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HomeMy WebLinkAboutCommitments Versions 5, 7 & 8 r , "T' ~'"' MARTIN MARlETT A MATERIALS. INC. MUELLER PROPERTY NORTH SAND AND GRAVEL SPECIAL USE APPLICATION Docket No. 05010021 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 northwest comer of the intersection 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"). Statement of COMMITMENTS: 1. General Operational Commitments (a) Martin Marietta will develop a sand and gravel operation on the Real Estate to commence in 2005 and continue for approximately 8 to 14 years, depending on market conditions. Provided, however, that this permit shall expire 18 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 Carmel (the "City") within seven (7) days of such commencement. Within ten (10) business davs followinl! the aooroval of Docket No. 05010021 SU bv the BZA. Martin Marietta shall oetition the BZA. and otherwise take all action reasonablv within its control to have the time limits on the Mueller South Soecial Use oermit for the comoletion of mininl! modified. If granted an extension by the Board of Zoning Appeals of the time to complete mining on Mueller South, Martin Marietta agrees to commence mining activities upon the Mueller North Real Estate in 2005 and to mine substantially all of its requirements for sand and gravel from Mueller North or the area on which the Carmel Sand Plant is located until reserves are exhausted on the Real Estate and the Carmel Sand Plant area. Subject to the Carmel/Clay Board of Zoning Appeals ("BZA") extension of time to mine the property commonly known as Mueller South, located on the south side of East 1 06th Street west of Hazel Dell Parkway, Carmel, Indiana ("Mueller South"), after completion of the mining on the Real Estate, Martin Marietta agrees to then completely mine the remaining sand and gravel reserves on its Carmel Sand Plant property (located north of the Real Estate) until reserves on such property arc exhausted. Martin Marietta shall not commence extraction on Mueller South until the sand and gravel reserves on the Real Estate and Carmel Sand Plant property are exhausted. Provided, however, Martin Marietta reserves the right to continue to mine Mueller South as necessary to maintain the validity of its permits, or in the event of an equipment breakdown INDY I 548355v4~ or other occurrence that interrupts the supply of feed material or the processing or storage of such material. (b) The hours of operation for the extraction of sand and gravel will be 6:00 A.M. to 9:00 P.M., Monday through Friday, and from 8:00 A.M. to 2:00 P.M. on Saturdays, except that the weighing and load out of materials for shipment shall be further limited to the hours of 6:00 a.m. to 6:30 p.m. Monday through Friday. No operations are permitted on Sunday or holidays. (c) Extraction operations may be conducted outside these hours only (i) to supply materials for inclusion in a public (state, federal or municipal) project; (ii) to respond to an emergency involving a matter of public interest that requires the immediate use of Martin Marietta's materials, such as by way of illustration, flooding or emergency road or structural repair; 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 as identified as section (iii) above 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. (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. (t) No blasting shall occur on the Real Estate unless otherwise approved by the BZA under a future petition. (g) Within ten (10) business days following the approval of Docket No. 05010021 SU by the BZA, Martin Marietta shall petition the BZA, and otherwise t(!.ke all action reasonably within its control, to cause a remand of Docket No. UV -2302, which was decided by the BZA on May 28, 2002, and which is the subject of an appeal by Martin Marietta pursuant to a cause now pending before the Hamilton Superior Court No. 2 in Cause No. 29D02 0206 PL 510 styled as Martin Marietta Materials, Inc. v. Carmel/Clay Board of Zoning Appeals, et al so as to bring back to the BZA for reconsideration its petition to relocate its Carmel Sand Plant to a site on the east side of Hazel Dell Parkway,-aE:El-. If. for anv reason the anneal is not remanded to the BZA for reconsideration. Martin Marietta aQ.rees to submit a new annlication to the Board for the relocation of the nlant to the east side of Hazel Dell Parkwav on no less than the same commitments made bv it in the 2002 2 INDY I548355v4,l aoolication and thereafter to use its best efforts to obtain the aooroval of such relocation. Martin Marietta aQrees not to extract sand or Qravel from Mueller North until such time as the BZA has had at least one meetinQ at which to consider either the remanded aoolication. or a new aoolication. This condition shall not orevent Martin Marietta from commencinQ site work on Mueller North. Martin Marietta further agrees that in the cvcntif said Docket No. UV -2302 is remanded and approved by the BZA, Martin Marietta shall relocate such plant during the winter of 2005-06 pursuant to the site plan and any related commitments so approved by the BZA. Further, upon the relocation of such Carmel Sand Plant, and subject to obtaining all necessary permits in respect thereof, Martin Marietta agrees to make reasonable efforts to relocate the stockpiles of its materials adjacent to the relocated Carmel Sand Plant so as to attenuate sound from the relocated processing and sales operations related thereto. Upon approval of the relocation of the Carmel Sand Plant, Martin Marietta shall be relieved from its obligation under the approval of Docket No. 04040024-SU to provide a northbound left turn lane into the existing Carmel Sand Plant entrance along Hazel Dell Parkway. (h) Martin Marietta agrees that, so long as it has available, permitted and mineable reserves on its Mueller North or Mueller South sites, it will not import sand and gravel materials from sites other than (a) its sites commonly referred to as North Indianapolis, 96th Street or Carmel Sand for processing at the Carmel Sand Plant; and (b) its Kokomo plant for masonry sand. Provided, however, that this shall not prevent the occasional importation of material from other sites on an infrequent basis not to exceed ten (10) days in any given month and no more than sixty (60) days in total for any calendar year. Further, Martin Marietta shall be allowed to import material on an emergency basis due to an interruption in the supply of material from its existing Carmel sites, such as by way of a dredge, pump, or other malfunction or breakdown. This limitation shall expire when Martin Marietta no longer has available, permitted and mineable reserves on its Mueller North and Mueller South sites. 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. 