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HomeMy WebLinkAboutDept Report 11-22-04 w/Proposed & Amended Commitments /~ I I CARMEL/CLAY BOARD OF ZONING APPEALS DEPARTMENT REPORT November 22, 2004 /j lh. Martin Marietta Materials - Mueller Property South Petitioner seeks special use approval to establish sand and gravel extraction operation on 96.921:1: acres. The site is zoned S-l/Residence - Low Density. Docket No. 04040024 SU Chapter 5.02.02 special use in the S-l zone The site is located at the southwest comer of the intersection of East 106th Street and Hazel Dell Parkway. Filed by John Tiberi of Martin Marietta Materials, Inc. General Information: The petitioner is seeking special use approval to operate a surface sand and gravel extraction operation on property which is zoned S-l/Residence- Low Density. This is a very complex land use request as evidenced by the level of review and input from the public. Please see the attached commitments prepared for Martin Marietta Materials. The Department has forwarded the Board several binders of information on this request including the following: 1. Application for BZA Action, Special Use Approval Request, City of Carmel, December 13, 2002 2. Response to Requests for Information in Connection with Application for Special Use Approval, City of Carmel, March 5, 2004 3. Construction Plan for Operation to Comply with 327 IAC 15-5-6.5, Hamilton County Soil and Water, April2004 4. Erosion and Sediment Control Report, Shelly and Loy Consultants, June 2004 5. BZA Informational Booklet Hearing date June 28,2004, ICE MILLER, June 18,2004 6. Response to Comments Provided During April 24, 2004 TAC Meeting in Connection with Application for Special Use Approval, City of Carmel, July 2004 7. a. Effects of Proposed Mine Expansion on Public Water Supply Wells, Wittman Hydro, July 27, 2004 b. Executive Summary: Assessment of the Effects on Public Water Supply Wells, Wittman Hydro, August 10, 2004 8. Spill Prevention, Control and Countermeasure Plan, Hamilton and Marion Counties, Aug. 2004 9. Written Remonstrance, KINGS WOOD Homeowners Association, August 11,2004 10. Summary of Application for Special Use Approval to mine Sand and Gravel, City of Carmel, August 10, 2004 11. Application for BZA Appeals Action: Special Use Approval Request, Power Point Presentation, August 11, 2004 .... 16. 12. Sound Level Assessment: Mueller Property South Sand and Gravel Special Use Application, Prepared by: Smelly and Loy, Inc., September 2004 Executive Summary of Application for BZA Appeals Action: Mueller Property South Sand and Gravel, Prepared by: Martin Marietta, September 2004 Remonstrators' Presentation Opposing Martin Marietta Materials, Inc., September 27,2004 a. YARGER ENGINEERING, Letter/SEPTEMBER 27,2004 b. REMONSTRATOR'S OBJECTIONS TO AFFIDAVIT OF MICHAEL C. LADY AND ATTACHED NEIGHBORHOOD ANALYSIS c. REMONSTRATOR'S OBJECTIONS TO AFFIDAVIT OF JOHN 1. TillER! d. REMONSTRATORS' OBJECTIONS TO AFFIDAVIT OF DAVID BUSS Comments in opposition to Special Use Application For Mueller south Sand and Gravel Operations, Submitted by: Thomas Yedlick Various Martin Marietta Submittals: August 11,2004 a. Affidavit of David Buss b. Affidavit of Michael C. Lady c. Affidavit of John J. Tiberi d. OBJECTIONS BY MARTIN MARIETTA MATERIALS, INC. DNR - Blue Woods Creek, Hamilton County, Basin 14, August 11, 2004 NEIGHBORHOOD ANALYSIS: Kingswood Subdivision, Submitted by: INTEGRA REALTY RESOUCES - INDIANAPOLIS, August 11, 2004 13. 14. 15. 17. 18. In addition, among other correspondence, we provided the following: 1. Request to table Public Hearing from Thomas C. Yedlick 2. Request to Table Hearing form Philip Thrasher, attorney for remonstrators Analysis: Section 21.03 of the Zoning Ordinance outlines the Basis of Board Review ofa Special Use as follows: The Board, in reviewing the Special Use or Special Exception application, shall give consideration to the particular needs and circumstances of each application and shall examine the following items as they relate to the proposed Special Use or Special Exception: 1. Topography; 2. Zoning on site; 3. Surrounding zoning and land Use; 4. Streets, curbs and gutters and sidewalks; 5. Access to public streets; 6. Driveway and curb cut locations in relation to other sites; 7. General vehicular and pedestrian traffic; 8. Parking location and arrangement; 9. Number of parking spaces needed for the particular Special Use; 10. Internal site circulation; 11. Building height, bulk and setback; 12. Front, side and rear yards; 13. Site coverage by building(s), parking area(s) and other structures; 14. Trash and material storage; 15. Alleys, service areas and loading bays; 16. Special and general easements for public or private Use; 17. Landscaping and tree masses; 18. Necessary screening and buffering; 19. Necessary fencing; 20. Necessary exterior lighting; 21. On-site and off-site, surface and subsurface storm and water drainage; " / 22. On-site and off-site utilities; 23. Dedication of streets and rights-of-way; 24. Proposed signage (subject to regulations established by the Sign Ordinance); and 25. Protective restrictions and/or covenants. 26. Need for lifeguards and other supervisory personnel, in respect to a private recreational development or facility. 21.04 Basis of Board Approval or Reiection. 21.04.01 Special Use Decisions. The Board, in approving or rejecting a Special Use application, shall base its decision upon the following factors as they relate to the above listed items (Section 21.03) concerning the proposed Special Use: 1. The particular physical suitability of the premises in question for the proposed Special Use. 2. The economic factors related to the proposed Special Use, such as costlbenefit to the community and its anticipated effect on surrounding property values. 3. The social/neighborhood factors related to the proposed Special Use, such as compatibility with existing uses and those permitted under current zoning in the vicinity of the premises under consideration and how the proposed Special Use will affect neighborhood integrity. 4. The adequacy and availability of water, sewage and storm drainage facilities and police and fire protection. S. The effects of the proposed Special Use on vehicular and pedestrian traffic in and around the premises upon which the Special Use is proposed. i ;i '-- PROPOSED COMMITMENTS AS PROVIDED BY THE APPLICANT. I I ~i r'\ . MARTIN MARIETTA MATERIALS. INC. MUELLER PROPERTY SOUTH SAND AND GRAVEL SPECIAL USE APPLICATION Docket No. 04040024-SU STATEMENT OF COMMITMENTS COMMITMENTS CONCERNING THE USE OR DEVELOPMENT OF REAL ESTATE MADE IN CONNECTION WITH PETITION FOR SPECIAL USE PERMIT Martin Marietta Materials, Inc. ("Martin Marietta"), makes the following COMMITMENTS concerning the use and development of that parcel of real estate located near the intersection of the southwest comer of 106th Street and Hazel Dell Parkway, in the City of Cannel, Hamilton County, Indiana, which is more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Real Estate"). Statement of COMMITMENTS: 1. General Operational Commitments (a) Martin Marietta will develop a sand and gravel operation on the Real Estate to commence in 2004 and continue for approximately 3 to 5 years, depending on market conditions. Provided, however, that this permit shall expire seven years from the commencement of sand and gravel extraction. Martin Marietta shall notify the Director (the "Director") of the Department of Community Services ("DOCS") of the City of Cannel (the "City") within seven days of such commencement. (b) The hours of operation regarding the extraction of sand and gravel will be 7:00 A.M. to 7:00 P.M., Monday through Friday, and from 8:00 A.M. to 2:00 P.M. on Saturdays. No operations are permitted on Sunday and holidays. (c) Extraction operations may be conducted outside these hours only (i) to supply materials for inclusion in a public (state, federal or municipally directly funded) project; (ii) to respond to an emergency; or (iii) to meet exceptional demands caused by special projects requiring work outside normal hours. Operations outside the above stated hours to meet the demands of a special project shall not exceed fifteen (15) days in any calendar year. Except in the case of emergencies, DOCS shall be advised of all operations outside of the stated hours at least 48 hours in advance of the work. (d) Overburden removal shall be completed during the hours of 6:00 A.M. to 8:00 P.M between the months of November through March (except as necessary to construct visual and noise barriers) and only on days other than Saturday, Sunday, or holidays. Martin Marietta shall conduct all operations, including overburden removal, in a manner so as to reasonably minimize noise, dust, and light impact on surrounding properties. INDY 1426192v9 ~ . .. ( e) Martin Marietta's acceptance of the hours of operation set forth above is based on the specific nature of the particular activities and site regulated by such hours and shall not be deemed to establish a precedent or suggest that such hours are reasonable for any other operations or any other site. (f) No blasting shall occur on the Real Estate unless otherwise approved by the City or the Carmel/Clay Board of Zoning Appeals ("BZA") under a future petition. (g) No processing of sand and gravel, other than loading of raw material, shall occur on the Real Estate unless otherwise approved by the City or BZA under a future petition. (h) No sales of any material shall occur on the Real Estate. This shall not prevent the removal of topsoil overburden to be sold at Martin Marietta's 96th Street plant, its Carmel Sand Plant located at 11010 Hazel Dell Parkway. 