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HomeMy WebLinkAboutCommitments ... - i <, - -<t_ EXECUTION COPY -, MARTIN MARIETTA MATERIALS, INC. MUELLER PROPERTY SOUTH SURFACE LIMESTONE MINING SPECIAL USE APPLICATION Docket No. 05090003 SU STATEMENT OF COMMITMENTS COMMITMENTS CONCERNING THE USE OR DEVELOPMENT OF REAL EST ATE 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 the surface of that portion of the following described parcel of real estate situated approximately four hundred ninety (490') feet above mean sea level, located near the southwest cotner of the intersection of l06th 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"). These commitments apply only to the described Real Estate and to no other property owned or controlled by Marti n Marietta. Statement of COMMITMENTS: 1. General Operational Commitments. A. Martin Marietta will develop an open pit, surface mining operation on the Real Estate in accordance with the plans and submittals identi fied herein and the commitments made herein. B. The maps, submittals, and undertakings in the TAC responses shall be deemed the application documents and shall bind Martin Marietta. Attached hereto as Exhibit E 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. C. Prior to commencement of any \\lork on the Real Estate, Martin Marietta shall provide to the "Director" of the Department of Community Services ("DOCS ") copies of mining approvals and permits from every govenunental agency having jurisdiction over the Real Estate and/or activities of Martin Marietta on the Real Estate, including all submittals to such governmental agencies, and shall include all specifications and restrictions contained in such submittals and approvals. 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 baniers) and only on days other than Saturday, Sunday, or State of Indiana 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. .. - 'b\. E. Martin Marietta's acceptance of the hours of operation shall include that all mining, processing, and hauling shall be conducted between the hours of 6 a.m. and 8 p.m., Monday through Friday, and 8:00 a.m. to 2:00 p.m. on Saturdays, and no mining, processing, or hauling shall occur on Sundays and holidays recognized by the State of Indiana. F. Extraction operations may be conducted outside these hours only (i) to supply materials for inclusion in a public (state, federal or municipally directly funded) project; (ii) to respond to an emergency; or (iii) to meet exceptional demands caused by special projects requiring work outside normal hours. Operations outside the above stated hours to meet the demands of a special project shall not exceed fifteen (15) days in any calendar year. Except in the case of emergencies, DOCS shall be .advised of all operations outside of the stated hours at least 48 hours in advance of the work. G. Martin Marietta shan 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 and Hazel Dell Parkway for berm construction). H. The bem) specified along the perimeter of the property as identified on the Mine Plan map shall be substantially complete within onehundred 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. I. Chain link type fences at least six (6) feet in height shall be required on the perimeter of the Real Estate at a point not closer than the right~of-way line of any street bordering the Real Estate where it is not contiguous to existing mine property. Martin Marietta shall submit the proposed location and type of fence to the Director for approval. The fence shall be maintained in a constant state of good repair. J. Any lights used for exterior illumination shall be directed away from adjoining public and private property. II. Blasting Practices. A. General Requirements. 1. Martin Marietta shall comply with all applicable state and federal regulations as they relate to blasting on the Real Estate. 2 2. All surface blasting on the Real Estate shaH be limited to the period from 11 :00 a.m. to 2:00 p.m. on weekdays (except on holidays recognized by the State ofIndiana when no surface blasting shall be allowed). 3. Martin Marietta shall endeavor in good faith to schedule surface blasts on the Real Estate at the same approximate time of day. 4. Explosives used in a surface blast on the Real Estate shall not be detonated at other times, except when necessary to detonate a loaded shot that could not be detonated because of adverse weather or other conditions that could not be reasonably foreseen by Martin Marietta, to maintain blasting safety, or as required to comply with applicable governmental requirements. 5. Martin Marietta shall notify the Director promptly of any surface blast that may occur or actually occurs outside the prescribed times of day on the Real Estate. It is the intent of this paragraph that Martin Marietta shall notify DOCS as soon as is reasonably possible in the event of the occurrence of a blast outside of the prescribed times so as to pemlit representatives of DOCS to respond to any community inquiries in respect thereof. 