05010021 SU, Martin Marietta 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 site reclamation. DOCS shall make the report available for inspection and copying by all interested parties. Martin Marietta shall be entitled to submit a single, combined report for its Mueller North and Mueller South sites. 3 INDY 1548355v4~ ( c) 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. (d) Martin Marietta shall use the existing Carmel Sand Plant entrances on Hazel Dell Parkway 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. 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 South property. The Director is authorized to apply such conditions to any approval as he deems reasonable. ' (e) The berm specified along the perimeter of the property as identified on the site mine plan 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 agrees to modify the existing water quality monitoring plan adopted in connection with the approval of sand and gravel mining on Mueller South to, among other things, relocate actual or proposed monitoring wells to sites specified by the Utilities Department. Further, 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 North Sand and Gravel Operation Carmel, Indiana," dated ApRlMav, 2005, and previously submitted to the 4 INDY 1548355v4~ Department. Martin Marietta agrees to pay for the monitoring and activities proposed to be done by Martin Marietta in the said ApRlMav, 2005 report. 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. 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. Additionallv. Martin Marietta will notifv the Citv Utilities Department as to the date of the annual trainilll! as orescribed bv the Spill Prevention. Control. and Countermeasure Plan dated Aoril 2003 such that a Utilities reoresentative can attend and/or participate in the training:. 5. Compliance with Thoroughfare Plan Martin Marietta will dedicate or cause to be dedicated a forty-five foot half right-of-way for the north side of 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 South Property as referenced in paragraph 2( d) above. 6. Buffers and Screening (a) A buffer area of approximately 300 feet in width will be maintained along the northern and western permit boundaries adjacent to Carmelot Park and the Kingswood neighborhood. Martin Marietta shall construct a temporary berm approximately II' to 15' in height. The berm shall be landscaped as provided in the submittals and, adjacent to the property line adjoining the Kingswood neighborhood, a six-foot (6') high black chain-link fence shall be built just north of the berm as shown on the submittals. Additionally, the twenty-five foot (25') wide tree planting area along the northern and western permit boundaries will be installed prior to the overburden removal. (b) A seeded berm along the northern boundary of 106th Street approximately 6' to 10' in height will be constructed. (c) All landscaping will be completed and maintained consistent with the Landscaping Plan Map, a copy of which is on file in the Office of DOCS, except as modified in (a) above. 7. 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, Carmel Utilities and in the Office of DOCS. 5 INDY 1548355v4~ (c) Martin Marietta will maintain an approved Storm water 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 on the Mueller North property and further agrees voluntarily to apply this condition to its Carmel Sand plant. 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 (60) 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 require that it be utilized if commercially available. Provided, however, that all such safety measures shall conform to all laws and regulations and safety standards then extant with regard to back up protections. 8. Reclamation (a) Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim the Real Estate as a Lake with (i) slopes no steeper than 3 to I 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. I (b) All reclamation shall comply generally with the reclamation guidelines adopted by the Indiana Mineral Aggregates Association and will be completed consistent with the Reclamation Plan Map, a copy of which is on file in the Office of DOCS. (c) 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. (d) Martin Marietta and the owners of the Real Estate agree that none of the Real Estate between the mined area (reclaimed as a lake) and (a) any adjacent Kingswood property; (b) Carmelot Park; and (c) lO~th Street ("buffer area") shall be used for any use other than open space, conservation or reclamation. Such buffer area shall be perpetually preserved as natural undeveloped open space to: (i) protect such property's natural and watershed values, (ii) protect and retain quality habitat for native plants and animals and (iii) maintain and enhance the natural features of the property. Any uses which interfere with or which are 6 INDY I548355v4~ inconsistent with such natural undeveloped open space use (e.g., commercial or residential development) are expressly prohibited and no structures will be placed in the buffer area. The foregoing provisions of this Section 8( d) shall also be contained in any deed conveying an interest in the Real Estate as a deed restriction. 9. 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, unless modified or terminated by the BZA or its successor pursuant to this paragraph. These 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 arid 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. 10. General. (a) In all matters where a representative of the City is given discretion to order studies or take action, such representative shall do so reasonably and shall not require the doing of any act or the expenditure of money for arbitrary or capnclOUS reasons. (b) This approval is specific to the Martin Marietta proposal for the mining of sand and gravel on the Mueller North parcel only, and in no way implies that the BZA has reviewed, condoned, or approved any aspect of any other application for mining 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 there from. 7 INDY ] 548355v4~ 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. 05010021 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. 05010021 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. 05010021 SUo IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument this day of May, 2005. MARTIN MARIETTA MATERIALS, INC. By: John J. Tiberi Regional Vice President/General Manager MidAmerica Region 8 INDY 1548355v4~ 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 Regional Vice President/General Manager, MidAmerica Region, 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 May, 2005. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: 9 INDY ]548355v4~ . I ' ; . 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 May, 2005. 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 82001, Indianapolis, Indiana, 46282-0200, Telephone (317) 236-2319. 