2. Reports and Permits (a) Prior to commencement of any work on the Real Estate, Martin Marietta shall provide copies of approvals and permits from every governmental agency having jurisdiction over the Real Estate and/or activities of Martin Marietta at such site, including all submittals to such governmental agencies, and shall include all specifications and restrictions contained in such submittals and approvals. (b) Following approval of Docket No. 04040024 SU, Martin Marietta shall submit an annual report, on or before March I of each year, indicating the progress that has been made in the development and mining of the Real Estate until final site reclamation. DOCS shall make the report available for inspection and copying by all interested parties. (c) Martin Marietta will seek necessary permits to demolish the buildings located on the Real Estate within six (6) months of the approval of its request for a Special Use Permit for the Real Estate. Cd) The relocation of Blue Woods Creek will be in accordance with the Blue Woods Creek permit approvals and shall include the lining of Blue Woods Creek as set forth in the permit approvals. Martin Marietta will provide as-built plans to appropriate parties following the relocation construction. Martin Marietta will also provide monitoring reports to appropriate parties following construction of the relocation. A copy of the maintenance agreement will be provided to the City of Carmel Urban Forester, Building Commissioner and Department of Engineering. ( e) The maps, submittals, and undertakings in the T AC responses shall be deemed the application documents and shall bind Martin Marietta. Attached hereto as Exhibit B is a master list of the maps and submittals governing the application and this approval. In the event of a conflict between maps or submittals, the most recent 2 INDY 1426192v9 .. submittal shall be deemed to supersede all prior maps or submittals and to be binding on Martin Marietta. (f) Martin Marietta shall use the existing entrances on 96th Street and 106th Street (Carmel Concrete entrance) for haul trucks and other heavy equipment accessing the Real Estate (except as it may be necessary to access the Real Estate from 106th Street for berm construction). No new entrances are proposed in the Special Use application or allowed by the Special Use approval. Access via the former River Road access point shall be limited to construction of the berm, maintenance, and other ordinary vehicles not including haul trucks. Provided, however, the Director is authorized to allow an additional entrance on 106th Street if Martin Marietta proposes to use it for purposes of crossing 106th Street to access the Mueller North property directly and haul material to the Carmel Sand Plant across such Mueller North Property. The Director is authorized to apply such conditions to any approval as he deems reasonable. (g) The berm specified along 106th Street shall be substantially complete within one hundred eighty (180) days of the commencement of the removal of overburden from the Real Estate. Completion shall include, but not be limited to, landscaping installation and seeding. The Director is authorized to allow landscaping and seeding to be deferred up to six (6) months to allow planting to be done at an appropriate time seasonally. 3. Studies and Monitoring If the Director determines that study or monitoring of off-site impacts, such as noise, dust, or truck traffic by way of example is necessary, he or she shall notify Martin Marietta of the particular matter needing study. Martin Marietta shall then present the Director with a proposal to address the matter raised by the Director, at Martin Marietta's expense, within forty-five (45) days. If the Director agrees with the proposal, Martin Marietta shall cause the study or monitoring to be performed at its expense in the time frame set forth in the proposal. If the Director does not agree with Martin Marietta's proposal, he or she shall modify it or present Martin Marietta with his or her own proposal and Martin Marietta shall pay the cost of such studies. 4. Water Monitoring Martin Marietta will cooperate with the City Utilities Department (the "Department") in the development of a water quality monitoring program acceptable to the Department. Martin Marietta's proposal in that regard is contained in the document titled "Groundwater and Surface Water Monitoring Plan for the Mueller Property South Sand and Gravel Operation Carmel, Indiana," dated June 2004, and previously submitted to the Department. Martin Marietta agrees to pay for the monitoring and activities proposed in the report to be done by it. Martin Marietta recognizes that the City wants to conduct additional monitoring at its own expense and agrees to cooperate with the City to permit such additional monitoring. Martin Marietta also agrees to build two weirs at its expense on Blue Woods Creek and to install flow meters at points to be designated by the Department. Further, Martin Marietta shall grant the City access to the 3 INDY 1426192v9 ; monitoring points, flow meters, and related areas at all reasonable times, subject to compliance with MSHA regulations. The City shall also have access to monitoring locations on an as needed basis for emergency purposes. 5. Site Access Improvements (a) Martin Marietta shall construct, at its expense, acceleration and deceleration lanes and a passing blister or dedicated left turn lane and unimpeded thru lanes at all entrances used for transport of raw materials from the Real Estate along 106th Street. These improvements will be subject to the review and approval of the Carmel Engineering Department. (b) Martin Marietta will construct, at its expense, a dedicated northbound left turn lane along Hazel Dell Parkway at the entrance to the Carmel Sand Plant. This improvement will be subject to the review and approval of the Carmel Engineering Department. This improvement shall be reviewed and amended to accommodate differing traffic patterns, if the processing equipment at the Carmel Sand Plant is moved to an alternate location prior to commencement of mining on the Real Estate. DOCS is authorized to waive this commitment for up to one hundred eighty (180) days if Martin Marietta shows that such a waiver is necessary because of any delays in movement of the plant site. (c) Martin Marietta shall commence all roadway improvements specified herein expeditiously once plans are approved and diligently pursue completion of such work. (d) Martin Marietta shall furnish a bond in form acceptable to the Director to assure that any damage done to that portion of Gray Road, 106th Street, or Hazel Dell Parkway by trucks or equipment hauling material from the Real Estate is repaired to meet City roadway standards. ( e) Martin Marietta will request approval from the Carmel City Council to vacate the existing right-of-way associated with River Road, as located on the Mueller Property South once relocation of Blue Woods Creek is completed. 6. COID'oliance with Thoroughfare Pian Martin Marietta will dedicate or cause to be dedicated a forty-five foot half right-of-way for East 106th Street (Secondary Arterial) pursuant to the Carmel Thoroughfare plan, following approval of its request for a Special Use Permit for the Real Estate. Martin Marietta shall be entitled to reserve a corridor in the right-of-way for accessing the Mueller North Property as referenced in paragraph 2(f). 7. Street Cleaning Martin Marietta shall work diligently to minimize spillage of materials on the streets and shall be responsible for keeping the streets and street intersections used to haul material from the Real Estate clean. There shall be an initial ninety (90) day trial period in which Martin Marietta 4 INDY 1426192v9 ;; is authorized to clean the streets on its schedule. If the results are satisfactory to the Director, he shall be entitled to authorize Martin Marietta to continue to clean the streets on its schedule. The Director is authorized at any time, however, to direct Martin Marietta to clean the streets daily and to clean any unusually large spills of materials from the Real Estate immediately upon notice to it. 8. Buffers and Screening (a) A buffer area of approximately 330 feet in width will be maintained along the southern right-of-way of 106th Street. The relocated Blue Woods Creek will be maintained in such buffer area. Martin Marietta shall construct a berm approximately nineteen feet (19') in height adjacent to the southern right-of-way line in this area as shown on the submittals. The berm shall be landscaped as provided in the submittals and a six foot (6') high chain-link fence shall be built along such right-of-way it as shown on the submittals. (b) A seeded berm along the western boundary of Hazel Dell Parkway approximately fifteen (15) feet in height will be constructed and a six-foot chain-link fence will be installed as shown on the submittals. (c) All landscaping will be completed consistent with the Conceptual Landscaping Plan Map, a copy of which is on file in the Office of DOCS. 9. Environmental (a) Sand and Gravel operations shall be conducted in conformance with the Federal Clean Air Act and applicable statutes and regulations implemented by the Indiana Department of Environmental Management. (b) Martin Marietta shall maintain an approved Spill Prevention, Control, and Countermeasures (SPCC) Plan for this facility, a copy of which is on file with the Carmel Fire Department, and in the Office of DOCS. (c) Martin Marietta will maintain an approved Stormwater Management and Erosion and Sediment Control Report for this facility, a copy of which is on file in the Office of DOCS. (d) Martin Marietta agrees to use the best available technology allowed by MSHA and other applicable regulatory authorities for its back-up alarms. Initially, Martin Marietta proposes to install strobe safety lights on all of its equipment operating on the Real Estate to the extent permitted by laws and regulations, instead of back-up alarms for operations after sundown and before sunrise. These strobes shall be installed within sixty days of the grant of this permit unless the Director requests that Martin Marietta defer the installation of such strobes to give the Director additional time to determine whether there is ~ better available technology. Thereafter, the Director shall be entitled, once every two (2) years, to advise Martin Marietta of the availability of newer, preferable technology and to require that it be utilized if commercially available. Provided, however, that all 5 INDY 1426192v9 such safety measures shall conform to then existing laws and regulations and safety standards, with regard to back up protections. Martin Marietta further agrees voluntarily to apply this condition to its equipment at the Carmel Sand Plant. 