6. Individuals trained and experienced in the design and safe use of surface blasting systems and licensed by the State of Indiana shall conduct all surface blasting on the Real Estate. 7. Surface blasting on the Real Estate shall occur no closer than one thousand seven hundred eighty (1,780') feet (measured horizontally) to any currently existing occupied, single-family residential structure (excluding those situated on the so-called "Mueller Property North" and "Mueller Property South"), or within one hundred (100) feet, measured horizontal1y, of any underground pipeline, unless the pipeline company authorizes, or confirms in writing to the Director, a lesser distance, provided that such distance shall in no event be less than twenty-five (25) feet. 8. Explosives shall not be stored on the Real Estate. Martin Marietta shall use best practices when loading explosives on the Real Estate, and the amount of explosives loaded into each hole shall be monitored to avoid overloading a blast. 9. Fly rock from the Real Estate shall not leave the property owned or controlled by Martin Marietta. 10. Martin Marietta shall monitor drilling to avoid overdrilling. If overdrilling occurs, a crushed stone filler, either fine or coarse aggregate as appropriate, shall be used. Stemming shall generally be done to a level and in the manner recommended by Vibra- Tech in its letter of Feb. 8, 2006, in consultation with the blaster. MM shall keep such drilling and 3 blasting records as will permit the review of its drilling and stemming at the annual review specified herein. 11. Martin Marietta MM shall use blast designs intended to increase frequency levels above 20 hz. Blast design shall generally confoffi1 to the recommendations of Vibra-Tech in its letter of Feb. 8, 2006, in consultation with the blaster. Frequency levels and the achievement of frequencies above 20 hz shall be one of the review criteria for the annual review of Martin Marietta's practices specified herein. 12. The commitment herein to any blast design, drilling, or stemming recommendation is made expressly subject to the legal right and the duty of the blaster to vary the design to account for the circumstances of each individual blast and shall not be deemed to restrict or interfere with the exercise of the blaster's judgn1ent and discretion, nor to relieve the blaster of responsibility for the safe use of explosives. B. Vibration and Air Overpressure Limits. 1. The maximum peak particle velocities for any blast on the Real Estate shall comply with: (1) the requirements of the rules and regulations of the Indiana Department of Homeland Security, generally consistent with Indiana Code 22-11-14, and the regulations promulgated thereunder pursuant to 675 IAC 26; and (2) the frequency and vibration criteri.a referenced in the former U.S. Bureau of Mines Report of Investigations (RI) 8507, Structural Response and Damage Produced by Ground Vibration from Surface Mine blasting (Siskind 1980), including the frequency and. vibration curve therein commonly referred to as the Siskind Curve; and (3) shall not exceed .5 inches per second peak particle velocity when measured at the property line of any existing single family residential structure in the City of Carmel not owned by Martin Marietta or Mueller. 2. The maximum air overpressure limits from blasting on the Real Estate shall comply with the requirements of the rules and regulations of the Indiana Department of Homeland Security, generally consistent with Indiana Code 22-11-14, and the regulations promulgated thereunder pursuant to 675 lAC 26, which are generally patterned upon the criteria referenced in the former U.S. Bureau of Mines RI 8485, Structure Response and Damage Produced by Airblast from Surface Mining (Siskind 1980), as shown in the table below: 0.1 Hz high-pass system 134 db 2 Hz high pass system 133 db 5 or 6 Hz high pass system 129 db C-slow (events not exceeding 2 sec. duration) 105 db 4 C. Monitorin?, Guidelines. 1. All overpressure on the Real Estate shan be monitored by Vibra- Tech Engineering, Inc. ("Vibra- Tech"), who shall be responsible for reviewing and analyzing the data. Provided, however, that if Martin Marietta demonstrates that on average during a calendar twelve (12) month period no more than two (2) blasts per month result in air overpressure exceeding 120 db for a period of three (3) years, it shall be entitled to submit a plan for self-monitoring and the Director is authorized to approve such plan if it contains substantiaUy the same monitoring specified herein. 