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HomeMy WebLinkAboutOrdinances - O-88-450 - 05/04/1988 - EXTEND MCH SAND AND GRAVEL ANNEX AGMTI'?" -EIVED ORDINANCE NO. 0-88-450 APR 2 21988 AN ORDINANCE PROVIDING FOR THE EXTENSION OF A CERTAIN ANNEXATION AGREEMENT BETWEEN THE CITY OF McHENRY AV]) f OF MCHENRY McHENRY SAND & GRAVEL COMPANY, INC., McHENRY STATE BANK, AS TRUSTEE, UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED JULY 1, 1963, AND KNOWN AS TRUST NO. 125, McHENRY STATE BANK, AS TRUSTEE, UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED FEBRUARY 2, 1971, AND KNOWN AS TRUST NO. 396, McHENRY STATE BANK, AS TRUSTEE, UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED FEBRUARY 5, 1972, AND KNOWN AS TRUST NO. 456, AND McHENRY STATE BANK, AS TRUSTEE, UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED AUGUST 1, 1980, AND KNOWN AS TRUST NO. 2017 WHEREAS, McHENRY SAND & GRAVEL COMPANY, INC., McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated July 1, 1963, and known as Trust No. 125, McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated February 2, 1971, and known as Trust No. 396, McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated February 5, 1972, and known as Trust No. 456, McHENRY STATE BANK, as Trustee, under the provision: of a Trust Agreement dated August 1, 1980, and known as Trust No. 2017, are, collectively, the owners of record of the following described real estate: All those parts of Sections 28 and 29 in Township 45 North, Range 8 East of the Third Principal Meridian bounded by a line described as follows to wit: Commencing at the point of intersection of the East line of the West Half of Section 28 with the North right of way line of Route 120; thence Northwesterly and Westerly along Northeasterly and North right of way of Route 120 to a point 581.69 feet West of the West line of the East Half of the Northeast Quarter of Section 29; thence South 1938..41 feet; thence East on a line parallel to the South line of the Northeast Quarter of Section 29, 577.41 feet to the intersection with the West line of the East Half of the Northeast Quarter of Section 29; thence Northerly 55.94 feet; thence Easterly on a line parallel and 797.94 feet North of the South line of the Northeast Quarter of Section 29, and said line projected East to the West line of Lot 10, in Sherman Hill Industrial Subdivision; thence Northerly to the Northwest corner of Lot 10; thence Easterly along the South right of way line of Dot Street to a point on the West line of Lot 1; thence South on the West line of Lot 1 to the Southwest corner of Lot 1; thence East on the South line of Lot 1 and said line extended to the center line of Draper Road which is the East line of the West Half of Section 28; thence North on the East line of the West Half of Section 28, to the place of beginning, all in McHenry County, Illinois. WHEREAS, the owners of record of the above -described premises and the City of McHenry previously entered into an Annexation Agreement dated December 20, 1976; and WHEREAS, said Annexation Agreement was, on December 3, 1986, extended for an additional two (2) year period commencing on December 20, 1986; and WHEREAS, it is in the best interests of the City of McHenry and the owners of record of the above -described premises that said Annexation Agreement be extended for an additional period. NOW, THEREFORE, be it ordained by the City Council of the City of McHenry, McHenry County, Illinois, as follows: Section 1. That a second extension of the Annexation Agreement bearing date December 20, 1976, by and between the City of McHenry, McHenry County, Illinois, and McHENRY SAND & GRAVEL COMPANY, INC., McHENRY STATE BANK, as Trustee under the provisions of a Trust Agreement dated July 1, 1963, and known as Trust No. 125, McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated February 2, 1971, and known as Trust No. 396, McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated February 5, -2- 1972, and known as Trust No. 456, McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated August 1, 1980, and known as Trust No. 2017, be and the same is hereby approved for an additional term of ten (10) years commencing on the date hereof with an automatic extension for an additional ten (10) year term providing, however, there are no substantial or recurring violations of the Annexation Agreement, as amended, or of Federal or State mining, environmental and reclamation laws or regulations or of the City of McHenry Zoning Ordinance during the initial ten (10) year term and that the Mayor and City Clerk be and they are hereby authorized and directed to sign and attest the Second Amendment to Annexation Agreement which is attached hereto as Exhibit No. 1. Section 2. In the event the annexation or the terms of the Annexation Agreement, as amended, are challenged in any Court, the owners of said real estate and their successors and assigns shall indemnify and hold the City, its officers, servants, attorneys, agents, and employees harmless from any and all expenses