10. Reclamation (a) The BZA recognizes that there is a pending application by Martin Marietta that could affect the reclamation of the Real Estate. The BZA considers it important, however, that the Real Estate have a viable use if the other pending application in the respect of the Real Estate is not approved. Therefore, attached hereto are examples of potential uses on reclamation and Martin Marietta agrees, upon request of the landowner, to reclaim the property in such a manner as to be suitable for one type of the attached uses. The BZA further recognizes, however, that the property is currently zoned S-1 and that the zoning classification(s) and uses in effect at the time of reclamation will have a substantial impact on how it might then be used. The uses described herein are thus not endorsed by the BZA or authorized by this Special Use permit, but are intended to describe potential uses of the property, subject to appropriate zoning and land use review in the future. (b) Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim the Real Estate as an open space with (i) slopes no steeper than 3 to 1 and (ii) domestic grass coverage of not less than 80% per square yard on all side slopes. A minimum of six (6) inches of topsoil will be replaced in the areas to be seeded/planted. A concurrent reclamation plan will be employed to the extent possible. (c) All reclamation shall comply generally with the reclamation guidelines adopted by the Indiana Mineral Aggregates Association and will be completed consistent with the Conceptual Reclamation Plan Map, a copy of which is on file in the Office of DOCS. (d) Martin Marietta will provide a reclamation bond payable to the City in an appropriate and reasonable amount that, in the Director's discretion, is sufficient to assure reclamation as described in the application for Special Use. This bond will be kept in full force until Martin Marietta completes the reclamation of the Real Estate, and shall be subj ect to amendment from time to time as deemed necessary by the City to assure completion of the reclamation. 11. Binding Effect These commitments shall apply to the present owner of the Real Estate, Martin Marietta, and all transferees, assignees, successors, personal representatives, creditors in possession, trustees, and all other entities and individuals who may receive all or part of the title to the Real Estate. The owner of the Real Estate and Martin Marietta shall be jointly and severally liable for each of the commitments set forth herein. 6 INDY 1426192v9 I I 12. General. (a) In all matters where a representative of the City is given discretion to order studies or take action, he shall do so reasonably and shall not require the doing of any act or the expenditure of money for arbitrary or capricious reasons. (b) This approval is specific to the Martin Marietta proposal for the mining of sand and gravel on the Mueller South parcel only, and in no way implies that the BZA has reviewed, condoned, or approved any aspect of any other application for mining, either Limestone surface mining or Limestone underground mining, by Martin Marietta at that location. (c) The denial of a future application to mine on the Real Estate shall not be deemed a taking based on any theory that the Real Estate has become unusable for any purpose other than mining by virtue of the grant of this Special Use permit. Martin Marietta retains its right to challenge the denial of any future application on any other ground or theory, including a taking theory not based on the grant of the permit herein, whether based on state or federal laws or constitutions, board rules, local ordinances, or otherwise. (d) Martin Marietta shall provide access to City employees and its consultants, at all reasonable times, for purposes of monitoring compliance with these COMMITMENTS and any other responsibilities derived therefrom. These COMMITMENTS shall be binding on Martin Marietta and other persons acquiring an interest in the Real Estate. These COMMITMENTS may be modified or terminated by a decision of the Carmel/Clay Advisory Board of Zoning Appeals made at a public hearing after proper notice is given. COMMITMENTS contained in this instrument shall be effective upon the adoption of Approval Docket No. 04040024 SU by the Carmel/Clay Advisory Board of Zoning Appeals and shall continue in effect for as long as the above-described parcel of Real Estate remains the subject of the Special Use Permit issued in said Approval Docket No. 04040024 SU or until such other time as may be specified herein. These COMMITMENTS may be enforced jointly or severally by the Carmel/Clay Advisory Board of Zoning Appeals and/or the City of Carmel Department of Community Services. The undersigned hereby authorizes the City of Carmel Department of Community Services to record this Statement of Commitments in the Office of the Recorder of Hamilton County, Indiana, upon final approval of Docket No. 040400024 SUo 7 INDY 1426192v9 I I -; IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument this day of November 2004. MARTIN MARIETTA MATERIALS, INC. By: John J. Tiberi, Vice President/General Manager 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 Vice President/General Manager of Martin Marietta Materials, Inc., who acknowledged the execution of the foregoing instrument and who, having been duly sworn, stated that any representations therein contained are true. WITNESS my hand and Notarial Seal this day of November, 2004. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: 8 INDY 1426192v9 .. E. & H. MUELLER DEVELOPMENT, LLC, an Indiana limited liability company By: Signature Its: Printed Name and Title STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, a Notary Public in and for said County and State, personally appeared , the Managing Member, authorized agent of E. & H. Mueller Development, LLC, an Indiana limited liability companYt who acknowledged the execution of the foregoing instrument and who, having been du1y sworn, stated that any representations therein contained are true. WITNESS my hand and Notarial Seal this day of November, 2004. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: This instrument was prepared by and after recordation should be returned to Zeff A. Weiss, Ice Miller, One American Square, Box 82001t Indianapolist Indiana, 46282-0200, Telephone (317) 236-2319. 9 INDY 1426192v9 EXHIBIT A REAL ESTATE DESCRIPTION INDY 1426192v9 INDY 1426192v9 EXHIBIT B MASTER LIST OF MAPS AND SUBMITTALS 1 . --." '~ -, ~ PROPOSED COMMITMENTS AS AMENDED BY DOCS. The following document contains the commitments that DOCS is recommending to the Board. In addition, following this document, are recommendations/suggestions for consideration from John Molitor. Attached under a separate cover are the Commitments proposed by the applicant. As the Board will be able to see from the two documents DOCS is not in agreement with the proposed commitments. INDY 1426192v~ I I '~'l I '1':-~ -. ; MARTIN MARIETTA MATERIALS. INC. MmELLERPROPERTYSOUTH SAND AND GRAVEL SPECIAL USE APPLICATION Docket No. 04040024-SU STATEMENT OF COMMITMENTS COMMITMENTS CONCERNING THE USE OR DEVELOPMENT OF REAL ESTATE MADE IN CONNECTION WITH PETITION FOR SPECIAL USE PERMIT Martin Marietta Materials, Inc. ("Martin Marietta"), makes the following COMMITMENTS concerning the use and development of that parcel of real estate located near the intersection of the southwest comer of 106th Street and Hazel Dell ReaG Parkway, in the City of Carmel, Hamilton County, Indiana, which is more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Real Estate"). Statement of COMMITMENTS: 1. General Operational Commitments (a) Martin Marietta will develop a-sand and gravel operation on the Real Estate to commence in 2004 and continue for approximately 3 to 5 years, depending on market conditions. Provided, however, that this permit shall expire seven years from the commencement of sand and gravel extraction. Martin Marietta shall notify the Director ("Director") of the Department of Community Services ("DOCS") of the City of Carmel (the "City") within seven days of such commencement. (b) The hours of operation regarding the extraction of sand and gravel will be 7:00 A.M. to 7:00 P.M.. Monday through Friday. and from 8:00 A.M. to 2:00 P.M. on Saturdavs. No operations are permitted on Sunday and holidays. (c) Extraction operations may be conducted outside these hours only (i) to supply materials for indusion in a public (state. federal or municipally directly funded) proiect: (ii) to respond to an emergency; or (iii) to meet exceptional demands caused by special proiects requiring work outside normal hours. Operations outside the above stated hours to meet the demands of a special project shall not exceed fifteen (IS) days in allY calendar year. Except in the case of emergencies. DOCS shall be advised of all operations outside of the stated hours at least 48 hours in advance of the work. (:b}(d) Overburden removal shall be completed during the hours of 6:00 A.M. to 8:00 P.M between the months of November through March (except as necessary to construct visual and noise barriers) and only on days other than Saturday, Sunday, or holidays. Martin Marietta shall conduct all operations, including overburden removal, in a manner so as to reasonably minimize noise, dust, and light impact on surrounding properties. 