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HomeMy WebLinkAboutOrdinances - ORD-02-1118 - 10/14/2002 - AUTHOR ANNEX AGMT MEYER MATERIAL 157 AC N OF RTE 1ORDINANCE NO. ORD-02-1118 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT WITH CHICAGO TITLE LAND TRUST COMPANY AS TRUSTEE UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED AUGUST 5, 1989 AND KNOWN AS TRUST NUMBER 1093520 ("TITLE HOLDER") AND MEYER MATERIAL COMPANY, AN ILLINOIS GENERAL PARTNERSHIP, ("CONTRACT PURCHASER") FOR AN APPROXIMATELY A 157 ACRE PROPERTY LOCATED ON THE NORTH SIDE OF ILLINOIS STATE ROUTE 120 APPROXIMATELY ONE-HALF MILE EAST OF THE INTERSECTION OF WONDER LAKE ROAD AND ILLINOIS STATE ROUTE 120, IN MCHENRY COUNTY, ILLINOIS WHEREAS, Chicago Title Land Trust Company as Trustee under the provisions of a Trust Agreement dated August 5, 1989 and known as Trust Number 1093520 is the ("TITLE HOLDER") and Meyer Material Company, an Illinois General Partnership is the ("CONTRACT PURCHASER") of the real estate located on the north side of Illinois State Route 120 approximately one-half mile east of the intersection of Wonder Lake Road and Illinois State Route 120, in McHenry County, Illinois; and WHEREAS, notice of a public hearing was published in the Northwest Herald, a newspaper of general circulation in the City of McHenry, within the time provided by law, notifying the public of a hearing on said Annexation Agreement before the Corporate Authorities of the City of McHenry; and WHEREAS, the Corporate Authorities of the City of McHenry have held the public hearing as required by law and have found that entry into said Annexation Agreement is in the best interest of the City. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS AS FOLLOWS: SECTION 1: The annexation agreement, bearing the date of October 1, 2002, between the City of McHenry, a Municipal Corporation in the State of Illinois, Chicago Title Land Trust Company as Trustee under the provisions of Trust Agreement dated August 5, 1989 and known as Trust Number 1093520, TITLE HOLDER and Meyer Material Company, an Illinois General Partnership, CONTRACT PURCHASER, be and the same is hereby approved. A complete and accurate copy of said annexation agreement, labeled "Meyer Material North Annexation Agreement", is attached to this ordinance and incorporated herein by reference. SECTION 2: The Mayor and City Clerk are hereby authorized to affix their signatures as Mayor and City Clerk to said annexation agreement for the uses and purposes therein set forth. SECTION 3: All Ordinance or parts thereof in conflict with the terms and provisions hereof are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be published in pamphlet form by and under the authority of the corporate authorities of the City of McHenry, McHenry County, Illinois. SECTION 5: This Ordinance shall be in full force and effect from and after its passage, approval, and publication in pamphlet form as provided by law. PASSED THIS 14TH DAY OF OCTOBER AYES: BOLGER, GLAB, LOW, WIMMER ALTHOFF ABSTAINED: NONE ABSENT: NONE NOT VOTING: NnNF APPROVED THIS 14TH DAY OF OCTOBER ATTEST: CI ERK 2002 2002 ►I MEYER MATERIAL NORTH ANNEXATION AGREEMENT THIS ANNEXATION AGREEMENT is made and entered into this 14TH day of OCTOBER , 2002 by and between the CITY of McHenry, State of Illinois, an Illinois municipal corporation ("CITY") and MEYER LAND HOLDINGS, INC. ("TITLE HOLDER") and MEYER MATERIAL COMPANY, an Illinois general partnership, ("LESSEE") shall collectively be referred to as "OWNER." RECITALS A. TITLE HOLDER is the record OWNER of the parcel of real estate legally described and depicted on Exhibit "A", attached hereto and made a part hereof (hereinafter 'PREMISES"). B. LESSEE has a contract with TITLE HOLDER to lease the PREMISES. C. OWNER filed a petition with the City Clerk to annex PREMISES to the CITY's corporate limits, contingent upon the terms and provisions of this agreement, which petition has been filed in accordance with 65 ILCS 5/7-1-8, and the ordinances of the CITY. D. PREMISES are currently improved with a single-family residence and farm buildings and is zoned A-1 Agricultural, pursuant to the McHenry County Zoning Ordinance. E. PREMISES have electors residing thereon, and each elector has properly executed the Petition for Annexation to the CITY. F. PREMISES are contiguous to the CITY's corporate limits and are not located within the boundaries of any other municipality or subject to an Annexation Agreement with any other municipality, and may be annexed to the CITY in accordance with 65 ILCS 5/7-1-1, et seq. G. The CITY has concluded that the annexation of the PREMISES in accordance with this agreement will further the growth of the CITY, enable