2. All blasts on the Real Estate shall be monitored by no less than six properly calibrated seismographs recording horizontal and vertical ground vibrations and. air overpressure. The location of the monitoring stations shall be acceptable to the Director. All equipment for the monitoring of blasts will be maintained and calibrated by the monitoring company exclusively. 3. The Director may require that additional monitoring stations be located, or that existing monitoring stations be relocated to or from certain sites; provided, however, that Martin Marietta shall not be required to provide more than two additional monitoring locations at any given point in time. 4. Records shan be kept by Martin Marietta for each surface blast on the Real Estate, consistent with all requirements set forth in the Indiana Administrative Code (675 lAC 26-3-1, Sec leu)) and shall include the following: a. the date, time and specific location of each blast; b. the weather conditions including: 1. air temperature; 11. wind speed and direction; and 111. cloud cover. c. identification of the closest residential structure, and approximate distance from the blast; d. the name and license number of the person conducting the blast; and e. the number of holes, diameter and depth of holes, the delay pattern and design, and number of detonators used. 5 5. Martin Marietta shall maintain all records of blasting on the Real Estate for a period not less than three (3) years. 6. Annually, within thirty (30) days of the anniversary of the issuance of this permit, Martin Marietta shall provide a report of blasting on the Real Estate to the Director for the preceding year. The blasting report shall contain the date, time, total explosives, pounds per delay, and systems used for each blast, together with a statement that the blasting complied with all applicable laws and regulations. The .aru1l1al blasting report shall include a review of blasts that register aPPV greater than .2 inches per second and have a frequency below 20hz, as well as a separate category of .blasts for which the air blast exceeds 120 db. In the event that in any calendar twelve (12) month period more than an average of two (2) blasts per month have a frequency level of less than 20hz for any blasts that exceed .2 inches per second peak particle velocity, Martin Marietta shall submit all information in respect thereto to Vibra- Tech for its review and analysis. As a part of the next succeeding blasting report contemplated by this paragraph 6, Martin Marietta shall submit to the Director the recommendations made by Vibra- Tech in order to modify the blasting practices so as to achieve the goal of frequencies at or above 20hz for blasts that exceed .2 inches per second peak particle velocity. D. Reportable Events.. 1. Martin Marietta shall report to the DOCS any blast that exceeds .5 inches per second, or otherwise does not comply with the Bureau of Mines Siskind curve with respect to a combination of frequency and peak particle velocity at any of the monitors required hereunder in subparagraph B.1(3) above (such blasts are hereafter referred to as "Reportable Events"). The report to DOCS shall contain complete information with respect to such Reportable Events, including blast layout and design, together with all seismic, decibel, weather and other data gathered as part of Martin Marietta's monitoring. Martin Marietta agrees to cooperate with the Director with respect to investigations of complaints about blasting and to provide information and data as reasonably necessary to investigate such complaints. Additionally, Martin Marietta shall make the agreed consultant available to discuss with the Director the source or reason for such complaints and to make any recommendations to address such complaints. 2. If five (5) or more Reportable Events occur in any calendar year, within ten (10) days of the fifth event Martin Marietta shall submit all information on such Reportable Events to Vibra-Tech Inc. for its review and analysis. Within twenty (20) days after the later of the date, (i) such data is submitted to Vibra-Tech, or (ii) Vibra-Tech provides a written report in respect thereto, or at such time as is agreed to by DOCS, Martin 6 Marietta and Vibra- Tech shall meet with DOCS to discuss the Reportable Events and any recommendations by Vibra- Tech with respect to blasting patterns or practices to minimize Reportable Events. It shall not be presumed that a change in blasting patterns or practices is necessary merely because of such Reportable Events, but if Vibra- Tech reasonably believes that a change is necessary to prevent frequent Reportable Events, it shall recommend such changes in blasting practices, as it deems necessary. These recommendations shall be discussed at the meeting with DOCS, and Martin Marietta shall be entitled to suggest changes or modifications to the recommendations that would make them less onerous or more acceptable, and Vibra-Tech shall consider Martin Marietta's conunents in that regard. Within ten (10) days after the meeting, or as soon thereafter as is practicable, however; Vibra- Tech shall finalize its recommendation and Martin Marietta agrees to implement such commercially reasonable recommendations as expeditiously as is commercially practicable, given the nature of the recommendations. 