of litigation, including but not limited to attorney and witness fees and deposition costs, and all obligations and liabilities that may be imposed upon or against them by any court proceedings. The tolling of time during which such litigation is pending shall not be included in the calculation of said twenty (20) year term and shall only include litigation pending in State Courts. Section 3. This Ordinance shall be known as Ordinance -3- No. 0-88-450 and shall be in full force and effect for a twenty (20) year period cgmmencing on the date hereof. PASSED by a two-thirds majority of the Corporate Authorities of the City of McHenry, McHenry County, Illinois, this 4th day of May , 1988. AYES: Bolger, Lieder, McCIatche_y, Nolan, Serritel1a, Smith, Patterson, Teta NAYES : None ABSTAINING: None ABSENT: None APPROVED THIS 4th DAY OF May , 1988. W&UZ5,e,�� Mayor ATTEST: City Clerk 7789R -4- EXHIBIT NO. 1 , SECOND AMENDMENT TO ANNEXATION AGREEMENT This Second Amendment Itdated the 4th day of May , 1988, to that certain Annexation Agreement made and entered into on the 2:0th day of December, 1976, by and between the CITY OF McHENRY, a municipal corporation (hereinafter referred to as "CITY"), McHENRY SAND & GRAVEL COMPANY, INC., a Delaware corporation (hereinafter referred to as "McHENRY SAND & GRAVEL COMPANY"), McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated July 1, 1963, and known as Trust No. 125 (hereinafter referred to as "TRUST 125"), McHENRY STATE BANK, as Trustee under the provisions of a Trust Agreement dated February 2, 1971, and known as Trust No. 396 (hereinafter referred to as "TRUST 396"), McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated February 5, 1972, and known as Trust No. 456 (hereinafter referred to as "TRUST 456"), and McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated August 1, 1980, and known as Trust No. 2017 (hereinafter referred to as "TRUST 2017"); W I T N E S S E T H: WHEREAS, McHENRY SAND & GRAVEL COMPANY, TRUST 125, TRUST 396, TRUST 456, and TRUST 2017 (hereinafter collectively referred to as "OWNERS") are the record owners of portions of the premises described in said Annexation Agreement and collectively are the owners of said parcel in its entirety; and WHEREAS, OWNERS desire to have certain terms of said Annexation Agreement modified. FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES AND CONSIDERATIONS HEREINAFTER SET FORTH, THE CITY AND OWNERS AGREE AS FOLLOWS: 1. This Agreement is made pursuant to and in compliance with the provisions of Section 11-15.1-1, et seg. of the Illinois Municipal Code (Chapter 24, Illinois Revised Statutes) relating to Annexation Agreements; that all of the publication, notice and other requirements of the Illinois Revised Statutes relating to the annexation of territory have been complied with. 2. This Agreement is entered into after public hearings before the CORPORATE AUTHORITIES, the Plan Commission of the City of McHenry, and the Zoning Board of Appeals of the City of McHenry :in accordance with the provisions of the aforesaid statutes of the State of Illinois and the City of McHenry Zoning Ordinance. 3. That the purpose of this Second Amendment of the Annexation Agreement is to provide for the amendment of the Annexation Agreement entered into on December 20, 1976, by the CITY and OWNERS, as amended on December 3, 1986. 4. This Agreement shall be binding on the parties hereto, their respective successors, grantees, or assigns for an initial term of ten (10) years, commencing on the date hereof, with an automatic extension for an additional ten -2- (10) year term providing, however, that there are no substantial or recurring violations of this Agreement, of Federal or State mining, environmental and reclamation laws or regulations or of the City of McHenry Zoning Ordinance during the initial ten (10) year term. The OWNERS shall request the Department of Mines and Minerals, Land Reclamation Division, of the State of Illinois, and any and all other agencies that may be necessary or appropriate, to furnish directly to the City of McHenry the following Department or Agency materials and information relating to the OWNERS' operations on the aforesaid premises on a current and ongoing basis throughout the time than any operations are being conducted thereon pursuant to •the Conditional Use Permit granted by the City of McHenry hereunder to the OWNERS: Notice of statutory or regulatory violations Notice of intent to revoke any bond Inspection reports Reports regarding reclamation Annual aerial photography of the premises Stop work orders Complaints or other pleadings involving Department or Il_inois Environmental Protection Agency actions or proceedings against OWNERS' operations The foregoing material and information may be considered by the CITY in determining whether or not there has been any -3- substantial or recurring violation of the conditions of the variance hereby granted during the initial ten (10) year term of the conditional use which would warrant a revocation by the CITY of the "automatic" subsequent ten (10) year term of said Conditional Use Permit or any other action pursuant to this Agreement or under any of the CITY Ordinances. Representatives of the CITY may enter upon the real estate where such conditional use operations are being conducted at all reasonable times for the purpose of inspection to determine whether or not the provisions of the Zoning Ordinance of the City of McHenry, of the aforesaid Reclamation Plan, and of this Agreement have been complied with. 5. It is; agreed that, in the event the annexation of the OWNERS' real estate or the terms of the Annexation Agreement, as amended, are challenged in any Court, the OWNERS of said real estate, their successors and assigns, shall indemnify and hold the City, its officers, servants, attorneys, agents, and employee: harmless from any and all expenses or litigation, including but not limited to, attorney and witness fees and deposition costs, and all obligations and liabilities that may be imposed upon or against them by any court proceedings. The tolling of time during which such litigation is pending shall not be included in the calculation of said twenty (20) year term and shall only include litigation pending in State courts. -4- 6. Notwithstanding the twenty (20) year term of this Agreement, the OWNERS agrge that, in consideration of the benefits conferred upon them by this Agreement, McHENRY SAND & GRAVEL shall pay to the CITY an annexation fee which shall be payable in monthly installments. The first monthly installment shall be due and payable on May 15, 1988, and each subsequent monthly installment shall be due and payable on the fifteenth day of each month thereafter until the final termination of the aforesaid Conditional Use Permit operations. Each of said monthly installments shall be calculated by multiplying the number of tons transported during the preceding calendar month from the annexed property for purposes of :sale by the rate per ton hereinafter designated for such month as follows: April 1, 1988 to March 31, 1993 inclusive 2 cents per ton April 1, 1993 to March 31, 1998 inclusive 2-1/2 cents per ton April 1, 1998 to March 31, 2003 inclusive 3 cents per ton April 1, 2003 to March 31, 2008 inclusive 4 cents per ton April 1, 2008 to March 31, 2013 inclusive 5 cents per ton April 1, 201:3 until termination of 6 cents per ton Conditional Use Permit operations At the time the aforesaid monthly installments are paid to the CITY, McHENRY SAND & GRAVEL shall furnish the CITY with duplicate copies of its monthly computer printouts setting forth the amount of sand, gravel, and other earth -5- materials transported from the premises for purposes of sale. Annually, the records of McHENRY SAND & GRAVEL for the preceding twelve (;12) month period from April 1 through March 31 shall be examined by its Certified Public Accountant who shall thereupon furnish the CITY with a written report of the total number of tons of such materials from the premises that were sold during such period. 7. This Agreement shall be enforceable only in a State Court of competent jurisdiction by any of the parties or by an appropriate action at law or in equity to secure the performance of the covenants and agreements herein contained. 7:t is the intention of the parties hereto that no action at law or in equity may ever be filed by them in any Federal Court in connection with this Agreement. 8. The covenants and agreements contained herein shall be deemed to be covenants running with the land and shall inure to the benefit of and be binding upon the heirs, successors and assigns of the parties, including the CITY, its Corporate Authorities and their successors in office. IN WITNESS WHEREOF, the CITY, by and through its duly authorized representative, and McHENRY SAND & GRAVEL COMPANY, TRUST 125, TRUST 396, TRUST 456, and TRUST 2017 have hereunto set their hands and seals and have caused this instrument to be executed by their duly authorized representatives and the corporate seal attached thereto on the day and year first above written. CITY OF McHENRY BY: 41j.� Its Mayo ATTEST: City Clerk -7- ATT : Allen R. Miller Its Secretary ATT ST: rust Officer ATTEST: Trust Officer ATTEST: Trust icer McHENRY SAND &, RAVEL COMPANY, INC. BY: v Charles J. ler Its Preside t McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated 7/l/63 and known as Trust Ng� BY: i a� It Vi e:' Pres. & Sr. Crust Officer McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement ted 2/2/71 and known as TruXNo.BY: Ites. & Sr.,_.Trust Officer McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement stated 2/2/72 and known as Trust 456 / BY: Its Vto Pres. & Sry Trust Officer 2:C McHENRY STATE BANK, as Trustee, under the provisions of a Trust Agreement dated 8/l/80 and known as Trust No- / 7 j. BY: Itg ice: rest ent & Sr. Trus Officer ATTEST: rust Of f icer STATE OF ILLINOIS) )SS COUNTY OF McHENRY) I, the undersigned, a Notary Public, in and for the County and State aforesaid do hereby certify that Charles J. Miller and Allen R. Miller, personally known to me