the CITY to control the development of the area, and serve the best interests of the CITY and its inhabitants. H. The CITY does not maintain fire protection service or public library; therefore, no notice is required to be given to the trustees of the respective fire protection district or library district. Furthermore no township roads are involved in the annexation of PREMISES. I. This Agreement is made pursuant to and in accordance with the provisions of 65 ILCS 5/11-15.1-1, et seq. J. Prior to the date of this Agreement, all public hearings were held upon proper notice and publications as are required for the CITY to effect the terms of this Agreement. NOW, THEREFORE, in consideration of the covenants and conditions herein contained, IT IS HEREBY AGREED AS FOLLOWS: 1. Annexation. Upon execution of this Agreement, the CITY shall enact an ordinance annexing PREMISES to the CITY, including all adjacent streets and highways, as required by law. A copy of said ordinance, together with an accurate plat of the PREMISES, shall be filed with the County Clerk of McHenry County and recorded with the Recorder of Deeds of McHenry County. This Agreement in its entirety, together with the aforesaid Petition for Annexation, shall be null, void and of no force and effect unless the PREMISES are zoned and classified as provided in this Agreement by the adoption of ordinances by the CITY immediately following execution of this Agreement. 2. Zoning and Conditional Use Permit. Immediately following the annexation of the PREMISES, the CITY shall adopt an ordinance granting a zoning map amendment to RS-1, Low -Density Single -Family Residential, together with a Agricultural and Mining Overlay District and a Conditional Use Permit for a sand and gravel operation on the PREMISES. The Conditional Use Permit for a sand and gravel operation shall be valid for a period of five (5) years from the date of execution of this agreement and thereafter, may be renewed by the City Council for up to two, thirty (30) month periods. The CITY shall not unreasonably withhold said renewal provided that there have been no substantial continuing or substantial recurring violations of this Agreement, of the federal or state mining environmental, and reclamation laws and regulations, or of the City McHenry Zoning Ordinance. 3. Annexation Fees a. If PREMISES are not Mined. In the event PREMISES are not mined in accordance with the overall mining and reclamation plan referred to in Paragraphs 4 and 5, herein, and residential development then occurs, prior to approval of any preliminary plat of subdivision relating to PREMISES, in addition to those fees required to be paid during the subdivision process, the sum of $1,000.00 per acre shall be paid to the CITY for each acre of the PREMISES. b. If PREMISES are Mined. The parties acknowledge that the material mined from the PREMISES will be transported by conveyor to the Meyer Material 2 Pit on the south side of Illinois Route 120 where it will be processed. Under a previous Annexation Agreement between the CITY and Meyer Material Company dated the 22"d day of April, 1998, Paragraph 7 a. of that Agreement states as follows: "a. The annexation fees for the Parcels B and C shall be paid in annual installments, which shall be prepaid on May 1 of each year whenever mining operations have been conducted thereon at any time during the preceding year, and shall be calculated by multiplying 2,000,000 tons times the following fees per ton: 2¢ per ton for the first ten million tons, or until March 31, 1993, whichever event occurs first; 2.50 per ton for the second ten million tons, or until March 31, 1998, whichever event occurs first; 3¢ per ton for the third ten million tons, or until March 31, 2003, whichever event occurs first; 4¢ per ton for the fourth ten million tons or until March 31, 2008, whichever event occurs first; 5¢ per ton for the fifth ten million tons, or until March 31, 2013, whichever event occurs first; 6¢ per ton for the sixth ten million tons, or until March 31, 2018, whichever event occurs first. If the per ton rates are increased prior to a scheduled five year, March 31, increment date, then the parties agree that said amount will not again be increased until either (1) another five-year period has elapsed following the increase or (2) another ten million tons are mined, whichever occurs first. In the event of such an unscheduled increase, the March 31 increase dates thereafter become void, and future increases shall only occur either (1) after another five-year period has elapsed or (2) following the mining of another ten million tons, whichever occurs first." The parties acknowledge that the two million tons referred to in Paragraph 