3. Martin Marietta fmiher agrees to grant Vibra-Tech access to its records upon request by the DOCS for the purpose of Vi bra- Tech auditing them to detennine that Matiin Marietta is complying with the reporting obligations with respect to Reportable Events contained herein. Any audit report by Vibra- Tech shall report only whether Martin Marietta has complied with its reporting obligations herein and, if it has not, the instances and manner in which it has not complied, including the information and data required to be submitted by Martin Marietta for atlY Reportable Event. 4. In January of each year, Vibra-Tech shall review Martin Marietta's blasting records and blasting programs for the prior year for the purpose of making such recommendations as Vibra- Tech believes may reasonably be necessary to reflect changes in the state of blasting technology that have become commercially practicable. Martin Marietta agrees to consider the recommended changes in good faith, and to implement those that do not umeasonably interfere with its operations and are commercially practicable, but otherwise shall be under no obligation to implement them so long as it has less than three Reportable Events during the previous calendar year. 5. An air overpressure measurement in excess of 120 db shall also be deemed a Reportable Event and the occurrence of five (5) such air overpressure Reportable Events in a one hundred twenty day (120) period shall trigger the requirements set forth above in subparagraph (2) above. Air overpressure and vibration Reportable Events shall not be combined to trigger the requirements of subparagraph (2) above. 6. In the event Vibra- Tech is unable to serve in the capacity described hereillabove, Martin Marietta shall propose to DOCS another nationally recognized engineer with experience in mining activities sllch as those 7 undertaken by Martin Marietta on the Real Estate. Such replacement shall be reasonably acceptable to DOCS. 7. These specific blasting conditions in this Section II are intended to and do constitute all of the commitments made by Martin Marietta with respect to surface blasting and supersede all other provisions of these conditions with respect to surface blasting. III. Studies and Monitoring. If the Director determines that additional study or monitoring of off-site impacts from operations on the Real Estate 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 perfonned at its expense in the time frame set forth in the proposal and shall provide a report of the results to the Director. 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. IV. Water Monitoring. Martin Marietta will cooperate with the City Utilities Department (the "Department") in the development of a water quality monitoring program acceptable to the Department to monitor potential impacts from open pit mining on the Real Estate. Martin Marietta recognizes that this may require different or additional wells or monitoring protocols than those currently called for and agrees to pay for those that are made necessary by the mining approved herein, as determined in the Department's reasonable judgment. Martin Marietta recognizes that the Department may wish to conduct additional monitoring at its own expense and agrees to cooperate with the Department to pemlit such additional monitoring. Further, Martin Marietta shall grant the Department access to the monitoring points, flow meters, and related areas at all reasonable times, subject to compliance with MSHA regulations. The Department shall also have access to monitoring locations on an as needed basis for emergency purposes. Additionally, Martin Marietta will notify the 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 Department representati ve can attend and/or participate in the training. V. Buffers and Screening. A. A buffer area of approximately 330 feet in width will be maintained from the property line of the Real Estate on the south side of l06Lh Street as shown on the Mine Plan. Berms or other activities allowed under previous permits in this area continue to be allowed. B. All landscaping specified in any plans will be completed and maintained consistent with the Landscaping Plan Map, a copy of which is on file in the Office of DOeS, except as modified herein. 