2 INDY 1426192v~ I I . . (e) Martin Marietta shall limit 's acceptanoe of the hours of operation at the Cannel Sand Plant located at 11 010 Hazel Dell Pkwy to 7:00 A.M. to 7:00 P.M., Monday through Friday, and from 8:00 A.M. to 2:00 P.M.. 011 Saturdays. No operations are pemlitted on Sunday. (n Processing operations may be conducted outside these hours only 0) to supply materi.als for inclusion in a public proiect: (ii) to respond to an emergency: or (iii) to meet exceptional demands caused bv special proiects requiring work outside normal hours. Operations outside the above stated hours to meet the demands of a special proiect shall not exceed fifteen (15) days in any calendar year. Except in the case of emergencies, DOCS shall be advised of all operations outside of the stated hours at least 48 hours in advance of the work. set forth above -is-eased on the nature of the particular activities regulated by such hOl.1fS and s11I11111ot be deemed to establish a precedent or suggest that such hours a-re reasonable for any other operations. ftA( g) No blasting shall occur on the Real Estate unless otherwise approved by the City or the Carmel/Clay Board of Zoning Appeals ("BZA") under a future petition. fe.}(h) No processing of sand and gravel, other than loading of raw material, shall occur on the Real Estate unless otherwise approved by the City or BZA under a future petition. ffi(i) No sales of any material shall occur on the Real Estate. This shall not prevent the removal of topsoil overburden to be sold at Martin Marietta's 96th Street plant or its Carmel Sand Plant located at 11010 Hazel Dell Pkwy. 2. Host Fee (a) Mal1in Marietta or its assigns or successors shall pay to the City a host fee regarding the sand and gravel operation to offset additional expenses to the City including. but not limited to: (1) Expenses, including past expense, borne in the course of reviewing and commenting upon Ma11in Marietta's applications. (2) Expenses bome to design and constmct repairs and improvements to City streets impacted by the operation, including: Hazel Dell Parkway: 96th Street: Gray-Road: 106th Street: River Road, 116th Street, 126th Street. and 131st Street. (3) Expenses, including past expense, borne in the course of defending the City 1iom legal action brought bv Martin Marietta, related to petitions for mineral extraction and related activities. (4) Expenses, including past expense, for monitoring the potential impacts of Martin Marietta's past and future operations on the City's water supply. 3 INDY 1426192v~ (5) Expenses. as determined by the Director. for study or monitoring of off-site im?acts. such as noise. dust. or truck traffic. as per Section no. 4 (Studies and Monitoring) in these Commitments. (b l The host fee shall be paid to the City in quarterly installments of $250.000. The first payment shan be due beginning with the nearest fiscal quarter tbat falls one hundred eighty (180) days after commencement of removal of overburden from the Real Estate. Fiscal quarters shall be periods ending March 3]: June 30: September 30 and December 31 of each year. (c l Failure to pay the host fee within 15 days of the fiscal quarter will result in a penalty not to exceed 1.5% compounded for each 30-day period ofnonpayment. (d) Failure to pay the host fee and penalties due for a period of more than 90 days shall result in the immediate termination of mining at the site. and reclanlation shall commence at the direction of the Director of Community Services after notice. Martin Marietta agrees that the tennination of mining due to the failure to pay fees and penalties. by viI1ue of these Commitments. does not constitute a legal defense. (el Together with each payment. Martin Marietta shall provide the City a report of the number of days extraction operations and/or processing oper~tions were conducted outside of approved hours. (:0 The host fee payments shall terminate at the conclusion of the operation. which shall mean. for purposes of this agreement. the completion and approval by the Director of the reclamation plan as per Docket No. 04040024-SU. The approval of the reclamation plan may extend no more than one year beyond the final planting:s to ensure cover and growth. unless Martin Marietta is directed to perform additional work. at which time the one year period would commence for another period. Martin Marietta is required to continue to pay the host fee until final approval by the Director. 2-:-3. Reports and Permits (a) Prior to commencement of any work on the Real Estate, Martin Marietta shall provide copies of approvals and permits from every governmental agency having jurisdiction over the Real Estate and/or activities of Martin Marietta with respect to the Real Estate, including all submittals to such governmental agencies, and shall include all specifications and restrictions contained in such submittals and approvals. (b) Following approval of Docket No. 04040024 SU, Martin Marietta shall submit an annual report on or before March 1 of each year showing the progress that has been made in the development and mining of the Real Estate until final site reclamation. DOCS shall make the report available for inspection and copying by all interested parties. 4 INDY 1426192v~ (c) Martin Marietta will seek necessary permits to demolish the buildings located on the Real Estate within six (6) months of the approval of its request for a Special Use Permit for the Real Estate. (d) The relocation of Blue Woods Creek will be in accordance with the Blue Woods Creek permit approvals and shall include the lining of Blue Woods Creek as set forth in the permit approvals. Martin Marietta will provide as-built plans to appropriate parties following the relocation construction. Martin Marietta will also provide monitoring reports to appropriate parties following construction of the relocation. A copy of the maintenance agreement will be provided to the City of Carmel Urban Forester, Building Commissioner and Department of Engineering. (e) The maps, submittals, and undertakings in the T AC responses shall be deemed the application documents and shall bind Martin Marietta. Attached hereto as Exhibit B is a master list of the maps and submittals governing the application and this approval. In the event of a conflict between maps or submittals, the most recent submittal shall be deemed to supersede all prior maps or submittals and to be binding on Martin Marietta. (f) Martin Marietta shall use the existing entrances on 96th Street, Gray Road. and 106th Street (Carmel Concrete entrance) for haul trucks and other heavy equipment accessing the Real Estate (except as it may be necessary to access the Real Estate from 106th Street for berm construction). No new entrances are proposed in the Special Use application or allowed by the Special Use approval. Access via the former River Road access point shall be limited to construction of the berm, maintenance, and other ordinary vehicles not including haul trucks. Provided, however, the Director is authorized to allow an additional entrance on 106th Street if Martin Marietta proposes to use it for purposes of crossing 106th Street to access the Mueller North property directly and haul material to the Carmel Sand Plant across such Mueller North Property. Martin Marietta is entitled to reserve an access corridor for such purposes across the right-of-way it is otherwise dedicating to the Ci~r The Director is authorized to apply such conditions to any approval of a 106t St. access as he deems reasonable. (g) The berm specified along 106th Street shall be substantially complete within one hundred eighty (180) days of the commencement of the removal of overburden from the Real Estate. Completion shall include, but not be limited to, landscaping installation and seeding. The Director is authorized to allow landscaping and seeding to be deferred up to six (6) months to allow planting to be done at an appropriate time seasonally. J4. Studies and Monitoring If the Director determines that study or monitoring of off-site impacts, such as noise, dust, or truck traffic by way of example, is necessary~ he or she shall notify Martin Marietta of the particular matter needing study. Martin Marietta shall then present the Director with a 5 INDY 1426192v~ proposal to address the matter