7 a. above, will include tons being mined from the PREMISES. The parties agree that the OWNER will pay 3.75 cents per ton for any material mined on .91 the PREMISES until March 31, 2003. After such time, the per ton rates referred to in Paragraph 7 a. above shall apply, not only for these PREMISES but for all other parcels that Meyer Material Company presently has the right to mine under the terms and provisions of the Annexation Agreement dated April 22, 1998. In addition, Meyer Material Company agrees that tonnage mined from the PREMISES and any adjoining PREMISES located in the CITY owned by Meyer Material Company, which is used in the ready -mix plant, shall be included in the tonnage used to calculate the annexation fee described hereinabove. c. After the PREMISES are mined in accordance with the overall mining and reclamation plans referred to herein, but prior to the recording of any final plat for residential development on the PREMISES, OWNER shall pay to the CITY, $1,000 for each residential lot platted. 4. Overall Mining Plan. With regard to PREMISES, the OWNER will extract sand and gravel and other earth materials pursuant to the overall mining plan in the Meyer Material Company, McHenry -West Operation Addition prepared by the Smith Engineering Report Job No. MEYE-00751-10 dated 12/15/01, set forth in Exhibit "B", attached hereto and made a part hereof. 5. Reclamation Plan. After each phase is excavated and OWNER commences to excavate the next phase, the phase just completed will undergo a reclamation and restoration process to bring the phase just completed, except for that portion of the phase located in the bermed areas and under water, to a condition suitable for crop farming of alfalfa or hay within eleven (11) months after the commencement of excavation operations on the next phase, and the reclamation and restoration will be completed according to the Reclamation Plan set forth in Exhibit "C", attached hereto and made a part hereof, within a maximum period of three (3) years after the commencement of excavation on the said next phase. 6. Reclamation Bond. OWNER shall deposit with the CITY a bond in a type and form approved by the CITY, in the amount of $2,500 per acre being mined or reclaimed on the PREMISES. Said bond shall be released or reduced upon inspection by the CITY that reclamation of that portion of the PREMISES has been reclaimed in accordance with the Reclamation Plan set forth in Exhibit C, attached hereto. 7. Storm Water Detention. OWNER shall implement measures, as approved by the City Engineer with advice of qualified consultants as the City Engineer may require, to prevent the direct discharge of farming chemicals or pesticides into the lake. Upon subdividing of the parcel, the OWNER shall release water in accordance with the requirements of the CITY'S Subdivision Control Ordinance. 4 8. Screening/Landscaping, a. Berms/Landscaping. OWNER shall cause the external boundaries of PREMISES to be fully bermed and landscaped in accordance with the plan dated 5/02/02, prepared by William A. Ruth Landscape Co., Inc, attached hereto as Exhibit D, and the Smith Engineering Report, Job No. MEYE- 00751-10, dated 12/15/01, set forth in Exhibit B attached hereto and made a part hereof. At a minimum, the berm shall be constructed in an undulating manner in heights no less than ten (10) feet, with an exterior slope of 4:1. The OWNER shall cause the berm to be seeded as approved by the CITY. Upon compliance with the reclamation plan in Exhibit "C", relating to PREMISES, OWNER may be permitted to remove portions of the berm constructed pursuant this Paragraph subject to CITY Council's prior approval. b. Fencing. OWNER shall cause PREMISES to be enclosed by a fence, similar in design to the fencing already existing along Route 120 south of PREMISES, which is the farm -style fence consistent with the requirements of the Zoning Ordinance of the CITY of McHenry. C. Screening Maintenance. At all times during the term of this Agreement, OWNER shall be obligated to maintain the berm and fence constructed pursuant to the terms of Paragraph 8. OWNER's maintenance shall include monthly inspections of PREMISES for debris, damage and necessary improvements, as determined by the CITY. Written reports to the CITY, on a quarterly basis, shall be submitted by the OWNER, detailing its inspections and efforts to comply with this Paragraph 8 c. 9. Payment for Tree Removal. OWNER acknowledges that mature trees existing on the PREMISES will be removed to accommodate the sand and gravel operation, in accordance with the tree survey dated April 13, 2002, by Urban Forest Management, Inc. In accordance with the CITY's Tree Preservation Ordinance, OWNER agrees to pay the sum of $84,600 to the CITY for said tree removal, to be used at the CITY's sole discretion for tree planting and beautification in the CITY. Said payment shall be made within 120 days of the date of execution of this agreement or before the OWNER begins to remove the trees, whichever is later. 