10 INDY 1548355v4~ EXHIBIT A REAL ESTATE DESCRIPTION legal DescrlDtlon Part of the South Half of Section 4, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana, described as follows: Beginning at the Southwest corner of Section 4, 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 South line of said Section 4, a distance of 3,302.24 feet to the Westerly line of real estate conveyed to the City of Carmel, Indiana, by a document titled "Certification of Clerk" recorded in the Office of the Recorder of Hamilton County, Indiana, as Instrument Number 9709754848; (the following seven courses being on the Westerly line of said real estate) 1.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet; 2.) thence North 60 degrees 23 minutes 05 seconds East 57.55 feet; 3.) thence North 89 degrees 50 minutes 43 seconds East 254.47 feet; 4.) thence South 81 degrees 22 minutes 39 seconds East 198.24 feet; 5.) thence North 25 degrees 45 minutes 13 seconds East 826.18 feet; 6.) thence North 21 degrees 15 minutes 23 seconds East 576.29 feet; 7.) thence North 07 degrees 37 minutes 09 seconds East 180.00 feet to a point on a line that is parallel with the South line of said Section 4, and extends Easterly from a point on the East line of the Southwest Quarter of said Section 4 that is 154.10 feet North of the Southeast corner of the North Half of said Southwest Quarter; thence North 89 degrees 55 minutes 56 seconds West on said line 1,718.86 feet to the aforesaid point on the East line of said Southwest Quarter, being also the East line of KINGSWOOD SUBDIVISION, SECTION THREE, a subdivision in Hamilton County, Indiana, the Secondary Plat of which, as amended December 22, 1988, is recorded in said Recorder's Office as Instrument Number 8900204 on pages 111 and 112 of Plat Book 16; thence South 00 degrees 07 minutes 43 seconds West on the East line of said Southwest Quarter 154.10 feet to the Southeast corner of the North Half of said Southwest Quarter; thence North 89 degrees 51 minutes 18 seconds West on the South line of the North Half of said Southwest Quarter 1,521.03 feet to the Northeast corner of real estate conveyed to the City of Carmel, Indiana, per a Deed recorded in the Office of the Recorder of Hamilton County, Indiana, on page 865 of Deed Record 329, said corner being 1,146.65 feet East of the Northwest corner of the South Half of said Southwest Quarter; thence South 00 degrees 27 minutes 42 seconds West on the East line of said real estate 918.75 feet, per the aforesaid deed, (919.89 feet by measurement) to the Southeast corner of said real estate, said corner lying on a line that extends South 89 degrees 51 minutes 29 seconds East, measured parallel with the North line of South Half of said Southwest Quarter from a point on the West line of said Southwest Quarter that is 406.45 feet North of the Southwest corner of said Section 9; thence North 89 degrees 51 minutes 29 seconds West on said line and the Westerly prolongation thereof, a total distance of 1 ,145.58 feet, per the aforesaid deed, (1, 144.55 feet, by measurement) to the aforesaid point on the West line of said Southwest Quarter, said point being also the Southwesterly corner of real estate conveyed to the City of Carmel, Indiana, by a Warranty Deed recorded in said Recorder's Office as Instrument Number 8726638; thence South 00 degrees 19 minutes 51 seconds West on the West line of the Southwest Quarter of said Section 9, a distance of 406.45 feet to the place of beginning, containing 105.981 acres, more or less. INDY I 548355v4~ EXHIBIT B MASTER LIST OF MAPS AND SUBMITTALS . Area Map (Dated January 28,2005) . Zoning Map (Dated January 28, 2005) . Mine Plan Map (Dated February 25,2005) . Reclamation Plan Map (Dated January 28, 2005) . Landscaping Plan Map (Dated May 5, 2005) . Cross Section Map (Dated May 5, 2005) . Erosion and Sediment Control Report (Dated January 2005) . Sound Level Assessment (Dated January 2005) . Groundwater and Surface Water Monitoring Plan (Dated April 2005) . Spill Prevention, Control and Countermeasure Plan (SPCC) (Dated May 2005) INDY 1548355v4~ Document com arison done b DeltaView on Tuesda Input: Document 1 Document 2 Renderin set cdocs:llind /1548355/4 pcdocs://ind /1548355/5 1M Legend: Insertion Deletion Moved from Moved to Style change Format change Moved deletion I nserted cell Deleted cell Moved cell SpliUMerqed cell Paddinq cell Statistics:' 7, c , Count Insertions 12 Deletions 9 Moved from 0 Moved to 0 Stvle chanqe 0 Format chanqed 0 Total chanqes 21 MARTIN MARIETTA MATERIALS. INC. MUELLER PROPERTY NORTH SAND AND GRAVEL SPECIAL USE APPLICATION Docket No. 05010021 SU ~ --- ~tCt\'Jt.\) ~ - ~~" \ () ?\)\)~ y)OCS '~" 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 northwest comer of the intersection 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"). Statement of COMMITMENTS: 1. General Operational Commitments (a) Martin Marietta will develop a sand and gravel operation on the Real Estate to commence in 2005 and continue for approximately 8 to 14 years, depending on market conditions. Provided, however, that this permit shall expire 18 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 Carmel (the "City") within seven (7) days of such commencement. Within ten (10) business days following the approval of Docket No. 05010021 SU by the BZA, Martin Marietta shall petition the BZA, and otherwise take all action reasonably within its control to have the time limits on the Mueller South Special Use permit for the completion of mining modified. If granted an extension by the Board of Zoning Appeals of the time to complete mining on the property commonly known as Mueller South, located on the south side of East 106th Street west of Hazel Dell Parkway, Carmel, Indiana ("Mueller South"), Martin Marietta agrees to commence mining activities upon the Mueller North Real Estate in 2005 and to mine substantially all of its requirements for sand and gravel from Mueller North or the area on which the Carmel Sand Plant is located beginning in 2006 and until reserves are exhausted on the Real Estate and the Carmel Sand Plant area. Subject to the Carmel/Clay Board of Zoning Appeals ("BZA") extension of time to mine Mueller South, Martin Marietta shall not commence extraction on Mueller South until the sand and gravel reserves on the Real Estate and Carmel Sand Plant property are exhausted. Provided, however, Martin Marietta reserves the right to continue to mine Mueller South in 2005, and as necessary to maintain the validity of its permits, or in the event of an equipment breakdown or other occurrence that interrupts the supply of feed material or the processing or storage of such material. INDY 1548355v-1li. (b) The hours of operation for the extraction of sand and gravel will be 6:00 a.m. to 9:00 p.m., Monday through Friday, and from 8:00 a.m. to 2:00 p.m. on