raised by the Director, at Martin Marietta's expense, within forty- five (45) days. If the Director agrees with the proposal, Martin Marietta shall cause the study or monitoring to be performed at its expense in the time frame set forth in the proposal. If the Director does not agree with Martin Marietta's proposal, he or she shall modify it or present Martin Marietta with his or her own proposal~ and Martin Marietta shall pay the cost of such studies. ~5. Water Monitoring Martin Marietta will cooperate with the City Utilities Department in the development of a water quality monitoring program acceptable to the Utilities Department. Martin Marietta's proposal in that regard is contained in the document titled "Groundwater and Surface Water Monitoring Plan for the Mueller Property South Sand and Gravel Operation Carmel, Indiana," dated June 2004, and previously submitted to the Utilities Department. Martin Marietta agrees to pay for the monitoring and other activities proposed in the report to be done...Qyj!. Martin Marietta recognizes that the City wants to conduct additional monitoring at its own expense and agrees to cooperate with the City to permit such additional monitoring. Martin Marietta also agrees to build two weirs at its expense on Blue Woods Creek and to install flow meters at points to be designated by the Utilities Department. Further, Martin Marietta shall grant the City access to the monitoring points, flow meters, and related areas at all reasonable times, subject to compliance with MSHA regulations. The City shall also have access to monitoring locations on an as needed basis for emergency purposes. ~6. Site Access Road..y;ays Improvements (a) Martin Marietta shall construct, at its expense, acceleration and deceleration lanes and a passing blister or dedicated left turn lane and unimpeded thru lanes at all entrances on roads used for transport of raw materials from the Real Estate along Gray Road and/or 106th Street. These improvements will be subject to the review and approval of the Carmel Engineering Department. This eommitmel1t shall apply only if Ma11iu Marietta makes substantial use of the particular road to tmR-Sflert material from the Real Estate. (b) Martin Marietta will construct, at its expense, a dedicated northbound left turn lane along Hazel Dell Parkway at the entrance to the Carmel Sand Plant. This improvement will be subject to the review and approval of the Carmel Engineering Department. This improvement condition shall be reviewed and amended to accommodate differing traffic patterns ~ if the processing equipment at the Carmel Sand Plant is moved to an alternate location prior to commencement of mining on the Real Estate. DOCS is authorized to waive this commitment for up to one hundred eighty (180) days if Martin Marietta shows that such a waiver is necessary because of any delays in movement of the plant site. (c) Martin Marietta shall commence all roadway improvements specified herein expeditiously once plans are approved and pursue completion of such work diligently. 6 INDY 1426192v~ (d) Martin Marietta shall furnish a bond in form acceptable to the Director to assure that any damage done to that portion of Gray Road, 106th Street, or Hazel Dell Parkway by trucks or equipment hauling material from the Real Estate is repaired to meet City roadway standards. ( e) Martin Marietta will request approval from the Carmel City Council to vacate the existing right-of-way associated with River Road, as located on the Mueller Property South, once relocation of Blue Woods Creek is completed. 7. Compliance with Thoroughfare Plan ff.jMartin Marietta will dedicate or cause to be dedicated a forty-five-foot half right of- way for East 106th Street (Secondary Arterial) pursuant to the Carmel Thoroughfare plan. following approval of its request for a Special Use Permit for the Real Estate. Martin Marietta shall be entitled to reserve a corridor in the right-of-way for accessing the Mueller North Property as referenced in paragraph 2(f}. 8. Street Cleaning ~Martin Marietta shall work diligently to minimize spillage of materials on the streets and shall be responsible for keeping the streets fea6s and street intersections used to haul material from the Real Estate clean. There shall be an initial ninety (90) day trial period commencing with its regular use of the streets for this project during which Martin Marietta is authorized to clean the streets used for hauling materials from the Real Estate on its schedule. If the results are satisfactory to the Director, he shall be entitled to authorize Martin Marietta to continue to clean the streets on its schedule. The Director is authorized at any time, however, to direct Martin Marietta to clean the streets daily and to clean any unusually large spills of materials from the Real Estate immediately upon notice. ~9. Buffers and Screening wcn A buffer area of approximately 330 feet in width will be maintained along the southern right-of-way of 106th Street. The relocated Blue Woods Creek will be located in such buffer area. Martin Marietta shall construct a berm approximately nineteen feet (19') in height adjacent to the southern right -of -way line in this area as shown on the submittals. The berm shall be landscaped as provided in the submittals and a six foot (6') high chain-link fence shall be built along such right- of-way as shown on the submittals. AA(g) A seeded berm along the western boundary of Hazel Dell Parkway approximately fifteen (15) feet in height will be constructed and a six-foot (6') chain-link fence will be installed as shown on the submittals. f:eiCh) All landscaping will be completed consistent with the Conceptual Landscaping Plan Map, a copy of which is on file in the Office of DOCS. 7 INDY 1426192v~ +: 10. Environmental WO) Sand and Gravel operations shall be conducted in conformance with the Federal Clean Air Act and applicable statutes and regulations implemented by the Indiana Department of Environmental Management. ~m Martin Marietta shall maintain an approved Spill Prevention, Control, and Countermeasures (SPCC) Plan for this facility, a copy of which is on file with the Carmel Fire Depalt.ment. and in the Office of DOCS. f~(k) Martin Marietta will maintain an approved Stormwater Management and Erosion and Sediment Control Report for this facility, a copy of which is on file in the Office of DOCS. f4)(l) Martin Marietta agrees to use the best available technology allowed by MSHA and other applicable regulatory authorities for its back-up alarms. Initially, Martin Marietta proposes to install strobe safety lights on all of its equipment operating on the Real Estate to the extent permitted by laws and regulations, instead of back-up alarms, for operations after sundown and before sunrise. These strobes shall be installed within sixty days of the grant of this permit unless the Director requests that Martin Marietta defer the installation of such strobes to give the Director additional time to determine whether there is a better available technology. Thereafter, the Director shall be entitled once every fi.v.e-two (2) years to advise Martin Marietta of the availability of newer, preferable technology and to require that it be utilized if commercially available. Provided, however, that all such safety measures shall conform to then existing laws, regulations and safety standards with regard to back up protection. Martin Marietta further agrees voluntarily to apply this condition to its equipment at the Carmel Sand Plant. &- 11. Reclamation ~m) The BZA recognizes that there is a pending application by Martin Marietta that could affect the reclamation of the Real Estate. The BZA considers it important, however, that the Real Estate have a viable use if the other pending application relating to the Real Estate is not approved. Therefore, attached hereto are examples of potential uses on reclamation and Martin Marietta agrees, upon request of the landowner, to reclaim the property in such a manner as to be suitable for one type of the attached uses. The BZA further recognizes, however, that the property is currently zoned 8-1 and that the zoning classification(s) and uses in effect at the time of reclamation will have a substantial impact on how it might then be used. The uses described herein are thus not endorsed by the BZA or authorized by this Special Use permit, but are intended to describe potential uses of the property, subject to appropriate zoning and land use review in the future. MUlL Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim the Real Estate as an open space with (i) slopes no steeper than 3 to 1 and (ii) 8 INDY 1426192v~ domestic grass coverage of not less than 80% per square yard on all side slopes. A minimum of six (6) inches of topsoil will be replaced in the areas to be seeded/planted. A concurrent reclamation plan will be employed to the extent possible. fete 0) All reclamation shall comply generally with the reclamation guidelines adopted by the Indiana Mineral Aggregates Association and will be completed consistent with the Conceptual Reclamation Plan Map, a copy of which is on file in the Office of DOCS. f&)(p) Martin Marietta will provide a reclamation bond payable to the City in an appropriate and reasonable amount that, in the Director's discretion, is sufficient to assure reclamation as described in the application for Special Use. This bond will be kept in full force until Martin Marietta completes the reclamation of the Real Estate, and shall be subject to amendment from time to time as deemed