8 VI. Environmental. A. All operations shall be conducted in confomlance with the Federal Clean Air Act, Clean Water 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 (SpeC) Plan for this facility, a copy of which is on file with the Carmel Fire Department, Carmel Utilities and inthe Office of DOeS. C. Martin Marietta will maintain an approved Stonnwater Management and Erosion and Sediment Control Report for this facility, a copy of which is on file in the Office of DOCS. VII. Periodic Reports. Martin Marietta shall submit a report (the "Report") within thirty (30) days of the two (2) year anniversary date of this permit. The Report shall contain the following information with respect to the Real Estate: A. A Mine Plan for operations on the Real Estate consisting of: 1. an Operations Plan; 2. a Mine Plan map; and 3. a Reclamation Plan. B. The Operations Plan for the Real Estate shall include the following: 1. the general geographic location of the current mining activity; 2. a description of the existing condition of the surface at the Mine, including areas already mined or disturbed by mining, the existence of structures, vegetation, and ground cover; 3. a description of the method of mining showing the method of extraction, the sequence of mining, the disposition of materials on the Real Estate, the use of haul routes, ingress and egress from public streets, and an updated Blasting Plan including the following infonnation: a. monitoring locations; b. anticipated frequency of surface mine blasting; c. anticipated range of blast sizes (in tons); d. pre-blast notification (as requested by any interested parties within 9 a one mile radius ofthe operation); and e. other general blast related infonnation. 4. a description of the expected general direction of mining during the next two (2) year period, along with the overall development of the mine. C. The Operations Plan shall also include a description of the methods used or to be used for preventing pollution from mining on the Real Estate, including but not limited to air pollution, water pollution and noise pollution. If such methods are contained in applications and/or permits issued to Martin Marietta, the submission of such applications and pem1its to the Director shall satisfy this requirement. If not, Martin Marietta shall provide the following: 1. current and future drainage and water controls, including discharge volumes, water quantity and quality monitoring locations, monitoring wells, and similar water quality and quantity matters; 2. air quality and dust control plans; 3. a complete Spill Prevention Control and Countermeasure (SPCC) plan, updated as necessary, to insure adequate response to potential fuel spills and releases from mining equipment; 4. emergency response measures in the event of a release that could impact water quality; 5. a description of the employee training for response to spill and release emergencies; and 6. a listing of all chemicals, quantities and storage locations for the facility. D. The Mine Plan map shall be presented on a base map stamped by a professional licensed in Indiana and shall include the following: 1. a map of the location of the mine on the Real Estate including boundaries of the Real Estate controlled by Martin Marietta; 2. a schematic outline and legal description of the Real Estate proposed for mining for the life of the mine; 10 3. topographic contours, at two-foot intervals; 4. all areas of excavation, and, if applicable, all blasting areas on the Real Estate; 5. all processing plant areas on the Real Estate; 6. all drainage features, water courses, water discharge points, water impoundments, and ground water monitoring locations; 7. the name and address of the mining operation; 8. the mine manager's name and contact information; 9. the scale, a north arrow and a reference datum; 10. the name of the individual responsible for the preparation of the maps and/or photographs; and 11. the date of preparation, and the record of work and/or revisions. E. The Report shall also include: 1. a written description detailing any reclamation accomplished on the Real Estate during the prior period; 2. results of studies or monitoring required by the Director or any other city, county, state or federal agency to insure that the requirements of this penuit have been, are being, and will be satisfied; and 3. a certification by Martin Marietta that all mining, processing or reclamation conducted during the reporting period was in conformance with the permit and the approved plans, and that Martin Marietta is in compliance with these commitments. VIII. Reclamation. Unless an alternative reclamation plan is approved, Martin Marietta shall reclaim the Real Estate as a lake. The Reclamation Plan shall consist of a graphic and written description of the proposed Reclamation and shall: A. include maps and cross sections that illustrate the final physical state of the reclaimed land; B. include a description of the manner in which the land is to be reclaimed, including the disposition of topsoil, and a schedule for performing any reclanlation and planting and seeding plans that will commence during the next five year period; 11 C. comply generally with the version of the Guiding Principles of the Environmental Stewardship Council of the Indiana Mineral Aggregate Association for reclamation, grading and re-vegetation in effect at the time the reclamation plan is submitted; and D. 