Saturdays, except that the weighing and load out of materials for shipment shall be further limited to the hours of 6:30 a.m. to 6:30 p.m. Monday through Friday and from 8:00 a.m. to 2:00 p.m. Saturdays. No operations are permitted on Sunday or holidays. (c) Extraction operations may be conducted outside these hours only (i) to supply materials for inclusion in a public (state, federal or municipal) project; (ii) to respond to an emergency involving a matter of public interest that requires the immediate use of Martin Marietta's materials, such as by way of illustration, flooding or emergency road or structural repair; 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 project as identified in sections (i) or (iii) above shall not exceed thirty (30) days in 2006, and fifteen (15) calendar days in any successive calendar year. Provided, however, that days not used in any calendar year may be carried forward and aggregated with any successive year, up to a maximum of seventy-five (75) days that can be aggregated and used as exceptions to the hours of operations in any one 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 ofthe work. (d) Overburden removal shall be completed during the hours of 7:00 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. ( 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 BZA under a future petition. (g) Within ten (10) business days following the approval of Docket No. 05010021 SU by the BZA, Martin Marietta shall petition the BZA, and otherwise take all action reasonably within its control, to cause a remand of Docket No. UV -2302, which was decided by the BZA on May 28, 2002, and which is the subject of an appeal by Martin Marietta pursuant to a cause now pending before the Hamilton Superior Court No. 2 in Cause No. 29D02 0206 ~L 510 styled as Martin Marietta Materials, Inc. v. Carmel/Clay Board of Zoning Appeals, et al so as to bring back to the BZA for reconsideration its petition to relocate its Carmel Sand Plant to a site on the east side of Hazel Dell Parkway. If, for any reason the appeal is not remanded to the BZA for reconsideration, Martin Marietta agrees to submit a new 2 INDY 1548355v1ji application to the Board for the relocation of the plant to the east side of Hazel Dell Parkway on no less than the same Itments made by it In 002 application and thereafter to use its st efforts to obtain the approval of su relocation. Martin Marietta agre / not to extract sand or gravel from Mueller North until such time as the B..' has 4.!:!Jy.considered and 'loted l:lpon~Hh.~! the remanded application, or a w application and made their decision. This condition shall not prevent in Marietta from commencing site work on Mueller North. Martin Marie a er agrees that if said Docket No. UV -2302 is remanded and approved by the B , Martin Marietta shall relocate such plant during the winter of 2005-06 pur t to the site plan and any re a commitments so approved by the BZA~ u on the r . of such Carmel Sand Plant, and subject to obtaining all necessary permits in respect thereof, Martin Marietta agrees to make reasonable efforts to relocate the stockpiles of its materials adjacent to the relocated Carmel Sand Plant so as to attenuate sound from the relocated processing and sales operations related thereto. Upon approval of the relocation of the Carmel Sand Plant, Martin Marietta shall be relieved from its obligation under the approval of Docket No. 04040024-SU to provide a northbound left turn lane into the existing Carmel Sand Plant entrance along Hazel Dell Parkway. (h) Martin Marietta agrees that, so long as it has available, permitted and mineable reserves on its Mueller North or Mueller South sites, it will not import sand and gravel materials from sites other than (a) its sites commonly referred to as North Indianapolis, 96th Street or Carmel Sand for processing at the Carmel Sand Plant; and (b) its Kokomo plant for masonry sand. Provided, however, that this shall not prevent the occasional importation of material from other sites on an infrequent. basis not to exceed ten (10) days in any given month and no more than sixty (60) days in total for any calendar year. Further, Martin Marietta shall be allowed to import material on an emergency basis due to an interruption in the supply of material from its existing Carmel sites, such as by way of a dredge, pump, or other malfunction or breakdown. This limitation shall expire when Martin Marietta no longer has available, permitted and mineable reserves on its Mueller North and Mueller South sites. 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. 05010021 SU, Martin Marietta 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 site reclamation. DOCS shall make the report available for inspection and copying by 3 INDY 1548355v+.!!. all interested parties. Martin Marietta shall be entitled to submit a single, combined report for its Mueller North and Mueller South sites. (c) The maps, submittals, and undertakings in the TAC 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. (d) Martin Marietta shall use the existing Carmel Sand Plant entrances on Hazel Dell Parkway 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. 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 South property. The Director is authorized to apply such conditions to any approval as he deems reasonable. (e) The berm specified along the perimeter of the property as identified on the site mine plan 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 agrees to modify the existing water quality monitoring plan adopted in connection with the approval of sand and gravel mining on Mueller South to, among other things, relocate actual or proposed monitoring wells to sites specified by the Utilities Department. Further, Martin Marietta will cooperate with the City Utilities Department (the "Department") in the development of a water quality monitoring program acceptable to the 4 INDY 1548355v+Q. Department. Martin Marietta's proposal in that regard is contained in the document titled "Groundwater and Surface Water Monitoring Plan for the Mueller Property North Sand and Gravel Operation Carmel, Indiana," dated May, 2005, and previously submitted to the Department. Martin Marietta agrees to pay for the monitoring and activities proposed to be done by Martin Marietta in the said May, 2005 report. 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. 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. Additionally, Martin Marietta will notify the City Utilities Department as to the date of the annual training as prescribed by the Spill Prevention, Control, and Countermeasure Plan dated April 2003 such that a Utilities representative can attend and/or participate in the training. 5. Compliance with Thoroughfare Plan Martin Marietta will dedicate or cause to be dedicated a forty-five foot half right-of-way for the north side of 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 South Property as referenced in paragraph 2( d) above. 