necessary by the City to assure completion of the reclamation. ~ 12. Binding Effect WThese commitments shall apply to the present owner of the Real Estate, Martin Marietta, and all transferees, assignees, successors, personal representatives, creditors in possession, trustees, and all other entities and individuals who may receive all or part of the title to the Real Estate. The owner of the Real Estate and Martin Marietta shall be jointly and severally liable for each of the commitments set forth herein. t413. General. (a)Il1 all matters where a representative of the City is given discretion to order studies or take action he shall do so reasonably and shall not require the doing of any act or the expenditure of money for arbitrary or capricious reasons. ~(Q) This approval is specific to the Martin Marietta proposal for the mining of sand and gravel on the Mueller South parcel only, and in no way implies that the BZA has reviewed, condoned, or approved any aspect of any other application for mining, either limestone surface mining or limestone underground mining, by Martin Marietta at that location. (r) The denial of a future application to mine on the Real Estate shall not be deemed a taking based on any theory that the Real Estate has become unusable for any purpose other than mining by virtue of the grant of this Special Use permit. Martin Marietta retains the right to challenge the denial of any future application on any other ground or theory, including a taking theory not based on the grant of the permit herein, whether based on state or federal laws or constitutions, board rules, local ordinances, or otherwise. (s) Martin Marietta shall provide access to City employees and their representatives. including consultants. at all reasonable times for purposes of monitoring 9 INDY 1426192v~ compliance with these COMMITMENTS and any other responsibilities derived therefrom. These COMMITMENTS shall be binding on Martin Marietta and other persons acquiring an interest in the Real Estate. These COMMITMENTS may be modified or terminated by a decision of the Carmel/Clay Advisory Board of Zoning Appeals made at a public hearing after proper notice is given. COMMITMENTS contained in this instrument shall be effective upon the adoption of Approval Docket No. 04040024 SU by the Carmel/Clay Advisory Board of Zoning Appeals and shall continue in effect for as long as the above-described parcel of Real Estate remains the subject of the Special Use Permit issued in said Approval Docket No. 04040024 SU or until such other time as may be specified herein. These COMMITMENTS may be enforced jointly or severally by the Carmel/Clay Advisory Board of Zoning Appeals and/or the City of Carmel Department of Community Services. The undersigned hereby authorizes the City of Carmel Department of Community Services to record this Statement of Commitments in the Office of the Recorder of Hamilton County, Indiana, upon final approval of Docket No. 040400024 SUo 10 INDY 1426192v~g IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument this day of November 2004. MARTIN MARIETTA MATERIALS, INC. By: John J. Tiberi, Vice President/General Manager 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 Vice President/General Manager of Martin Marietta Materials, Inc., who acknowledged the execution of the foregoing instrument and who, having been duly sworn, stated that any representations therein contained are true. WITNESS my hand and Notarial Seal this day of November, 2004. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: 11 INDY 1426192v~ E. & H. MUELLER DEVELOPMENT, LLC, an Indiana limited liability company By: Signature Its: Printed Name and Title STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, a Notary Public in and for said County and State, personally appeared , the Managing Member, authorized agent of E. & H. Mueller Development, LLC, an Indiana limited liability company, who acknowledged the execution of the foregoing instrument and who, having been duly sworn, stated that any representations therein contained are true. WITNESS my hand and Notarial Seal this day of November, 2004. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: (l This instrument was prepared by and after recordation shall be returned to Zeff A. Weiss, Ice Miller, One American Square, Box 82001, Indianapolis, Indiana, 46282-0200, Telephone (317) 236-2319. 12 INDY 1426192v.sg INDY 1426192v~ I , EXHIBIT A REAL EST ATE DESCRIPTION Include list INDY 1426192v~ EXHIBIT B MASTER LIST OF MAPS AND SUBMITTALS CommentslRecommendations from John Molitor: Below, I have drafted substitutes for two paragraphs in MM' s draft (replacing paragraphs 1 O(b) and (c) in their draft) which the Board may want to impose on Mueller and MM, regarding ''takings'' and Mueller's property rights. 1. Ramifications of Approval for Mueller. Mueller acknowledges and commits that a property owner is not entitled under Indiana law to the highest and best use of the owner's land. Mueller further acknowledges and commits that if the BZA approves this special use application but subsequently declines to approve any or all other uses contemplated by MM, neither the BZA nor the City shall thereby be deemed to have prevented all reasonable use of the Mueller Property or to have denied the owner all economically beneficial or productive use of its land. 2. Commitment of Martin Marietta Regarding: Mueller. MM acknowledges and commits that if the BZA approves only the special use requested in this application, such approval will allow the owner of the Mueller Property an economically beneficial and productive use of its land, and such approval will vest no right in MM or Mueller to any further approvals of other uses contemplated by MM; nor will such approval create a precedent or any presumption that any other contemplated uses of the Mueller Property are reasonable uses or are not injurious to the public health, safety, morals, or general welfare of the community. MM further commits that if, notwithstanding the provisions of the above paragraph, Mueller or its successors bring any claim or action against the BZA or the City which alleges that the BZA's decisions or the City's zoning restrictions have resulted in a taking or other deprivation of Mueller's property rights, MM shall indemnify, defend, and save harmless the BZA and the City from and against all judgments, liabilities, fines, penalties, or expenses arising out of such claim or action. Finally, I would recommend substituting the following paragraphs for paragraph 9 (BINDING EFFECT) and the last three paragraphs ofMM's draft. My main point here is to make sure that any Commitments they make regarding property rights continue on for 99 years. 3. Effective and Expiration Dates. These Commitments shall be effective from and after the approval of the application by the BZA. These Commitments shall expire on December 31, 2103; however, any Commitments respecting reclamation shall expire earlier in the event that MM completes its sand and gravel extraction operations on the Mueller Property and reclaims said property in accordance with these Commitments. 4. Binding Effect. These Commitments are binding on MM as the current lessee and Mueller as the current owner of the Mueller Property, each subsequent lessee and owner thereof, and each person acquiring an interest therein, until the expiration date as determined pursuant to the above paragraph, unless modified or terminated by the BZA or its successor pursuant to this paragraph. Except as provided in the above paragraph, these Commitments may be modified or terminated only upon (a) petition by MM or its successor, and (b) approval by the BZA after notice and hearing pursuant to the BZA's Rules of Procedure. Until they expire pursuant to the above paragraph or are modified or INDY 1426192v~ \ terminated pursuant to this paragraph, these Commitments shall be enforceable by the City of Cannel or the BZA by injunctive relief, denial of building permits or approval, or other appropriate administrative or judicial remedy, provided that any such relief, denial, or other remedy is related to the Mueller Property and to some effects or hann from a breach or violation of these Commitments by MM or Mueller. In any proceedings to modify or terminate these Commitments, notice of hearing shall be given to the owners of property as required by the Cannel Zoning Ordinance and the BZA' s Rules of Procedure. INDY 1426192v~ .. ~ ~- ., i THRASHER BUSCHMANN GRIFFITH & VOELKEL, P .C. Attorneys-at-Law Market Square Center 151 N. Delaware St., Ste. 1900 lndianapolis,~ 46204-2505 Ph.: (317) 686-4773 Fax: (317) 686-4777 Computer Address: tbrasher@indiana-attorneys.com November 15,2004 Carmel/Clay Advisory Board of Zoning Appeals c/o Carmel Department of Community Services Third Floor Carmel City Hall Carmel, IN 46032 ~ "tV lJ ~~, f:,::F (~. 