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HomeMy WebLinkAboutCommitments Tendered by Remonstrators 08-11-04 ~ '-l Commitments Tendered by Remonstrators Partial Set rYf/t(o'f p~ Commitments Tendered bv Remonstrators-Partial Set. Based on the above analysis and argument, and the exhibits attached hereto or incorporated herein, and understanding that the DOCS will be submitting, or has by the hearing date submitted, proposed commitments that, if approved by MM and adopted by the BZA, would allow the DOCS to support the Application, the Remonstrators herewith submit their own commitments in addition to those that are likely to be submitted by others. Such submission shall not be deemed an agreement or consent to the approval of the Application or agreement or consent to any other commitments, and the Remonstrators reserve.their rights to.appeal any decision of the BZA in this matter. 1. Performance Standards. The mining at the site will be done in accordance.with the performance standards set forth in the Carmel City Code, Chapter 20B: M-1/Manufacturing District. . 2. Blastina Forbidden. No blasting shall occur at the site. 3. Traffic Routina. No truck traffic shall enter or leave the site via 106th Street. All dump trucks and heavy equipment shall enter and exit the site by means of interior roadways traversing the land owned by the Applicant/operator and shall. enter the public road system only at 96th Street. 4. Earlv Sound Protection. A protective berm shall be the first development of the site, which berm shall be designed and installed so as to eliminate noise and view from the. further development and mining of the site along 106th Street. 5. TransDortation to Processor. All raw aggregate material generated at the site shall be transported for processing by means other than by trucks. All noise associated with such transportation shall be minimized. No processing, operations, or sales of aggregate shall occur at the site. 6. Plans. Prior to commencement of work on the site, the Applicant/operator shall submit and the DOCS shall have approved a grading plan, development plan, landscaping plan, mining plan, reclamation plan, soil conservation and erosion control plan, spill prevention, control, and countermeasure plan, ~e"field protecti(:>n p-lim, 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), and such other plans as shall be reasonably required by the DOCS to ensure protection of the public health, safety, comfort, morals, convenience and general welfare (collectively, the "Plans"). 7. Plan Review. The DOCS will prOVide notice to all Remonstrators and their counsel of the filing of such Plans and a reasonable opportunity, being not fewer than. 15 nor more than 30 days, within which to submit written comments to the DOCS for its consideration. The DOCS will provide the Applicant/operator and the Remonstrators with notice of approval of any such Plans and shall indicate on such Plans that they are 29 the Plans upon which the Applicant/operator may rely for its operations. Following such approval, the Applicant/operator shall be bound by such Plans, subject to amendment in the same manner as original approval. 8. Annual Reoort. Following approval of the Plans described hereinabove, the Applicant/operator shall be bound by the terms thereof and shall submit on or before each March 1 a written report indicating the progress that has been made in the development and mining of the site. Such report shall include each instance in which the Applicant/operator may have deviated from the Plans, whether or not it believes such deviation was material, and whether or not such deviation was reported to the DOCS. The DOCS shall send written notice to the Remonstrators ofthe receipt of the report described herein and make such report available for inspection and copying by all interested parties. 9. Penaltv for Violation of Plans. In the event the DOCS determines that a deviation from the approved Plans has occurred, was not permitted, and is material, the DOCS shall have the discretion to cite the Applicant/operator for a violation of a zoning ordinance for the failure to report such deviation and to impose the maximum fine allowable under the Carmel City Code for ordinance violations. Each day the Applicant/operator fails to report the deviation from the Plans shall be deemed to be a separate violation. 10. Incorporation of Other Aoorovals. Prior to commencement of any work on the site, the Applicant/operator shall provide original approvals and permits from every other governmental agency having jurisdiction over the site and/orthe activities of the Applicant/operator, including all submittals to such governmental agencies, and shall include all specifications and restrictions contained in such submittals, approvals; and permits within the Plans submitted to the DOCS for approval. 11. Reclamation Plan. In recognition of the interrelation of the various mines operated by the Applicant/operator in the past, being operated presently, and to be operated in the future, the reclamation plan shall include all of the land mined or proposed to be mined by the Applicant/operator within the land bounded by 106th Street on the north, Hazel Dell Parkway on the east, 96th Street on the south, and Gray Road on the west, and shall require the consolidation of the fee simple title to all such land into one ownership, except the small portion of such property retained 6y E. & H. Mueller Development, LLC at the southwest comer of Hazel Dell Parkway and 106th Street, prior to the completion of mining at the site or abandonment of the mine, whichever shall first occur. 