10. Compliance with Illinois EPA and DNR Requirements. The CITY acknowledges that the mining operation on the PREMISES is regulated by the State of Illinois Environmental Protection Agency (IEPA) and Department of Natural Resources (IDNR). OWNER is required to secure an air permit from the IEPA Bureau of Air which imposes permit conditions and requires submission of annual emission reports, and a water permit from IEPA Bureau of Water which imposes permit conditions, and a surface mining permit from the IDNR which will require the posting of a surety bond, result in annual inspections, periodic aerial photographs and 4 annual submissions of acreage reports. The OWNER shall request the Department of Mines and Minerals of the State of Illinois and [EPA to furnish directly to the CITY the following department or agency materials and information relating to the OWNER's operation on the PREMISES on a current and ongoing basis throughout the time that any operations are being conducted thereon pursuant to the conditional use permit granted by the CITY hereunder to the OWNER: a. Non-compliance advisories, violation notices, inspection reports, permit renewals, affected acreage reports, inspection reports, aerial photographs, bond releases and bond revocations, stop work orders, and complaints. b. Prior to commencing mining activities on the PREMISES, OWNER shall provide evidence to the CITY that it has the following: air permit from the Illinois EPA Bureau of Air, water permit from the Illinois EPA Bureau of Water, surface mining permit from IDNR. OWNER will submit to CITY copies of all documents referred to in Paragraph 10.a. within 24 hours of receipt of same. C. As to the existing well on the PREMISES, the OWNER will provide evidence of the ability, consistent with Illinois Environmental Protection Agency regulations, to mine within 200 feet of said well. d. Air Quality. OWNER shall comply with Illinois EPA requirements for air quality. At any time during the term of this agreement, an additional air quality study may be performed at Valley View School, at the CITY's sole discretion. All such studies shall be equal to or surpassing the testing parameters of the air quality study performed by SECOR International, dated 11/22/02. If the results of such studies reveal that the air quality is not in compliance with the testing standards, OWNER agrees to pay the full cost of the air quality study and will take immediate corrective measures to remedy the problem. e. Groundwater Protection. OWNER shall install two up gradient and two down gradient monitoring wells on the PREMISES at locations mutually agreed upon by OWNER and CITY. Reports on the quality of the groundwater shall be submitted to the CITY on a quarterly basis and reports on the level of the groundwater shall be submitted on a monthly basis and any test result requirements as to the groundwater shall be in compliance with those test results required by the McHenry County Groundwater Monitoring and Protection Ordinance adopted as Ordinance No. 09211-2200-77. If Meyer is found to be in violation of any of the requirements of said ordinance, immediate corrective measures shall be taken to remedy the problem. f. Noise. OWNER shall comply with CITY and State of Illinois noise, rules, regulations and ordinances. The foregoing material and information may be considered by the CITY in determining whether or not there has been any substantial or recurring violations during the initial five (5) year term of the Conditional Use Permit which would warrant a revocation by the CITY of the subsequent two, thirty (30) month renewal term of said Conditional Use Permit or any other action pursuant to this Agreement or under any of the CITY Ordinances. 