'f"'I ~ ~::'7:' tf:? ~~ PHILIP C. THRASHER STEPHEN R BUSCHMANN + MATTHEW A. GRIFFITH DENNIS 1.. VOElKEL STEVEN C. EARNHART JEFFREY M. BELLAMY. + Also Registered Lobbyist .Also Indiana Registered Civil Mediator Attention: Mr. Jon Dobosiewicz Re: Mueller South Sand and Gravel Commitments Docket No. 04040024 SU Dear Jon: Would you please be so kind as to forward the attached Commitments to the BZA for their consideration at the November 22, 2004 hearing on the captioned matter. This letter and the exhibit are being sent to you this date by email so that you may be able to add to or amend the attached to suit the additional commitment requests of the DOCS, which I did not try to incorporate at this time. We are still holding out hope that the Application for Special Use will be denied as not being in the best interests ofthe citizens ofthe City of Carmel, but if the BZA seriously considers approving such Application, we strongly urge the BZA to impose the attached Commitments for everyone's protection, physically and financially, in the future. If you need additional information, please do not hesitate to call. November 15,2004 Carmel/Clay Advisory Board of Zoning Appeals Page 2 Thank you for your kind cooperation and assistance in this matter. Very truly yours, THRASHER BUSCHMANN GRIFFITH & VOELKEL, P.C. ~~LJ\~ '.' _ . Philip C. Th~sher ~ Encl. Cc: Zeft A. Weiss, Esq., Ice Miller, One American Square, P. O. Box 82001, Indianapolis, IN 46282-2100, w/encl. John Molitor, Esq., Molitor Grisham, P .A., 11711 N. Meridian St., Suite 200, Indianapolis, IN 46032, w/encl. Mr. Thomas Yedlick, 5053 St Charles Place, Carmel, Indiana 46033, w/encl. Mr. William D. McEvoy, 5120 Williams Circle, Carmel, Indiana 46033, w/encl. L:\WPFILES\021330\041116jd.ltr.doc COMMITMENTS Docket No. 04040024 SU Martin Marietta Materials. Inc.. American Aaareaates Corporation And E. & H. Mueller Development. LLC These Commitments are being made by the Applicant, Martin Marietta Materials, Inc., its affiliate, American Aggregates Corporation, and the land owner, E. & H. Mueller Development, LLC, in connection with the approval of Docket No. 04040024 SU, involving certain land described in the Application for Special Use therein (said land being hereinafter referred to as the "Real Estate"). Said parties are referred to individually as a "Covenantor" and collectively as "Covenantors." A. Commitments Relating to Water Quality It is acknowledged that the impact of the proposed mining on the groundwater of the area will involve an area much larger than the Real Estate, including land owned by one or more of the Covenantors, the City of Carmel, and other third persons, and such area is hereinafter referred to as the "capture zone." To the extent possible, the Covenantors shall obtain the cooperation of any third persons whose property may be affected by these commitments; however, in all events the Covenantors shall be directly responsible for full compliance with each of the commitments set forth herein. Attached hereto and incorporated herein is Figure 1, which describes the location of the various water quality protection monitoring wells and surface water sites set forth in the report: 'Wellfield Monitoring Requirements for City of Carmel, Indiana," a copy of which is on file with the Department of Community Services of the City of Carmel (the "DOCS") and incorporated herein. The wells and surface water sites described hereinbelow are the same as located in Figure 1. 1. Covenantors will provide the City complete access to the proposed monitoring wells and pits on their property and to the discharge ponds located west of Gray Road and south of 106th Street (hereinafter referred to as the "discharge ponds" or singularly as a "discharge pond") {all as identified in the Monitoring Framework Report, dated , prepared by , and incorporated herein (the "WHPA Monitoring Framework Report"). A copy of such WHPA Monitoring Framework Report is available in the office of the DOCS. The DOCS shall determine the frequency of samplings from all monitoring sites and the information to be obtained. The DOCS may utilize other sources of 1 information in reaching such determinations, including, without limitation, the Wellhead Protection Local Planning Team or similar group. 2. The Covenantors shall pay for all sampling and tests of water within the capture zone, including, but not limited to, water quality testing at laboratories certified in Indiana to test for drinking water parameters established in the Federal Clean Water Act. The Covenantors shall pay for all equipment, supplies, installation, maintenance, repair, and replacement of all wells and testing devices described herein or as may be reasonably required by the DOCS from time to time to comply with the provisions hereof. 3. The Covenantors shall install water level recorders and shall pay the costs of water level monitoring equipment and ("SCADA") devices in at least nine (9) new locations to be determined by the DOCS within the capture zone. These locations may include several monitoring wells in the sand and gravel aquifer and at new stilling wells located in all mine discharge ponds. Water levels will be recorded daily at each water level measuring point and the costs of monitoring and well maintenance shall be borne by the Covenantors. 4. The Covenantors shall purchase and install four (4) monitoring wells, including the materials used therefore, and shall at their expense install continuous water level measurement equipment and dedicated sampling equipment. Such wells shall be installed at locations to be determined by the DOCS within the capture zone and the sampling shall be conducted on a daily basis for each well at the sole expense of the Covenantors. 5. The Covenantors shall establish and pay for the monitoring of two (2) surface water quality measuring stations in the discharge ponds and one (1) surface water sampling location in Blue Woods Creek downstream from the NPDES permitted discharge location. In addition, the Covenantors will install and pay for the monitoring of two (2) new surface water level measuring stations that will be established with stilling wells in the discharge ponds. The new stilling wells will be surveyed for vertical reference to the nearest 1/1 oath of a foot. 6. The Covenantors shall construct, monitor, repair, maintain, and replace as necessary two (2) new weirs, one on the inlet to the northeastern discharge pond and one on Blue Woods Creek west of Hazel Dell Parkway. The Covenantors shall install continuous water level measurement equipment to calculate discharge at such locations. The City of Carmel shall have the right and access to monitor surface water at one location on Blue Woods Creek, east of Gray Road, at the expense of the Covenantors. 2 7. The Covenantors shall use flow meters to track the discharge of wash water and sump water to the discharge ponds from the Real Estate and from any other site that is owned or controlled by any of the Covenantors that drains to or is pumped into any of the discharge ponds. 8. All data collected as a part of this effort will be reported to the City of Carmel on a quarterly basis; provided, however, that the City of Carmel may require more frequent reporting in its sole discretion. 9. In the event any monitoring shall disclose an actual degradation of water quality or an imminent threat to water quality for the area, the Covenantors shall immediately upon receipt of notice from the City of Carmel cease and desist such activities as may be causing the degradation or threat. If the Covenantors do not voluntarily cease and desist such activity, then the City of Carmel shall have the right to order the Covenantors to immediately cease and desist from so much of their activities as are or may be causing the degradation or threat to the water quality of the area, which order may remain in effect until such time as the water quality has been improved to reasonably acceptable standards or until the threat to the water quality has been abated. 10. In the event the City of Carmel shall suffer any damages by reason of the degradation of water quality or threat to water quality for the area by reason of the actions or inactions of any Covenantor, including the payment of fees to attorneys and/or consultants, all Covenantors shall be jointly and severally liable to the City of Carmel for reimbursement of such damages, including, without limitation, court costs, attorneys' fees, costs of collection, and costs of litigation. If such actions or inactions of the Covenantor(s) continue, or are repeated without justifiable cause, then for successive occurrences the City of Carmel shall be entitled to recover punitive and exemplary damages from the Covenantors in question in addition to all other remedies available at law or in equity. 11. In the event the Covenantors shall fail to abide by one or more of the above commitments, the City of Carmel shall have the right to perform such activity as the Covenantors were to perform and to recover all direct and indirect costs and expenses associated therewith from the Covenantors, including, without limitation, court costs, attorneys' fees, costs of collection, and costs of litigation. B. Commitments Regarding Use of the Real Estate 1. The mining at the Real Estate, including removal of overburden, storage of material, and transportation of material, will be done in accordance with 3 the performance standards set forth in the Carmel City Code, Chapter 20B: M-1/Manufacturing District. 2. No blasting shall occur on the Real Estate without additional affirmative approval by the Carmel/Clay Advisory Board of Zoning Appeals ("BZA") fOllowing additional public hearings pursuant to a different Application. 3. The Covenantors hereby waive their right, if any, to seek compensation for damages resulting from any determination by the BZA, the City of Carmel, any other governmental body, or the courts that blasting shall not be permitted within the Real Estate. 4. No processing of raw aggregate into marketable products such as sand and gravel, other than storage or loading of raw material for transport, shall occur on the Real Estate. 