12. Financial Securitv. Prior to commencement of any work on the site, and at all times thereafter, the Applicant/operator 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 mining sites described in the preceding commitment in accordance with the reclamation part of the Plans. The form and amount of the Financial Security shall be subject to the 30 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 change the issuer of the Financial Security, change the form of Financial Security, and increase the amount of the Financial Security as the DOCS shall deem necessary to protect the City of Carmel and assure the completion of the reclamation plan as it may exist from time to time. 13. Pavments From Financial Security. 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 Applicant/operator or any creditors or bankruptcy trustee of the Applicant/operator. The City of Carmel shall use all funds so received for the purpose of reclaiming the site in the event of default by the Applicant/operator and for the payment of any mitigation costs incurred by the City of Carmel resulting from the operation of the mine on the site or caused by the acts, omissions, or negligence by the Applicant/operator, 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 Hmitation, defenses raised by the Applicant/operator. 14. Assianment and Continuina Liabilitv. The Applicant/operator shall have the right to sell or transfer the mine, the mineral rights owned by the Applicant/operator, and/or its leasehold rights in the site; provided, however, that the Applicant/operator shall not be relieved of any responsibility under these commitments in the event of . . default by the transferee, and the transferee of the Applicant/operator's interest in the site shall be subject to all of these commitments, including the rights of the City of Carmel. These commitments shall apply to the present owner of the site, the Applicant/operator, and all transferees, assignees, successors, personal representatives, creditors in possession, trustees, and all other entities and individuals who may receive all or any part of the title to the site described within the reclamation plan. The owner of the site and the Applicant/operator shall be jointly and severally / liable for each of the commitments set forth herein and, for purposes of interpretation Ofe~ these commitments, the term "Applicant/operator" shall include the owner of the site. ~ ' ^ ,I. 15. Enforcement of Commitments. The DOCS shall have the right to frl ' ~ enforce each of these commitments. Except for such provisions as provide specific r~~f' rights to the DOCS and the City of Carmel, all Remonstrators and residents of the ~. I Kingswood subdivision shall have the right to enforce these commitments. Further, in the event a Remonstrator or resident of the Kingswood subdivision reasonably believes that the DOCS or the City of Carmel is not performing its duties properly, such person shall have standing to bring a civil action against the Applicant/operator and/or the City of Carmel to enforce these commitments. 31 '- ~ ... " '\ . 16. Control of Water bv Carmel. The Applicant/operator hereby submits to the jurisdiction of the City of Carmel for purposes of enforcing these commitments, regulating underground water, surface water drainage, recycling of water, pumping of water. within the properties owned by Applicant/operator, water quality, reintroduction of water to the aquifer north and west of the site, and such other issues of public health as the City of Carmel shall reasonably deem to be within its jurisdiction. 17. Water Monitorina and Reports. The DOCS is hereby granted the power by the Applicant/operator to require the Applicant/operator to provide or pay for such experts' reports on water flows, water levels, water quality, water recycling, aquifer management and control, drainage, and other matters involving the management of the waters located within the City of Carmel as the DOCS shall reasonably believe appropriate from time to time, to the extent they involve the site, the aquifer serving the site, the wellfield capture area of Plant 4 of the Carmel water system, or any other property to which the water entering the site might migrate or be pumped. 18. Other Monitoring and Reports. The DOCS is hereby granted the power by the Applicant/operator to require the Applicant/operator to provide or pay for such traffic studies and reports, dust monitoring, and noise monitoring and reports as the DOCS shall reasonably believe appropriate from time to time. 19. Neiahborhood Meetinas. The Applicant/operator and the DOCS shall meet monthly, at a time and placeset by the DOCS during regular business hours, with any and. all citizens who have comments, questions, suggestions, or criticisms with respect to the design, management, or operation of the mine on the site and who shall have -requested such meeting. The DOCS may, but shall not be obligated to, act upon information received in such meetings. 32