6. Buffers and Screening (a) A buffer area of approximately 300 feet in width will be maintained along the northern and western permit boundaries adjacent to Carmelot Park and the Kingswood neighborhood. Martin Marietta shall construct a temporary berm approximately 11' to 15' in height. The berm shall be landscaped as provided in the submittals and, adjacent to the property line adjoining the Kingswood neighborhood, a six-foot (6') high black chain-link fence shall be built just north of the berm as shown on the submittals. Additionally, the twenty-five foot (25') wide tree planting area along the northern and western permit boundaries will be installed prior to the overburden removal. (b) A seeded berm along the northern boundary of 106th Street approximately 6' to 10' in height will be constructed. (c) All landscaping will be completed and maintained consistent with the Landscaping Plan Map, a copy of which is on file in the Office of DOCS, except as modified in (a) above. 7. 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. 5 INDY 1548355v+Sl (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, Carmel Utilities 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 on the Mueller North property and further agrees voluntarily to apply this condition to its Carmel Sand plant. 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, to be used for operations after sundown and before sunrise in place of back-up alarms. These strobes shall be installed within sixty (60) 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 require that it be utilized if commercially available. Provided, however, that all such safety measures shall conform to all laws and regulations and safety standards then extant with regard to back up protections. 8. Reclamation (a) Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim the Real Estate as a Lake 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 concurrent reclamation plan will be employed to the extent possible. (b) All reclamation shall comply generally with the reclamation guidelines adopted by the Indiana Mineral Aggregates Association and will be completed consistent with the Reclamation Plan Map, a copy of which is on file in the Office of DOCS. (c) 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. (d) Martin Marietta and the owners of the Real Estate agree that none of the Real Estate between the mined area (reclaimed as a lake) and (a) any adjacent Kingswood property; (b) Carmelot Park; and (c) 106th Street ("buffer area") shall be used for any use other than open space, conservation or reclamation. Such buffer area shall be perpetually preserved as natural undeveloped open space to: 6 INDY 1548355v+ji (i) protect such property's natural and watershed values, (ii) protect and retain quality habitat for native plants and animals and (iii) maintain and enhance the natural features of the property. Any uses which interfere with or which are inconsistent with such natural undeveloped open space use (e.g., commercial or residential development) are expressly prohibited and no structures will be placed in the buffer area. The foregoing provisions of this Section 8( d) shall also be contained in any deed conveying an interest in the Real Estate as a deed restriction. 9. 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, unless modified or terminated by the BZA or its successor pursuant to this paragraph. These 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. 10. General. (a) In all matters where a representative of the City is given discretion to order studies or take action, such representative shall do so reasonably and shall not require the doing of any act or the expenditure of money for arbitrary or capnClOUS reasons. (b) This approval is specific to the Martin Marietta proposal for the mining of sand and gravel on the Mueller North parcel only, and in no way implies that the BZA has reviewed, condoned, or approved any aspect of any other application for mining 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, boardwrules, local ordinances, or otherwise. 7 INDY 1548355v+~ (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 there from. 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. 05010021 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. 05010021 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. 05010021 SUo IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument this day of May, 2005. MARTIN MARIETTA MATERIALS, INC. By: John J. Tiberi Regional Vice President/General Manager MidAmerica Region 8 INDY 1548355v+.li 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 Regional Vice President/General Manager, MidAmerica Region, 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 May, 2005. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: 9 INDY 1548355v:;Zli. 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 May, 2005. 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 82001, Indianapolis, Indiana, 46282-0200, Telephone (317) 236-2319. 10 INDY 1548355v+.li EXHIBIT A REAL ESTATE DESCRIPTION Legal DescrlDtlon Part of the South Half of Section 4. Township 17 North. Range 4 East of the Second Principal Meridian in Clay Township. Hamilton County. Indiana. described as follows: Beginning at the Southwest corner of Section 4, 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 South line of said Section 4. a distance of 3,302.24 feet to the Westerly line of real estate conveyed to the City of Carmel. Indiana. by a document titled "Certification of Clerk" recorded in the Office of the Recorder of Hamilton County. Indiana. as Instrument Number 9709754848; (the following seven courses being on the Westerly line of said real estate) 1.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet; 2.) thence North 60 degrees 23 minutes 05 seconds East 57.55 feet; 3.) thence North 89 degrees 50 minutes 43 seconds East 254.47 feet; 4.) thence South 81 degrees 22 minutes 39 seconds East 198.24 feet; 5.) thence North 25 degrees 45 minutes 13 seconds East 826.18 feet; 6.) thence North 21 degrees 15 minutes 23 seconds East 576.29 feet; 7.) thence North 07 degrees 37 minutes 09 seconds East 180.00 feet to a point on a line that is parallel with the South line of said Section 4. and extends Easterly from a point on the East line of the Southwest Quarter of said Section 4 that is 154.10 feet North of the Southeast corner of the ,North Half of said Southwest Quarter; thence North 89 degrees 55 minutes 56 seconds West on said line 1,718.86 feet to the aforesaid point on the East line of said Southwest Quarter, being also the East line of KINGSWOOD SUBDIVISION, SECTION THREE. a subdivision in Hamilton County, Indiana. the Secondary Plat of which, as amended December 22. 