HomeMy WebLinkAboutOrdinances - ORD-18-1870.1 - 04/30/2018 - Meyer AgrementORDINANCE NO. ORD-18-1870
AN ORDINANCE AUTHORIZING THE MAYOR'S EXECUTION OF A STANDSTILL
aka TOLLING AGREEMENT BETWEEN MEYER MATERIAL COMPANY AND THE
CITY OF MCHENRY TO EXTEND OPERATONS AT THE SITE UNTIL AUGUST 6,
1018
WHEREAS, the City of McHenry, McHenry County, Illinois, is a home rule municipality
as contemplated under Article VII, Section 6, of the Constitution of the State of Illinois, and the
passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as
granted in the Constitution of the State of Illinois.
NOW, THEREFORE, BE IT ORDAINED by the CITY COUNCIL of the CITY OF
MCHENRY, McHenry County, Illinois, as follows:
SECTION 1: The City Council has determined it is in the best interest of the City to
authorize the Mayor's execution of a Standstill aka Tolling Agreement between Meyer Material
Company and the City of McHenry to extend operations at the site until August 6, 2018 as
attached hereto and made part hereof as Exhibit A.
SECTION 2: The Mayor is hereby authorized to affix his signature as Mayor to Exhibit
A 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hereof are hereby repealed to the extent of such conflict.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 bylaw.
APPROVED and ADOPTED this 30th day of April 2018.
Voting Aye: Curry, Schaefer, Condon, Devine, Glab, Mihevc, Santi
Voting Nay: None
Absent: None
ayor
A�T'T'EST. A
Deputy City Clerk
Exhibit A
Agreement
STANDSTILL a/k/a TOLLING AGREEMENT
This Standstill a/k/a Tolling Agreement ("Tolling Agreement") is made and effective as of
this 30"' day of April, 2018, by and between Meyer Material Company, LLC ("Meyer") and the
City of McHenry ("City").
RECITALS
Whereas, Meyer currently operates a commercial sand and gravel extraction and
processing business on the south side of Illinois Route 120, in the City, on property it owns,
consisting of several parcels depicted and legally described on the attached Exhibit A ("Subject
Property");
Whereas, the Subject Property is subject to terms of prior annexation agreements, including
the following:
1. Ordinance No 76-93--Annexation Agreement dated December 20, 1976 (Parcel A)
2. Ordinance No 77-122--Annexation dated October 17, 1977 (Parcel B)
3. Ordinance No 88-452--Annexation Agreement dated May 4, 1988 (Parcel C)
4. Ordinance No 90-560--Annexation Agreement dated October 3, 1991 (Parcel D)
5. Ordinance No 98-865--Annexation Agreement dated April 22, 1998 (Parcel E)
Collectively ("Prior Annexation Agreements");
Whereas, the Prior Annexation Agreements, are due to expire at midnight on or about May
4, 2018;
Whereas, in conjunction with the Prior Annexation Agreements, the Subject Property is
also subject to the terms of prior special use permit Ordinances adopted by the City, which regulate
the operation of Meyer's commercial sand and gravel business on the Subject Property, including
the following:
1. Ordinance No. 88-453 adopted on or about May 4, 1998, extending the term of the
special use permit for Parcel C of the Subject Property to May 4, 2008.
2. Ordinance No. 88-454 adopted on or about May 4, 1998, extending the term of the
special use permit for Parcel B of the Subject Property to May 4, 2008.
3. Ordinance No.90-561 adopted on or about August 23, 1990, extending the term of
the special use permit for parcel D of the Subject Property to May4, 2008.
4. Ordinance Nos. 98-865, 98-867 and 98-868 adopted on or about April 22, 1988
extending the special uses on Parcels B-E of the Subject Property to May 4, 2108.
Collectively ("Prior Special Use Ordinances").
Whereas, the Prior Special Use Ordinances are also due to expire at Midnight on or about
May 4, 2018. .
Meyer filed with the City Petitions to extend the Prior Annexation Agreements and Prior
Special Use Ordinances ("Meyer's Extension Requests");
Whereas, the City's Plan Commission recommended to the City Council approval of
Meyer's Extension Requests;
Whereas, two (2) annexation hearings were held by the City Council regarding Meyer's
Extension Requests; and
Whereas, the parties hereto agree they need additional time to negotiate the terms of
extending the Prior Annexation Agreements and Prior Special Use Ordinances and each wish to
work cooperatively in an effort to address the possible extensions without resorting to litigation, if
possible, but without relinquishing or prejudicing their respective rights and positions.