to be the President and the Secretary respectively of McHENRY SAND & GRAVEL COMPANY, INC., a Delaware corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such President and Secretary of said corporation, they signed and delivered said instrument and that the Secretary caused the corporate seal of the corporation to be affixed thereto, pursuant to authority given by the Board of Directors of said corporation as their free and voluntary act and as the free and voluntary act and deed of said corporation for the uses and purposes therein set forth. Notary Public My Commission Expires: STATE OF ILLINOIS) ) SS COUNTY OF MCHENRY) I, the undersigned, a Notary Public, in and for the County and State aforesaid, do hereby certify that the above named Philip S. King and Gerald Helt respectively, VP & Sr.TO and Trust Officer of the McHENRY STATE BANK, Trustee, aforesaid under Trust No. 125 personally known to me to be the same perso hose names are subscribed to the foregoing instrument as s h rust Officer and Trust Officer respectively, appeared before me this day in person and severally acknowledged that they signed and delivered said instrument as their own free and voluntary act and as the free and voluntary act and deed of said corporation for the uses and purposes therein set forth and that said Trust Officer then and there acknowledged that as such custodian of the corporate seal of said corporation said Trust Officer caused the corporate seal of said corporation to be affixed to said instrument as said Trust Officer own free and voluntary act as the free and voluntary act of the corporation for the uses and purposes therein set forth. Notary Public My Commission Expires: 6-30-88 -10 - STATE OF ILLINOIS), SS COUNTY OF McHENRY) I, the undersigned, a Notary Public, in and for the County and State aforesaid, do hereby certify that the above named Philip S. King and Gerald Helt respectively, VP & Sr TO and Trust Officer of the McHENRY STATE: BANK, Trustee, aforesaid under Trust No. 396 personally known to me to be the same person � w o e names are subscribed to the foregoing instrument as suL�i/ Att Officer and Trust Officer respectively, appeared before me this day in person and severally acknowledged that they signed and delivered said instrument as their own free and voluntary act and as the free and voluntary act and deed of said corporation for the uses and purposes therein set forth and that said Trust Officer then and there acknowledged that as such custodian of the corporate seal of said corporation said Trust Officer caused the corporate seal of said corporation to be affixed to said instrument as saidTrust Officer own free and voluntary act as the free and voluntary act of the corporation for the uses and purposes therein set forth. Notary'Public My Commission Expires: 6-30-88 -11- STATE OF ILLINOIS) ) SS COUNTY OF McHENRY) I, the undersigned, a Notary Public, in and for the County and State aforesaid, do hereby certify that the above named Philip S. King and Gerald Helt respectively„ VP & Sr TO and Trust Officer of the McHENRY STATE BANK, Trustee, aforesaid under Trust No. 456 personally known to me to be the same person w ogfe names are subscribed to the foregoing instrument as suci/rust Officer and Trust Officer respectively, appeared before me this day in person and severally acknowledged that they signed and delivered said instrument as their own free and voluntary act and as the free and voluntary act and deed of said corporation for the uses and purposes therein set forth and that said Trust Officer then and -there acknowledged that as such custodian of the corporate seal of said corporation said Trust Officer caused the corporate seal of said corporation to be affixed to said instrument as said Trust Officer own free and voluntary act as the free and voluntary act of the corporation for the uses and purposes therein set forth. Notary Public My Commission Expires: 6-30-88 -12- STATE OF ILLINOIS) ) SS COUNTY OF McHENRY) I, the undersigned, a Notary Public, in and for the County and State aforesaid, do hereby certify that the above named Philip S. King and Gerald Helt respectively, VP & Sr. TO and Trust Officer of the McHENRY STATE BANK, Trustee, aforesaid under Trust No. 2017 personally known to me to be the same persons whose names are subscribed to the foregoing instrument as suR/frt srt Officer and Trust Officerrespectively, appeared before me this day in person and severally acknowledged that they signed and delivered said instrument as their own free and voluntary act and as the free and voluntary act and deed of said corporation for the uses and purposes therein set forth and that said Trust Officer then and there acknowledged that as such custodian of the corporate seal of said corporation said Trust Officer caused the corporate seal of said corporation to be affixed to said instrument as said Trust Officer own free and voluntary act as the free and voluntary act of the corporation for the uses and purposes therein set forth. Notary,Public My Commission Expires: 6-30-88 7790R -13-