11. Inspections. Representatives of the CITY may enter upon the PREMISES where such conditional use operation is 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 the aforesaid Reclamation Plan, and of the Agreement have been complied with. Said inspections shall occur no fewer than three (3) times per calendar year. 12. Improvements and Modifications to Illinois State Route120. a. Tunnel Under Illinois State Route 120. The CITY agrees to cooperate with the OWNER in their request to seek approval from the Illinois Department of Transportation (IDOT) for construction of a tunnel under said Route 120 for use in their sand and gravel operation. OWNER shall furnish to the CITY copies of all permits and approvals from IDOT relating to said tunnel. b. Left Turn Lane. OWNER agrees to install a left -turn lane for westbound traffic at OWNER's present entrance from Illinois State Route 120, in conjunction with the planned IDOT improvements for said Route 120, at OWNER's sole cost and expense. If IDOT fails to make planned Route 120 improvements within 26 months of the date of this agreement, OWNER shall install the left turn lane within three months thereafter. c. Future Repairs to State Route 120. OWNER agrees to make necessary repairs to State Route 120, subject to compliance with the terms of OWNER's agreement with IDOT, if settlement exceeds Y 2" over the tunnel or if the tunnel causes pavement damage. d. Abandonment of Tunnel. Within twelve (12) months after completion of mining on the PREMISES, OWNER shall fill the tunnel with grout material, subject to IDOT approval. 13. Access to PREMISES. To accommodate vehicular traffic necessary for mining and earthwork, only a service road shall be allowed from State Route 120 to serve the PREMISES. The service road shall only be used by vehicles performing earthwork, excavation of materials, and those performing service/maintenance to earthwork and excavation vehicles on the PREMISES. The service road shall not be used by 7 vehicles to transport any materials mined from the PREMISES. The tenants who are residents on the PREMISES and their guests may continue to use the existing driveway for access to the leased residence. 14. Servicing of Vehicles. Whenever possible, all vehicles to be serviced on the PREMISES shall be serviced at a location sufficient to contain and recover all spilled fluids. Further, adequate precautions shall be made to reduce the possibility of spills. Any spill of fuel, oil, or other similar item shall be reported to the CITY within 24 hours of occurrence. 15. Municipal Lot Dedication. OWNER shall donate to the CITY, for unrestricted municipal use, an area of approximately three (3) acres presently owned by OWNER at a mutually agreeable location. Said land donation shall be made by OWNER within 36 months of the date of execution of this Agreement, by recordable Warranty Deed or such other conveyance as the CITY shall agree, free from any encumbrances, accompanied by a plat of survey and a title insurance policy in the amount of the value of the parcel, paid for and prepared by OWNER. 16. Sanitary Sewer and Water. The CITY makes no representation or warranty that there will be any municipal sanitary sewer treatment plant or sanitary sewer main capacity or municipal water available to serve PREMISES at any time during the term of this Agreement. The provisions of any such service shall be subject to future consideration by the parties. 17. Donations. Contributions and Fees. OWNER acknowledges that the subsequent development of the PREMISES for single-family residences will impact schools, parks, the library and fire protection districts, and other public services within the CITY. To reduce the effects of this impact, and as a condition of this Agreement, OWNER shall be obligated to pay and/or donate, or cause to be donated to the CITY, or provide improvements for the benefit of the CITY as follows: a. Fees. The sum of $546 per residential unit shall be paid to the CITY upon issuance of each building permit relating to PREMISES. The sum of $1,838 per residential unit shall be paid to the CITY ($1,030 to School District 15, $750 to School District 156 and $58 to the Library District) upon issuance of each Certificate of Occupancy. b. Cash Donations. OWNER shall be obligated to pay to the CITY certain cash donations per single-family dwelling unit developed on the PREMISES, upon issuance of each building permit. The cash donations payable by the OWNER to the CITY shall be calculated as follows: 0 School Districts Parks Library District Fire District Total Per Unit Single Family Detached 2 or Less Bedrooms $2,121 $3,204 $265 $265 $5,855.00 3 Bedrooms $4,864 $4,605 $265 $265 $9,999.0 4 Bedrooms $5,591 $5,979 $265 $265 $12,100.00 5 or More Bedrooms $4,912 $5,988 $265 $265 $11.430.00 The Cash Donations referred to in this chart shall collectively be referenced as "Minimum Cash Contribution Amounts." ii. In the event the Minimum Cash Contribution Amount, as calculated above, is less than the cash contribution amounts set forth in the CITY's ordinances, as amended from time to time, an amount equal to the amounts specified in the CITY's ordinances shall be paid, rather than the Minimum Cash Contribution Amount provided in this Agreement. iii. In the event the CITY's cash contribution ordinance, and any other ordinance of the CITY relating to developer cash contributions