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MARTIN MARIETTA MATERIALS. INC.
MmELLERPROPERTYSOUTH
SAND AND GRAVEL SPECIAL USE APPLICATION
Docket No. 04040024-SU
STATEMENT OF COMMITMENTS
COMmfiTMENTSCONCERMNGTHEUSEORDEVELOPMENTOFREALESTATE
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 Carmel, Hamilton
County, Indiana, which is more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the "Real Estate"). 200500006560
Filed for Record in
Statement of COMMITMENTS: HAMILTON COUNTY, INDIAHA
JEHNIFER J HAYDEN
02-02-2005 At 03=42 PM.
1. General Operational Commitments I'll SC 29.00
(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
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; (ll) 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.
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(e) 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.
(f) 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.
(g) 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. Reports and Permits
(a) Prior to commencement of any work on the Real Estate, and thereafter continuing
during the period of its performance of all work, 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.
(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 (including DOCS) following the relocation construction.
Martin Marietta will also provide monitoring reports to appropriate parties
(including DOCS) 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 Technical Advisory Committee of
DOCS (fiT 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.
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(f) Martin Marietta shall use the existing entrance on 96th Street 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 a driveway access for such purposes across the
right-of-way it is otherwise dedicating to the City. The Director is authorized to
apply such conditions to any approval of a 106th Street driveway 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.
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 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 Cannel, 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 performed by Martin
Marietta. 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
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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 cause all truck traffic hauling sand and gravel to and from
the Real Estate for processing at the Carmel Sand Plant to utilize the existing curb
cut along East 96th Street (at the point of access to its existing North Indy Quarry)
for purposes of transporting sand and gravel from the Real Estate to the Carmel
Sand Plant. No such truck traffic hauling sand and gravel shall access the Real
Estate through 106th Street or Gray Road. .
(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 pursue completion of such work
diligently.
(d) Martin Marietta shall furnish a bond in form acceptable to the Director to assure
that any damage done to that portion of 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 Creekis completed.
6. Compliance with Thoroughfare Plan
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 driveway access 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 clear of all sand, gravel and stone. There shall be an initial ninety (90) day trial
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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.
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
located in such buffer area. Martin Marietta shall construct a berm approximately
nineteen feet (191 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.
(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 (6') 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 DOeS.
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 a 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
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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.
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
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 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 DOeS.
(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 subject to amendment from time to time as deemed
necessary by the City to assure completion of the reclamation.
11. Binding Effect
These Commitments are binding on Martin Marietta as the current lessee and. E. & H.
Mueller Development, LLC ("Mueller") as the current owner of the Real Estate, 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
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Commitments may be modified or terminated only upon (a) petition by Martin Marietta or its
successor, and (b) approval by the BZA after notice and hearing pursuant to the BZA's Rules of
Procedure. Until they expire or are modified or terminated pursuant to this paragraph, these
Commitments shall be enforceable by the City of Carmel or the BZA by injunctive relief: denial
of building permits or approvals in respect of the Real Estate, or other appropriate administrative
or judicial remedy, provided that any such relief, denial, or other remedy is related to the Real
Estate and to some effects or harm from a breach or violation of these Commitments by Martin
Marietta 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 Carmel Zoning Ordinance and
the BZA's Rules of Procedure.
12. General.
(a) 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.
(b) 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.
(c) Martin Marietta shall provide access to City employees and their representatives,
including consultants, at all reasonable times for purposes of monitoring
compliance with these COMMITMENTS and any other responsibilities derived
therefrom.
These COMMITMENTS may be enforced jointly or severally by the BZA and/or the
City of Carmel.
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
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~ WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument
this ,2- day ofDceembGl, 2004.
. ~.....,., , ~
MARTIN MARIETTA MATERIALS, INC.
By:
John J
.;-~.-
President/General Manager
STATE OF INDIANA )
) SS:
COUNTY OF MARlON )
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 .:':l.'Ii h day of December, 2004. rlER;/{144fi... '/ ~oo5
~ .,.
i~ ~ ~,O( o{CV/U..e1-/
Si ature
LIIJ'PA L LAAJIt=R..