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 Director to assure completion of the reclamation. lX. 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 pelmits or approvals in respect of the Rea] 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. These COMMITMENTS may be enforced jointly or severally by the Carmel Board of Zoning Appeals and/or the City of Carmel Department of Community Services, but shall create no private right of action. 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. X. 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. The approval under Approval Docket No. 05090003 SU is specific to the Martin Marietta proposal for the surface mining of limestone on the Real Estate, and in no way implies that the BZA has reviewed, condoned, or approved any aspect of any other pending application for mining. C. The denial of a future or other pending 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 12 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 DOCS and the Department's employees and its consultants, at all reasonable times, for purposes of monitoring compliance with these commitments and any other responsibilities derived there from. E. Unless expressly specified herein, nothing in these commitments shall supersede, suspend, or otherwise modify any commitment or obligation undertaken by Martin Marietta in any other proceeding or docket. F. Whenever the term Martin Marietta is used herein it shall be deemed to refer to the applicant herein and to any successor in interest to the Applicant. COMMITMENTS contained Ln this instrument shall be effective upon the adoption of Approval Docket No. 05090003 SU by the Cannel 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. 05090003 SU or until such other time as may be specified herein. The undersigned hereby authorizes the City of Carmel Depal1ment 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. 05090003 Su. ~~ITNESS WHEREOF, Martin Marietta has caused the execution of this instrument this /~ day of July, 2008. MARTIN MARIETTA MATERIALS, INC. 13 ST A TE OF INDIANA ) ) SS: COUNTY OF-M"A1U~ ) ~~ Before me, a Notary Public in and for said County and State, personally appeared John 1. Tiberi, the President/Mideast Division 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 July, 2008. ~~~ Signature _ /) (- ---.-- I --: - r. P~;:~: n I~ e ~.' G~~~:~LIC~- i '- .....: ,. . '-. . - - -",.. ." ,,"" .... -- '. . , - : My Commission Expires: tJ - ,;) -0 ,g--- . CountyofResidence:~ . 14 ,'. E. & H. MUELLER DEVELOPMENT, LLC, an Indiana limited liability company By: i)~~ ~ Si atu'd Its: tu I J bll (' \" '1 "",~f' ::r l' - ~r-eS" \ d cm+ Printed Name and Title STATE OF INDIANA ) ... ) SS: COUNTY OF~0) . Before me, a Notary Public in and for said County and State, personally appeared Lu; I hUt1/U.1 efL :Tn. , 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 J I day of July, 2008. 1. -1L ~;;~,4 '- h : GIIP/lit- S;-r;~ ~ .; -;- Printed W T . Y PUBLIC:-=- ,~r_.. My Commission Expires: 9 oj. -()g- County of Residence: ~~...(~4. ~.... This instrument was prepared by and after recordation should be returned to Zeff A. Weiss, Ice Miller LLP, One Ame11can Square, Suite 2900, Indianapolis, Indiana, 46282-0200, Telephone (317) 236-2319. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. Zeff A. Weiss, Esq. 15 . . EXECUTION COpy EXHIBIT 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 comer of the East Half of the Northwest Quarter of said Section 9, said comer 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 South89 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 NOlih 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 of the Recorder at 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 \-Vest 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. .. .- OIl ..... . EXECUTION COpy EXHIBIT B MASTER LIST OF MAPS AND SUBMITTALS " Area Map . Zoning Map . Mine Plan Map . Reclamation Plan Map .. Landscaping Plan Map . Cross Section Map .. Erosion and S~diment Control Report .. Sound Level Assessment o Spill, Prevention, Control, and Countermeasure (SPCC) Plan 1/1622966.11 (Dated September 6, 2005) (Dated September 6, 2005) (Dated November 28, 2005) (Dated November 28, 2005) (Dated November 28, 2005) (Dated November 28, 2005) (Dated September 2005) (Dated September 2005) (Dated April 2003)