for school, libraries, parks and fire districts, is repealed or declared by a court of law to be found unenforceable and all appeals have been exhausted, OWNER agrees to pay, subsequent to such final court action, the Minimum Cash Contribution Amount set forth in paragraph (a) above. In the event such a final court order requires the CITY or School Districts to return or refund monies paid by the OWNER pursuant to the CITY's ordinances, OWNER expressly agrees that it will allow the CITY or School Districts to retain the Minimum Cash Contribution Amount previously paid by OWNER. It is the express intent of the OWNER to release the CITY and School Districts from any liability or obligation to refund the Minimum Cash Contribution Amount paid pursuant to this Paragraph under any circumstances. iv. OWNER hereby releases the CITY from any and all liability or damage to OWNER and waives any right to challenge, by lawsuit or otherwise, the validity, legality or enforceability of the cash donation provision set forth in this Paragraph or purpose for which the money is spent. OWNER agrees not to pay any fees under protest. d. Donations Distinguished from Fees. Other than the donations specified in the foregoing paragraphs, during the term of this Agreement, and irrespective of 0 any existing, new or revised donation ordinances of the CITY, OWNER shall not be required to donate any land or money to the CITY, or by action of the CITY, to any other governmental body. Building permit fees, water and sewer connection and capital development fees, and other similar fees which are charged for specific services provided by the CITY, shall be payable in accordance with the CITY ordinances in existence and as amended from time to time, except as specifically provided in this Agreement. e. Distribution. That portion of these fees to be distributed to the schools, as determined exclusively by the CITY, may be distributed for the benefit of some or all schools within School Districts 15 and 156, at the discretion of the City Council. To the extent any of these funds are distributed to said School Districts, they may be used for operating expenses at those schools within School Districts 15 and 156, as directed by the City Council, at the time of distribution. In the event a distribution agreement in a form approved by the CITY is not executed by the School Districts prior to distribution of said funds to the School Districts, the CITY may retain the entire amount paid pursuant to this paragraph for CITY use. Nothing herein is intended to create third party beneficiary rights in School Districts 15 and 156 or the Library District. Annual Adjustment. At the end of each one-year period, with the first adjustment occurring on May 1, 2003, the fees referenced in the preceding paragraphs a) i, a) ii, and b) i shall be adjusted upward by the percent that the Chicago Area Consumer Price Index has moved upwards since December 31, 2001, and every December 315t thereafter. For the purpose of this paragraph, the price index to be used for comparative purposes shall be that index for the annual average Chicago area CPI-U, as published by the United States Department of Labor, Bureau of Labor Statistics. 18. Future Residential Development. a. Within one (1) year after completion of mining of the PREMISES, OWNER shall submit to the City a preliminary plat of subdivision to divide the property into lots for single-family residential development in accordance with the City's RS-1 zoning requirements. b. It is agreed by the parties that the CITY shall allow any future residential development on the PREMISES after site reclamation to utilize private wells and sanitary septic systems pursuant to the general regulations therefore approved by the McHenry County Health Department. C. OWNER acknowledges that it may be required to provide stub roads to adjoining properties at the time of final Plat of Subdivision of the PREMISES. ITS] d. OWNER will not object to being included in a Special Service Area (SSA) for the purpose of providing municipal sewer and/or water to the PREMISES, on the condition that the pro-rata share of the SSA attributable to the PREMISES is based on the number of residential units and not on acreage. 19. Expansion of Mining Activities. The OWNER, successor owners of record and their heirs, assigns, and lessees agree that they will not apply for or seek approval from the CITY or any other governmental entity to mine any property to the north of the PREMISES up to McCullom Lake Road, east of the PREMISES to Martin Road, or west of the PREMISES to Wonder Lake Road. 20. Binding Effect and Term. This Agreement shall be binding upon and inure to the benefit of the parties hereto, successor owners of record and their heirs, assigns, and lessees, and upon successor municipal authorities of the CITY and successor municipalities for a period of ten (10) years from the date of execution hereof, and any extended time agreed to by amendment to this Agreement. 