NOW THEREFORE, in consideration of the promises and agreements stated herein, the
adequacy and sufficiency of which is acknowledged as being received by the parties hereto, Meyer
and the City agree as follows:
1. The recitals set forth above are fully incorporated into this Agreement.
2. During the term of this Tolling Agreement, Meyer shall change the time of its
business operations on the Subject Property as follows: All truck loading operations shall start no
earlier than 6:00 a.m. Monday through Saturday. All processing and crushing operations shall
start no earlier than 7:00 a.m. Monday through Saturday.
3. All expiration dates of May 4, 2018, or otherwise, in the Prior Annexation
Agreements and Prior Special Use Ordinances, shall be tolled from the April 30, 2018 until August
6, 2018, unless sooner terminated by either party pursuant to paragraph 7, below.
4. All applicable time periods or time related matters, including, but not limited to,
statutes of limitations, statutes of repose, or laches, with respect to any claims or causes of action
that either party hereto may have against one or the other shall be tolled from April 30, 2018 until
August 6, 2018, unless sooner terminated by either party pursuant to paragraph 7, below
5. No party will bring any action or any claim against the other party, until August 6,
2018, unless and until it provides a written 45-day notice to the other party that it is terminating
this Tolling Agreement, pursuant to paragraph 7, below. As to any action on any claim brought
after the expiration of the tolling period or after any earlier termination of this Tolling Agreement,
any party may raise any defense based on any time period or time related matters, except that no
claim or defense may include the tolling period of this Tolling Agreement as the basis of a time
related defense, including but not limited to statutes of limitation, statutes of repose or laches.
6. No party to this Tolling Agreement makes any admission, expressed or implied, as
to the existence or validity of any claims, causes of action, or defenses which are subject to this
Tolling Agreement.
7. Any party hereto may terminate this Tolling Agreement on 45 days written notice
to the other party.
8. ' This Tolling Agreement may be extended or amended only by the express written
agreement of the parties.
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9. The undersigucd individuals executing this 'Polling Agreement on behalf of their
respective parties represent and warrant that said individuals are authorized to enter into and
execute this Tolling Agreement on behalf of such parties, and that this Tolling Agreement shall be
binding on the party on whose behalf they are executing this Tolling Agreement. All terms and
provisions of this Tolling Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal heirs, legatees, beneficiaries, representatives, successors
acid assitnrs.
10. Any notices and other coinunuucations required hereunder sl�.all be in writing and
dcenied to have been given by electronic mail as follows:
If to the City, addressed to:
David W. McArdle <dmcardle@zrfmlaw.com>;
Dcrik Morefield <dcnorefield@ci.mcheiny.il.us>; and
Wayne Jett <wjett@ci.mchenty.il.us>
If to Meyer:
Randi Wille <rtwille a meyennatcrial.com>; and
Tom Zanck <tzanck@zcwlaw.com>
11. Each party shall bear their own cost and expenses, including aitorneys' fees, in the
preparation and enforcement of this Tolling Agreement.
12. Thus Tolling Agreement is governed by Illinois law and venue for enforcement shall
exclusively be in the 22" d Judicial Circuit, McHenry County, Illinois.
13. This Tolling Aeemant may be executed in counterparts, which collectively shall
be deemed a complete instrument. Email or facsimile copies shall have the same force and effect
as an original signature. This Tolling Agreement is the complete agreement of the parties. All
prior discussions, negotiations, and writuigs have been merged into this Tolling Agreement, This
Tolling Agreement cannot be modified except in writing. If any portion of this 'Polling Agreement
is held invalid or illegal, the remaining provisions shall not be affected.
City of McHenry Meyer Material Company, LLC
By:
Its:
David W. McArdle, Attorney for
City of McHein�y
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���.
Its: U ce P r e s N e iw—
Sf
Thomas Zancic, Atton�ney for
Meyer Material Company, LLC
AMENDED AND RESTATED
STANDSTILL a/k/a TOLLING AGREEMENT
This Amended Standstill a/k/a Tolling Agreement ("Amended Tolling Agreement") is
made and effective as of this 1 oth day of July, 2018, by and between Meyer Material Company,
LLC ("Meyer") and the City of McHenry ("City").