Printed NOTARY PUBLIC
My Commission Expires:
t J / IS I.:<DO '1 County of Residence:
, LINDA L lANI2R
NorARYPOBUCSTATEOF~
HAMILTON coUNTY
MY COMMISSION EXP. NOV.15~
1-1 A-11fJ I LTo iii
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INDY 1426192v13
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E. & H. MUELLER DEVELOPMENT,
LLC, an Indiana limited liability company
By. L0~~ ~
Its: w. L.:~tJ ~ T't N5R, :r"'R. -1'''' eSI det\ f
Printed Name and Title
STATE OF INDIANA )
) SS:
COUNTY OF HA/t-iIL:foN)
Before me, a Notary Public in and for said County and State, personally appeared
Lv JI, /JV{t. -,-YItIE:]2. I-:r-R. , 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. A b~ -r-(~"'"
,$i :rAN Urn-I I 'Z-oo':-C-(j - )
WITNESS my hand and Notarial Seal this 3 - day of Peeemeer, 2804,
~A1..~
Si a
S M. AIlITt2//l1
Printed NOTARY PUBLIC
My Cominission Expires: ~ '1 County of Residence: 1+ A tl1 J L-. '" N
~
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.
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INDY 1426192v13
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EXIDBIT A
REAL ESTATE DESCRIPTION
Part of the North Half of Section 9, Township 17 North, Range 4 East of the Second Principal
Meridian in Clay Township, Hamilton County, Indiana, described as follows:
Commencing at the Northwest comer of Section 9, Township 17 North, Range 4 East of the
Second Principal Meridian in Clay Township, Hamilton County, Indiana; thence South 89 degrees
55 minutes 56 seconds East (assumed bearing) on the North line of said Section 9, a distance of
1,336.18 feet to the Northwest corner of the East Half of the Northwest Quarter of said Section 9,
said corner being the PLACE OF BEGINNING of the within described real estate; thence South 00
degrees 11 minutes 12 seconds West on the West line of said East Half 1;716.00 feet; thence
South 89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a
distance of 1 ,336.01 feet to the West line of the East Half of said Section 9; thence South 00
degrees 11 minutes 33 seconds West on the West line of said East Half 156.75 feet; thence South
89 degrees 55 minutes 56 seconds East parallel with the North line of said Section 9, a distance
of 919.68 feet to the Westerly line of real estate conveyed to the City of Carmel, Indiana, by a
documented titled "Certification of Clerk" recorded in the Office ofthe Recorder of Hamilton County,
Indiana, as Instrument Number 9709754848 (the following eight courses being on the Westerly line
of said real estate); 1.) thence North 08 degrees 36 minutes 31 seconds East 885.22 feet; 2.)
thence North 02 degrees 53 minutes 53 seconds East 201.00 feet; 3.) thence North 08 degrees
36 minutes 31 seconds East 660.61 feet; 4.) thence North 29 degrees 48 minutes 29 seconds West
55.59 feet; 5.) thence North 80 degrees 51 minutes 37 seconds West 303.34 feet; 6.) thence North
89 degrees 03 minutes 10 seconds West 148.00 feet; 7.) thence North 60 degrees 14 minutes 56
seconds West 57.55 feet; 8.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet to
the North line of said Section 9, said point being 3,302.24 feet South 89 degrees 55 minutes 56
seconds East of the Southwest comer of said Section 9; thence North 89 degrees 55 minutes 56
seconds West on said North line 1 ,966.06 feet to the place of beginning, containing 96.921 acres,
more or less.
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EXHIBIT B
MASTER LIST OF MAPS AND SUBMITTALS
. Area Map (Dated March 5,2004)
. Zoning Map (Dated March 5, 2004)
. Mine Plan Map (Dated April 26, 2004)
. Reclamation Plan Map (Dated April 26, 2004)
. Landscaping Plan Map (Dated May 25, 2004)
. Cross Section Map (Dated March 5,2004)
. Groundwater Elevation Map (Dated February 10, 2003)
. Operation Time Line (Dated March 17,2004)
. Property Value Study (Dated January 30,2003)
. Erosion and Sediment Control Report (Dated June 2004)
. Sound Level Assessment (Dated September 2004)
. Groundwater and Surface Water
Monitoring Plan (Dated June 2004)
. Spill Prevention, Control and
Countermeasure Plan (SPCC) (Dated April 1, 2003)
INDY 1426192v13
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