1988. is recorded in said Recorder's Office as Instrument Number 8900204 on pages 111 and 112 of Plat Book 16; thence South 00 degrees 07 minutes 43 seconds West on the East line of said Southwest Quarter 154.10 feet to the Southeast corner of the North Half of said Southwest Quarter; thence North 89 degrees 51 minutes 18 seconds West on the South line of the North Half of said Southwest Quarter 1.521.03 feet to the Northeast corner of real estate conveyed to the City of Carmel, Indiana, per a Deed recorded in the Office of the Recorder of Hamilton County. Indiana, on page 865 of Deed Record 329, said corner being 1,146.65 feet East of the Northwest corner of the South Half of said Southwest Quarter; thence South 00 degrees 27 minutes 42 seconds West on the East line of said real estate 918.75 feet, per the aforesaid deed, (919.89 feet by measurement) to the Southeast corner of said real estate, said corner lying on a line that extends South 89 degrees 51 minutes 29 seconds East, measured parallel with the North line of South Half of said Southwest Quarter from a point on the West line of said Southwest Quarter that is 406.45 feet North of the Southwest corner of said Section 9; thence North 89 degrees 51 minutes 29 seconds West on said line and the Westerly prolongation thereof, a total distance of 1,145.58 feet, per the aforesaid deed, (1,144.55 feet, by measurement) to the aforesaid point on the West line of said Southwest Quarter, said point being also the Southwesterly corner of real estate conveyed to the City of Carmel, Indiana, by a Warranty Deed recorded In said Recorder's Office as Instrument Number 8726638; thence South 00 degrees 19 minutes 51 seconds West on the West line of the Southwest Quarter of said Section 9, a distance of 406.45 feet to the place of beginning, containing 105.981 acres. more or less. INDY 1548355v+~ EXHIBIT B MASTER LIST OF MAPS AND SUBMITTALS . Area Map (Dated January 28,2005) . Zoning Map (Dated January 28, 2005) . Mine Plan Map (Dated February 25,2005) . Reclamation Plan Map (Dated January 28,2005) . Landscaping Plan Map (Dated May 5, 2005) . Cross Section Map (Dated May 5, 2005) . Erosion and Sediment Control Report (Dated January 2005) . Sound Level Assessment (Dated January 2005) . Groundwater and Surface Water Monitoring Plan (Dated April 2005) . Spill Prevention, Control and Countermeasure Plan (SPCC) (Dated May 2005) INDY 1548355v+~ \. Count 7 6 o o o o 13 ..- MARTIN MARIETTA MATERIALS. INC. MUELLER PROPERTY NORTH SAND AND GRAVEL SPECIAL USE APPLICATION Docket No. 05010021 SU bt ~tCt.\\!t.\> . p-..,r\,~, j'0~ \ \} L\ivJ . UOCS ! . 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 northwest comer of the intersection 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"). Statement of COMMITMENTS: 1. General Operational Commitments (a) Martin Marietta will develop a sand and gravel operation on the Real Estate to commence in 2005 and continue for approximately 8 to 14 years, depending on market conditions. Provided, however, that this permit shall expire 18 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 Carmel (the "City") within seven (7) days of such commencement. Within ten (10) business days following the approval of Docket No. 05010021 SU by the BZA, Martin Marietta shall petition the BZA, and otherwise take all action reasonably within its control to have the time limits on the Mueller South Special Use permit for the completion of mining modified. If granted an extension by the Board of Zoning Appeals of the time to complete mining on the property commonly known as Mueller South, located on the south side of East 106th Street west of Hazel Dell Parkway, Carmel, Indiana ("Mueller South"), Martin Marietta agrees to commence mining activities upon the Mueller North Real Estate in 2005 and to mine substantially all of its requirements for sand and gravel from Mueller North or the area on which the Carmel Sand Plant is located beginning in 2006 and until reserves are exhausted on the Real Estate and the Carmel Sand Plant area. Subject to the Carmel/Clay Board of Zoning Appeals ("BZA") extension of time to mine Mueller South, Martin Marietta shall not commence extraction on Mueller South until the sand and gravel reserves on the Real Estate and Carmel Sand Plant property are exhausted. Provided, however, Martin Marietta reserves the right to continue to mine Mueller South in 2005, and as necessary to maintain the validity of its permits, or in the event of an equipment breakdown or other occurrence that interrupts the supply of feed mat~rial or the processing or storage of such material.d INDY 1548355v8 r- (b) The hours of operation for the extraction of sand and gravel will be 6:00 a.m. to 9:00 p.m., Monday through Friday, and from 8:00 a.m. to 2:00 p.m. on Saturdays, except that the weighing and load out of materials for shipment shall be further limited to the hours of 6:30 a.m. to 6:30 p.m. Monday through Friday and from 8:00 a.m. to 2:00 p.m. Saturdays. No operations are permitted on Sunday or holidays. (c) Extraction operations may be conducted outside these hours only (i) to supply materials for inclusion in a public (state, federal or municipal) project; (ii) to respond to an emergency involving a matter of public interest that requires the immediate use of Martin Marietta's materials, such as by way of illustration, flooding or emergency road or structural repair; 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 project as identified in sections (i) or (iii) above shall not exceed thirty (30) days in 2006, and fifteen (15) calendar days in any successive calendar year. Provided, however, that days not used in any calendar year may be carried forward and aggregated with any successive year, up to a maximum of seventy-five (75) days that can be aggregated and used as exceptions to the hours of operations in any one 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 7:00 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. (e) Martin Marietta's acceptance ofthe 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 BZA under a future petition. (g) Within ten (10) business days following the approval of Docket No. 05010021 SU by the BZA, Martin Marietta shall petition the BZA, and otherwise take all action reasonably within its control, to cause a remand of Docket No. UV -2302, which was decided by the BZA on May 28, 2002, and which is the subject of an appeal by Martin Marietta pursuant to a cause now pending before the Hamilton Superior Court No. 2 in Cause No. 29D02 0206 PL 510 styled as Martin Marietta Materials, Inc. v. Carmel/Clay Board o/Zoning Appeals, et al so as to bring back to the BZA for reconsideration its petition to relocate its, Carmel Sand Plant to a site on the east side of Hazel Dell Parkway. If, for any reason the appeal is not remanded to the BZA for