RECITALS
Whereas, the parties hereto entered into a Standstill a/k/a Tolling Agreement effective
April 30, 2018 (the "Original Tolling Agreement");
Whereas, the Original Tolling Agreement tolled all applicable time -related matters
related to Prior Annexation Agreements and Prior Special Use Ordinances specifically
referenced in the Original Tolling Agreement;
Whereas, the parties recognize and agree that the time -related matters were tolled from
the date of the Original Tolling Agreement to August 6, 2018; and
Whereas, the parties hereto agree they each need additional time to negotiate the terms of
extending the Prior Annexation Agreements and Prior Special Use Ordinances.
NOW THEREFORE, in consideration of the promises and agreements stated herein, the
adequacy and sufficiency of which is acknowledged as being received by the parties hereto,
Meyer and the City agree as follows:
1. The recitals set forth above are fully incorporated into this Agreement.
2. All applicable time periods or time related matters, including, but not limited to,
statutes of limitation or repose, shall be further tolled from July 10, 2018 through and including
October 1, 2018 ("Tolling Period"). The parties acknowledge that the effect of this Amended
Tolling Agreement, in light of the Original Tolling Agreement, is that the combined Tolling
Period of this Amended Tolling Agreement and the Original Tolling Agreement shall cover
April 30, 2018 through October 1, 2018, inclusive.
3. The City will not bring any action on any claim against Meyer and Meyer will not
bring any action on any claim against the City until October 2, 2018, if at all. As to any action
on any claim brought after the expiration of the Tolling Period, Meyer or City may raise any
defense based on any time period or time related matters, including, but not limited to, any
statutes of limitations or repose. Notwithstanding the above, it is expressly agreed that no failure
to bring any claim or action against Meyer or City during the Tolling Period, or during the
Tolling Period of the Original Tolling Agreement ("Original Tolling Period"), shall constitute a
defense to any action brought thereafter and that the Tolling Period stays the applicable statute of
limitations or repose, as did the Original Tolling Period.
4. No party to this Amended Tolling Agreement makes any admission, express or
implied, as to the existence or validity of any claims, causes of action, or defenses which are the
subject of this Amended Tolling Agreement.
5. Any party hereto may terminate this Amended Tolling Agreement on 45 days
written notice to all other parties, at the addresses as provided below.
6. This Amended Tolling Agreement may be extended or amended only by the
express written agreement of the parties hereto, stating the exact period by which this Amended
Tolling Agreement will be extended or exact terms of the amendment.
7. The undersigned individuals executing this Amended Tolling Agreement on
behalf of their respective parties represent and warrant that said individuals are authorized to
enter into and execute this Amended Tolling Agreement on behalf of such parties, and that this
Amended Tolling Agreement shall be binding on the party on whose behalf they are executing
this Amended Tolling Agreement. All terms and provisions of this Amended Tolling Agreement
shall be binding upon and shall insure to the benefit of the parties hereto and their respective
legal heirs, legatees, beneficiaries, representatives, successors, beneficiaries and assigns.
8. Any notices and other communications required hereunder shall be in writing and
deemed to have been given by electronic mail as follows:
If to the City, addressed to:
David W. McArdle <dmcardle@zrfmlaw.com>;
Derik Morefield <dorefield@ci.mchenry.il.us>; and
Wayne Jett <wjett@ci.mchenry.il.us>
If to Meyer:
Randi Wille <rtwille@meyermaterial.com>; and
Tom Zanck <tzanck@zcwlaw.com>
9. Each parry shall bear their own cost and expenses, including attorneys' fees, in
the preparation and enforcement of this Amended Tolling Agreement,
10. This Amended Tolling Agreement is governed by Illinois law and venue for
enforcement shall exclusively be in the 22"d Judicial Circuit, McHenry County, Illinois.
11. This Amended Tolling Agreement may be executed in counterparts, which
collectively shall be deemed a complete instrument. Email or facsimile copies shall have the
same force and effect as an original signature. This Amended Tolling Agreement is the complete
agreement of the parties. All prior discussions, negotiations, and writings have been merged into
this Amended Tolling Agreement. This Amended Tolling Agreement cannot be modified except
in writing. If any portion of this Amended Tolling Agreement is held invalid or illegal, the
remaining provisions shall not be affected.
City of McHenry
Meyer Material Company, LLC
By:
Its'
David W. McArdle, Attorney for
City of McHenry
By:
A
Its: Vie President
Thomas C. Zanck, Attorney
L
for
Meyer Material Company, LC
Z:\M\IvlcHenryCityoflMeyerMaterial\Standsti11To11ingAgreementAmend. docx
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