5. The Covenantors shall relocate the existing Carmel Sand Plant, presently located on the west side of Hazel Dell Parkway north of 106th Street, to a site on the east side of Hazel Dell Parkway as soon as possible, and the Covenantors hereby commit that the mining of raw aggregate on the Real Estate for processing into marketable sand and gravel shall not commence until the Carmel Sand Plant has been thus relocated. 6. The utilization of trucks for transporting raw aggregate from the Real Estate on public roads shall be minimized. The Covenantors shall, to the extent possible, transport all raw aggregate mined from the Real Estate to any off-site processing plant by means of conveyor belt, water slurry, or other means that does not cause traffic increases. The DOCS shall have the final discretion to select which means of transportation of aggregate mined at the Real Estate shall be utilized to reach the processing plant proposed by the Covenantors. If the Covenantors determine that trucks must be utilized on public roads to transport raw aggregate from the Real Estate to a processing site, then the DOCS shall have the discretion to require any and all reasonable and necessary street improvements to public streets to be installed according to plans and specifications approved by the City of Carmel and at the sole cost and expense of the Covenantors, such street improvements to be completed prior to the commencement of mining on the Real Estate. 7. No sales of any material shall occur on the Real Estate. 8. At any time, and from time to time, the DOCS shall have the power to require the reclamation plan for the Real Estate to be amended if such purposes shall include public safety, water quality, effect on the environment, public or private nuisance, lateral support, or any other reason in the best interest of the citizens of the City of Carmel; provided, however, that the Covenantors shall have the right to have the 4 Carmel/Clay Advisory Board of Zoning Appeals review such decisions( s) by the DOCS prior to their implementation. 9. Prior to commencement of any work on the Real Estate, and at all times thereafter, the Covenantors shall submit and keep in full force and effect letters of credit, bonds, or cash ("Financial Security") payable to the City of Carmel in an amount equal to the cost, from time to time, of reclamation of the Real Estate in accordance with the reclamation part of the Plans. The form and amount of the Financial Security shall be subject to the discretion of the DOCS, shall be subject to amendment from time to time, and shall be issued by a financial institution or insurance company licensed to do business in the State of Indiana. The issuer of the Financial Security shall have a AAA rating and net assets of not less than one billion dollars. The DOCS shall have the right to require a different issuer of the Financial Security from time to time, a change the form of Financial Security, and an increase the amount of the Financial Security if the DOCS deems such changes to be necessary to protect the City of Carmel and assure the completion of the reclamation plan as it may exist from time to time. 10. The City of Carmel shall have the unrestricted right to draw down all or any part of the financial security without cause, and the rights of the City of Carmel shall not be subject to claims by the Covenantors or any creditor or bankruptcy trustee of any of the Covenantors. The City of Carmel shall use all funds so received for the purpose of reclaiming the Real Estate in the event of default by the Covenantors and for the payment of any mitigation costs incurred by the City of Carmel resulting from the operation of the mine on the Real Estate or caused by the acts, omissions, or negligence by the Covenantors, including, without limitation, mitigation costs incurred off-site. The terms of the reclamation plan shall include a provision allowing the City of Carmel its reasonable attorneys' fees and other expenses of litigation, mediation, or arbitration in the event of litigation regarding its rights to payment under the financial security, including, without limitation, defenses raised by the Covenantors. 11. The Covenantors have submitted to the DOCS and the BZA has approved the grading plan, development plan, landscaping plan, mining plan, reclamation plan, soil conservation and erosion control plan, spill prevention, control, and countermeasure plan, wellfield protection plan, groundwater and surface water monitoring plan, drainage plan, operations plan (including, without limitation, hours of operation, types of equipment, noise, lights, fugitive dust, truck routes, and other matters deemed important by the DOCS) (collectively, the "Plans"). No substantial deviation from such Plans shall be permitted without the granting of a Variance by the BZA following notices and hearings in accordance with the Rules of Procedure of the BZA governing variances of use and development standards. 5 12. The Covenantors shall submit an annual report on or before March 1 of each year indicating the progress that has been made in the development and mining of the Real Estate until final reclamation of the Real Estate. DOCS shall make the report available for inspection and copying by all interested parties. DOCS shall have the right to require the Covenantors to conform to its Plans and other representations made in conjunction with this matter, in default of which the Covenantors will be subject to statutory fines and injunctive relief. 13. Prior to commencement of any work on the Real Estate and at all times thereafter, the Covenantors shall provide to the DOCS for approval copies of all approvals and permits then in effect from every governmental agency having jurisdiction over the Real Estate and/or activities of the Covenantors, including all submittals to such governmental agencies, and shall include all specifications and restrictions contained in such submittals and approvals. 14. The Covenantors herby grant DOCS the power to require the Covenantors to pay for such studies and reports including traffic, dust monitoring, and noise monitoring, as DOCS shall reasonably believe appropriate from time to time. 15. The Covenantors shall provide to the DOCS a current copy of the lease between E. & H. Mueller Development, LLC and Martin Marietta Materials, Inc., including any other documents that relate to the ownership, control, mining rights, mineral rights, and other matters involving use of the Real Estate. The Covenantors agree not to substantially modify or terminate such lease and other arrangements without the prior written consent of the DOCS if the effect of such modification or termination would include any change from the current control of the Real Estate, impair the rights of the City of Carmel, alter the reclamation of the Real Estate upon completion of the mining of the sand and gravel therein, or alter the obligations of the Covenantors to guaranty or fund any obligations of any of the Covenantors to the City of Carmel. 16. The Covenantors shall have the right to sell or transfer the Real Estate, the mineral rights within the Real Estate, and/or the leasehold rights in the Real Estate; provided, however, that the Covenantors shall not be relieved of any responsibility under these commitments in the event of default by the transferee, and the transferee of the Covenantors' interest in the Real Estate shall be subject to all of these commitments, including the rights of the City of Carmel. 17. These commitments shall apply to the present owner of the Real Estate, the Covenantors, and all transferees, assignees, successors, personal representatives, creditors in possession, trustees, and all other entities and individuals who may receive all or part of the title to the Real Estate. 6 The Covenantors and each of their successors and assigns shall be jointly and severally liable for each of the commitments set forth herein. IN WITNESS WHEREOF, the Covenantors have caused these Commitments to be executed by their duly authorized representatives as of the _ day of 200_. MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation By: Attest: Printed: Printed: Title: Title: STATE OF COUNTY OF ) ) SS: ) Before me, a Notary Public in and for said county and state, personally appeared and known to me to be the and of , who acknowledged the execution of the above and foregoing Commitments for and on behalf of said Witness my hand and notarial seal this _ day of 200_. Signature: Notary Public Printed: My commission expires: My county of residence is: 7 , . AMERICAN AGGREGATES CORPORATION, an Ohio corporation By: Attest: Printed: Printed: Title: Title: STATE OF ) ) SS: ) COUNTY OF Before me, a Notary Public in and for said county and state, personally appeared and known to me to be the and of , who acknowledged the execution of the above and foregoing Commitments for and on behalf of said Witness my hand and notarial seal this _ day of 200_. Signature: Notary Public Printed: My commission expires: My county of residence is: 8 .' . E. & H. MUELLER DEVELOPMENT, LLC, an Indiana limited liability company By: Attest: Printed: Printed: Title: Title: ) )55: ) STATE OF COUNTY OF Before me, a Notary Public in and for said county and state, personally appeared and known to me to be the and of , who acknowledged the execution of the above and foregoing Commitments for and on behalf of said Witness my hand and notarial seal this _ day of 200_. Signature: Notary Public Printed: My commission expires: My county of residence is: L:\WPFILES\021330\MuellerSouthS&G\COMMITMENTS MuellerSouthS&G1.doc 9