reconsideration, Martin Marietta agrees to submit a new 2 INDY 1548355v8 application to the Board for the relocation of the plant to the east side of Hazel Dell Parkway on no less than the same commitments made by it in the 2002 application and thereafter to use its best efforts to obtain the approval of such relocation. Martin Marietta agrees not to extract sand or gravel from Mueller North until such time as the BZA has duly considered either the remanded application or a new application and made their decision. This condition shall not prevent Martin Marietta from commencing site work on Mueller North. Martin Marietta further agrees that if said Docket No. UV -2302 is remanded and approved by the BZA, Martin Marietta shall relocate such plant during the winter of 2005-06 pursuant to the site plan and any related commitments so approved by the BZA. Further, upon the relocation of such Carmel Sand Plant, and subject to obtaining all necessary permits in respect thereof, Martin Marietta agrees to make reasonable efforts to relocate the stockpiles of its materials adjacent to the relocated Carmel Sand Plant so as to attenuate sound from the relocated processing and sales operations related thereto. Upon approval of the relocation of the Carmel Sand Plant, Martin Marietta shall be relieved from its obligation under the approval of Docket No. 04040024-SU to provide a northbound left turn lane into the existing Carmel Sand Plant entrance along Hazel Dell Parkway. (h) Martin Marietta agrees that, so long as it has available, permitted and mineable reserves on its Mueller North or Mueller South sites, it will not import sand and gravel materials from sites other than (a) its sites commonly referred to as North Indianapolis, 96th Street or Carmel Sand for processing at the Carmel Sand Plant; and (b) its Kokomo plant for masonry sand. Provided, however, that this shall not prevent the occasional importation of material from other sites on an infrequent basis not to exceed ten (10) days in any given month and no more than sixty (60) days in total for any calendar year. Further, Martin Marietta shall be allowed to import material on an emergency basis due to an interruption in the supply of material from its existing Carmel sites, such as by way of a dredge, pump, or other malfunction or breakdown. This limitation shall expire when Martin Marietta no longer has available, permitted and mineable reserves on its Mueller North and Mueller South sites. 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. 05010021 SU, Martin Marietta 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 site reclamation. DOCS shall make the report available for inspection and copying by all interested parties. Martin Marietta shall be entitled to submit a single, combined report for its Mueller North and Mueller South sites. 3 INDY 1548355v8 (c) The maps, submittals, and undertakings in the TAC 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. (d) Martin Marietta shall use the existing Carmel Sand Plant entrances on Hazel Dell Parkway 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. 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 South property. The Director is authorized to apply such conditions to any approval as he deems reasonable. (e) The berm specified along the perimeter of the property as identified on the site mine plan 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 Monitorin~ Martin Marietta agrees to modify the existing water quality monitoring plan adopted in connection with the approval of sand and gravel mining on Mueller South to, among other things, relocate actual or proposed monitoring wells to sites specified by the Utilities Department. Further, 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 North Sand and Gravel Operation Carmel, Indiana," dated May, 2005, and previously submitted to the 4 INDY 1548355v8 Department. Martin Marietta agrees to pay for the monitoring and activities proposed to be done by Martin Marietta in the said May, 2005 report. 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. 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. Additionally, Martin Marietta will notify the City Utilities Department as to the date of the annual training as prescribed by the Spill Prevention, Control, and Countermeasure Plan dated April 2003 such that a Utilities representative can attend and/or participate in the training. 5. Compliance with Thoroughfare Plan Martin Marietta will dedicate or cause to be dedicated a forty-five foot half right-of-way for the north side of 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 South Property as referenced in paragraph 2( d) above. 6. Buffers and Screening (a) A buffer area of approximately 300 feet in width will be maintained along the northern and western permit boundaries adjacent to Carmelot Park and the Kingswood neighborhood. Martin Marietta shall construct a temporary berm approximately 11' to 15' in height. The berm shall be landscaped as provided in the submittals and, adjacent to the property line adjoining the Kingswood neighborhood, a six-foot (6') high black chain-link fence shall be built just north of the berm as shown on the submittals. Additionally, the twenty-five foot (25') wide tree planting area along the northern and western permit boundaries will be installed prior to the overburden removal. (b) A seeded berm along the northern boundary of 106th Street approximately 6' to 10' in height will be constructed. (c) All landscaping will be completed and maintained consistent with the Landscaping Plan Map, a copy of which is on file in the Office of DOCS, except as modified in (a) above. 7. 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, Carmel Utilities and in the Office of DOCS. 5 INDY 1548355v8 (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 on the Mueller North property and further agrees voluntarily to apply this condition to its Carmel Sand plant. 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, to be used for operations after sundown and before sunrise in place of back-up alarms. These strobes shall be installed within sixty (60) 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 require that it be utilized if commercially available. Provided, however, that all such safety measures shall conform to all laws and regulations and safety standards then extant with regard to back up protections. 