a smooth transition between the two previously paved areas.  Neal shall keep the approved landscaping maintained and in good condition.

     13.  Neal shall install an identification sign at the entrance of his facility on I Avenue, which is located at the 18th Street gate.  Said sign shall comply with the provisions of the New Castle Sign Ordinance, be professionally designed and constructed, and shall be kept properly maintained by Neal.

     14.  Neal understands that it has long been the intention and desire of the City to have all empty railroad cars from the corporate boundaries of the City of New Castle.  Neal agrees to cooperate with the City and supports its efforts in this regard.  To this end, Neal agrees that any railroad cars to which he acquires custody and control of, or are intended for delivery to his facility, will be immediately placed and retained within his fenced property at I Avenue and removed as quickly as reasonably possible from the City limits of New Castle. The City agrees that upon removal of any railroad cars from the City due to the efforts of Neal, Neal should properly receive recognition for any assistance he renders in this regard.

     15.  Neal shall establish within his property at the I Avenue site and behind the current fencing a recycling center which meets the requirements of the Three Rivers Solid Waste Management District.  He shall maintain said recycling center and it shall be available to use at no cost by members of the public during Neal's normal hours of operation.  Neal shall be permitted to keep all recyclable materials obtained as a consideration for his supervision of said site. This recycling facility shall be limited to the recycling of metal products only.

     16.  Nothing herein shall relieve Neal from the requirement to comply with all applicable building codes, zoning codes and municipal regulations including but not limited to provisions dealing with fire protection, MS-4, nuisance regulations and controls, noise regulations and controls, and outdoor lighting.  Further, Neal shall not violate any state or county building or health ordinance.

     III. CITY AGREES TO THE FOLLOWING:

     1.   Provided Neal meets all applicable building and zoning codes, submits all necessary documentation to the Building Commissioner, and pays all imposed fees and costs, the City shall issue building permits to Neal to develop the 1711 I Avenue site as a metal processing center.  Neal may construct at ground level scale at the 18th Street entrance to the recycling facility without obtaining a variance in that said scale will not be visible except for metering devises and thus does not interfere with front yard visibility. The term "yard" is defined in Section 152.15 of the New Castle City Codewhich requires that front yards should be unoccupied and unobstructed by structures, but may have steps, walks, terraces, driveways, lamp posts and similar structures.  As this will appear to the public as being a driveway, it is compatible with the New Castle Zoning Code.

     2.   This agreement shall be incorporated into an order concluding the City's pursuit of injunctive relief against Neal for violation of City Zoning Ordinances, said cause pending in the New Castle Superior Court 2, Cause No. 33D02-0807-MI-0005.

     3.  At such time as all provisions of this Settlement Agreement have been met by Neal, the City will approve, support and endorse the construction of a railroad spur to the I Avenue site.

     4.   Upon compliance with rhetorical paragraph 3 above, the City agrees to dismiss its pending Cause No. 33D02-0804-PL-0004.

IV.  MUTUAL RECITALS.

     1.   The parties acknowledge that this document was executed after consultation with counsel of their own choosing and that each acknowledges full and complete understanding of the document and enter this agreement of their own free will and act.

     2.   The parties further acknowledge that this document contains the entire agreement of the parties and no promises were made one to the other that are not contained herein.

     3.   Neal understands that this agreement is not effective until such time as it is approved by the New Castle Board of Public Works and Safety at a public meeting.

     4.   The parties acknowledge that this agreement is contractual in nature and thus is enforceable by either party in a Court of competent jurisdiction.  The parties agree that this agreement shall be construed under and governed by the laws of the State of Indiana.  Any action to enforce this agreement may only be maintained in the Henry County Circuit Court.  The parties further agree that in the event of an action seeking enforcement, the defaulting party shall be responsible for and reimburse the prevailing party all reasonable costs incurred in enforcing these terms, including but not limited to reasonable attorney fees.

     This agreement may be enforced by injunctive relief or specific performance.  The parties acknowledge and agree that each lacks an adequate remedy at law for the enforcement of this agreement.

     Each party signing below has been authorized by their respective companies or entities to execute this document and bind each entity or agency to same.  Each understands and agrees that the other is relying to their detriment, upon the signature of the party signing.