21. Amendment. This agreement may only be amended by written instrument executed by all parties hereto. Provided, however, in the event title to the PREMISES, in whole or in part, is transferred to successors in interest, future amendments relating to the PREMISES may be made by and between the CITY and the title holders to the parcel specifically requesting the amendment without consent required by other record owners of the PREMISES. 22. Notice and Default. Before any failure of any party to this Agreement to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the party alleging the breach shall provide notice to the party alleged to be in default specifying the nature of said default, and thirty (30) days elapses from the receipt of said default notice without the default being cured. Notice shall be in writing and delivered via certified mail, addressed as follows: CITY Douglas K. Maxeiner, City Administrator 333 S. Green Street McHenry, IL 60050 Meyer Land Holdings, Inc. 1819 N. Dot Street McHenry, Illinois 60050 Meyer Material Company 11 Attn: Allen Miller 1819 N. Dot Street McHenry, Illinois 60050 With a copy to: Militello, Zanck & Coen, P.C. 40 Brink Street Crystal Lake, Illinois 60014 23. Stop Orders. The CITY will issue no stop orders directing work stoppage on buildings or parts of the development without setting forth the section of CITY ordinances or of this Agreement allegedly violated by OWNER, and OWNER may forthwith proceed to correct such violations as may exist; provided, however, that the CITY shall give notice in advance to the OWNER of its intention to issue stop orders at least 24 hours in advance of the actual issuance of such stop orders, except in the event a health, life or safety emergency is deemed to exist by the CITY. 24. Ordinance Changes. Except as otherwise specified herein, all CITY ordinances, as well as state and federal regulations, shall apply to the PREMISES, OWNER, and all successors and assigns in title. If, during the term of this Agreement, the provisions of the existing ordinances and regulations which relate to the development, redevelopment, reclamation, mining, subdivision, construction of improvements, buildings, appurtenances, and all other development of any kind and character of the PREMISES, are amended or modified in any manner so as to impose more strident requirements in the development, redevelopment, reclamation, mining, subdivision, or construction referred therein, such increased requirements shall, unless otherwise excepted herein, be effective as applied to the PREMISES so long as such amendments or modifications are nondiscriminatory in their application and effect throughout the CITY (excepting those developments in the CITY having annexation agreements - past, present, or future - providing otherwise). If, during the term of this Agreement, except as otherwise specifically agreed upon in this Agreement, any existing, amended, modified, or new ordinances, codes or regulations affecting the zoning, subdivision, development, redevelopment, reclamation, mining, construction of improvements, buildings or appurtenances, or any other development of any kind or character upon the PREMISES, are amended or modified in a manner which imposes less restrictive requirements on development of, or construction upon, properties in similarly zoned or developed parcels within the CITY, then the benefit of such less restrictive requirements shall inure to the benefit of the OWNER, and the OWNER may elect to proceed with 12 respect to the development of, or construction upon, the PREMISES with the less restrictive amendment or modification applicable generally to all properties within the CITY. 25. Standards for Operation. It is agreed by the parties that the Standards for Operation found in Chapter XIII, Section B, pages 333-336 of the CITY's Zoning Ordinance, as existing on the date of this Agreement, shall regulate the OWNERs activities and the operations on the PREMISES during the ten (10) year term of this Agreement, and the provisions contained therein shall not be altered or amended as they apply to the PREMISES. 26. Obligations. By signing this Agreement CONTRACT PURCHASER binds itself to comply with all of the obligations of the OWNER referenced herein. All obligations of the OWNER in the Agreement, including monetary obligations in existence now, as well as those which may come to exist in the future as a result of this Agreement, shall constitute covenants running with the land; and such monetary obligations shall also be liens upon the land. OWNER hereby consents to the filing of a lien on the PREMISES for which the obligations are owned when any obligational are more than ninety (90) days overdue. 