8. Reclamation (a) Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim the Real Estate as a Lake with (i) slopes no steeper than 3 to I and (ii) domestic grass coverage of not less than 80% per square yard on all side slopes. A concurrent reclamation plan will be employed to the extent possible. (b) All reclamation shall comply generally with the reclamation guidelines adopted by the Indiana Mineral Aggregates Association and will be completed consistent with the Reclamation Plan Map, a copy of which is on file in the Office of DOCS. (c) 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. (d) Martin Marietta and the owners of the Real Estate agree that none of the Real Estate between the mined area (reclaimed as a lake) and (a) any adjacent Kingswood property; (b) Carmelot Park; and (c) 106th Street ("buffer area") shall be used for any use other than open space, conservation or reclamation. Such buffer area shall be perpetually preserved as natural undeveloped open space to: (i) protect such property's natural and watershed values, (ii) protect and retain quality habitat for native plants and animals and (iii) maintain and enhance the natural features of the property. Any uses which interfere with or which are inconsistent with such natural undeveloped open space use (e.g., commercial or 6 INDY 1548355v8 residential development) are expressly prohibited and no structures will be placed in the buffer area. The foregoing provisions of this Section 8( d) shall also be contained in any deed conveying an interest in the Real Estate as a deed restriction. 9. 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, unless modified or terminated by the.BZA or its successor pursuant to this paragraph. These 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. 10. General. (a) In all matters where a representative of the City is given discretion to order studies or take action, such representative 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 North parcel only, and in no way implies that the BZA has reviewed, condoned, or approved any aspect of any other application for mining 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 there from. 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 7 INDY 1548355v8 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. 05010021 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 ofthe Special Use Permit issued in said Approval Docket No. 05010021 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. 05010021 SUo IN WITNESS WHEREOF, Martin Marietta has caused the execution of this instrument this day of May, 2005. MARTIN MARIETTA MATERIALS, INC. By: John J. Tiberi Regional Vice President/General Manager MidAmerica Region 8 INDY 1548355v8 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 Regional Vice President/General Manager, MidAmerica Region, 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 May, 2005. Signature Printed NOTARY PUBLIC My Commission Expires: County of Residence: 9 INDY 1548355v8 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 May, 2005. 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 82001, Indianapolis, Indiana, 46282-0200, Telephone (317) 236-2319. 10 INDY 1548355v8 EXHIBIT A REAL ESTATE DESCRIPTION Legal DescrlDtlon Part of the South Half of Section 4, Township 17 North, Range 4 East of the Second Principal Meridian in Clay Township, Hamilton County, Indiana, described as follows: Beginning at the Southwest corner of Section 4, 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 South line of said Section 4, a distance of 3,302.24 feet to the Westerly line of real estate conveyed to the City of Carmel, Indiana, by a document titled "Certification of Clerk" recorded in the Office of the Recorder of Hamilton County, Indiana, as Instrument Number 9709754848; (the following seven courses being on the Westerly line of said real estate) 1.) thence North 00 degrees 04 minutes 04 seconds East 16.50 feet; 2.) thence North 60 degrees 23 minutes 05 seconds East 57.55 feet; 3.) thence North 89 degrees 50 minutes 43 seconds East 254.47 feet; 4.) thence South 81 degrees 22 minutes 39 seconds East 198.24 feet; 5.) thence North 25 degrees 45 minutes 13 seconds East 826.18 feet; 6.) thence North 21 degrees 15 minutes 23 seconds East 576.29 feet; 7.) thence North 07 degrees 37 minutes 09 seconds East 180.00 feet to a point on a line that is parallel with the South line of said Section 4, and extends Easterly from a point on the East line of the Southwest Quarter of said Section 4 that is 154.10 feet North of the Southeast corner of the North Half of said Southwest Quarter; thence North 89 degrees 55 minutes 56 seconds West on said line 1 ,718.86 feet to the aforesaid point on the East line of said Southwest Quarter, being also the East line of KINGSWOOD SUBDIVISION, SECTION THREE, a subdivision in Hamilton County, Indiana, the Secondary Plat of which, as amended December 22, 1988, is recorded in said Recorder's Office as Instrument Number 8900204 on pages 111 and 112 of Plat Book 16; thence South 00 degrees 07 minutes 43 seconds West on the East line of said Southwest Quarter 154.10 feet to the Southeast corner of the North Half of said Southwest Quarter; thence North 89 degrees 51 minutes 18 seconds West on the South line of the North Half of said Southwest Quarter 1 ,521.03 feet to the Northeast corner of real estate conveyed to the City of Carmel, Indiana, per a Deed recorded in the Office of the Recorder of Hamilton County, Indiana, on page 865 of Deed Record 329, said corner being 1,146.65 feet East of the Northwest corner of the South Half of said Southwest Quarter; thence South 00 degrees 27 minutes 42 seconds West on the East line of said real estate 918.75 feet, per the aforesaid deed, (919.89 feet by measurement) to the Southeast corner of said real estate, said corner lying on a line that extends South 89 degrees 51 minutes 29 seconds East, measured parallel with the North line of South Half of said Southwest Quarter from a point on the West line of said Southwest Quarter that is 406.45 feet North of the Southwest corner of said Section 9; thence North 89 degrees 51 minutes 29 seconds West on said line and the Westerly prolongation thereof, a total distance of 1 ,145.58 feet, per the aforesaid deed, (1,144.55 feet, by measurement) to the aforesaid point on the West line of said Southwest Quarter, said point being also the Southwesterly corner of real estate conveyed to the City of Carmel, Indiana, by a Warranty Deed recorded In said Recorder's Office as Instrument Number 8726638; thence South 00 degrees 19 minutes 51 seconds West on the West line of the Southwest Quarter of said Section 9, a distance of 406.45 feet to the place of beginning, containing 105.981 acres, more or less. INDY 1548355v8 EXHIBIT B MASTER LIST OF MAPS AND SUBMITTALS . Area Map (Dated January 28,2005) . Zoning Map (Dated January 28, 2005) . Mine Plan Map (Dated February 25,2005) . Reclamation Plan Map (Dated January 28,2005) . Landscaping Plan Map (Dated May 5, 2005) . Cross Section Map (Dated May 5, 2005) . Erosion and Sediment Control Report (Dated January 2005) . Sound Level Assessment (Dated January 2005) . Groundwater and Surface Water Monitoring Plan (Dated April 2005) . Spill Prevention, Control and Countermeasure Plan (SPCC) (Dated May 2005) INDY 1548355v8