27. Time of Essence. It is understood and agreed by the parties hereto that time is of he essence of this Agreement, and that of the parties will make every reasonable effort, including the calling of special meeting, to expedite the matter hereof. It is further understood and agreed by the parties that the successful consummation of this Agreement requires their continued cooperation. 28. Enforceability. It is agreed that the parties to this Agreement may enforce and compel performance, whether by law or in equity, by suit, mandamus, injunction, declaratory judgment, or other court procedure, only in courts of the State of Illinois; no such action maybe brought in any Federal court. In the event that either party to the Agreement files suit to compel performance by the other, the prevailing party shall be entitled to recover, as part of the costs otherwise allowed, its reasonable attorney's fees incurred therein. 29. Waiver. The failure of the CITY to insist, in any one or more instances, upon performance of any terms or conditions of this Agreement, shall not be construed as a waiver of future strict performance of any such term, covenant or condition and the obligations of the OWNER shall continue in full force and effect. 13 30. Severability. If any provision of this Agreement, other than the provisions relating to the requested zoning changes and Preliminary Plat described herein and the ordinances adopted in connection therewith, is held invalid by any court of competent jurisdiction, such provision shall be deemed to be excised hear from and the invalidity thereof shall not affect any of the other provisions contained herein. N WITNESS WHEREOF, the CITY and the OWNER have hereunto set their hands and seals and have caused this instrument to be executed by their duly authorized officials and the corporate seal attached hereto, all on the day and the year first above written. CITY OF McHENRY, an Illinois Municipal Corporation ByC:�' Mayor Attest: c City I k MEYER MATERIAL COMPANY, an Illinois General Partnership By: AIC-Meyer, L.L.C.. General Partner and Meyer erial Acquisition Corporation, The Mana ng Member General Partner By:---� Its:✓r5��»� MEYER LAND OLDING/S, INC. Its: 7 4- 14 STATE OF ILLINOIS ) SS: COUNTY OF A* �6ivIL ) ✓Pi✓ Q dt/9VAIAW , being first duly sworn upon oath, deposes and says that he is the h�.+vr of MEYER MATERIAL COMPANY, an Illinois General Limited Partnership; that he has read the foregoing Annexation Agreement by him subscribed; that he has personal knowledge of the contents thereof and that the contents thereof are true in substance and in fact; and that he s the power to execute this agreement on behalf of MEYER MATERIAL COMPA . . SUBSCRIBED AND SWORN TO BEFORE ME THIS �e(o,DAY OFF L 2002 /V "OFFICIAL SEAL" ' MAUREEN E. CLAUSEN Notary Public, State of Illinois My Commission Expires 08/15/05 STATE OF ILLINOIS ) ) SS: COUNTY OF &tk1,6AJ4) �U. LJOL J • 41-i h04 , being first duly sworn upon oath, deposes and says that'he is the _ M A,\I0 (L of CITY OF McHENRY that he/she has read the foregoing Annexation Agreement by him subscribed; that he/she has personal knowledge of the contents thereof and that the contents thereof are true in substance and in fact; and that he has the power to execute this agreement on behalf of the CITY OF McHENRY. SUBSCRIBED AND PWORN TO BEFORE ME THIS DAY OF J r _, 200A 3 E w1GIAL SEAL" hlean M. #runaer Puts:c, State of Illinois ssion Expires 04/29/2004 7 A� )-�)- k4,5,) 15 STATE OF ILLINOIS ) ) SS: COUNTY OF /i%*,1(✓fV4 ) � . AZ �,v/;P , being first duly sworn upon oath, deposes and says that he is the of MEYER LAND HOLDINGS, INC.; that he has read the foregoing Annexation Agreement by him subscribed; that he has personal knowledge of the contents thereof and that the contents thereof are true ' substance and in fact; and that he has the power to execute this agreement on behalf MEYER LAND HOLDINGS, INC. ;� "OFFICIAL SEAL" �`�� Z., MAUREEN E, CLAUSEN ;� Notary Public, State of Illinois My Commission E)pires 08115105 0400 SUBSCRIBED AND SWORN TO BEFO E ME THIS ��Lo4-DAY OF2002 (D O e if 0 c, /6� Notary Public 16 EXHIBIT "A" (Legal Description and Map) 17 EXHIBIT "A" (Legal Description and Map) 17 EXHIBIT "B" (Overall Mining Plan and Engineering Plans) On File with the City Clerk's Office 18 EXHIBIT "C" (Reclamation Plan) On File with the City Clerk's Office 19 EXHIBIT "D" (Landscaping Plan) On File with the City Clerk's Office all