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HomeMy WebLinkAboutRESOLUTION - 1-12 - 1/10/2012 - AGREEMENT PAL GROUP INC. AND ORANGE CRUSHRESOLUTION NO. 1-12 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A MUNICIPAL SERVICES AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE, PAL GROUP, INC. AND ORANGE CRUSH, LLC NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and Dul'age, State of Illinois as follows: Section 1: That the Mayor be and is hereby authorized to sign the attached document marked: MUNICIPAL SERVICES AGREEMENT a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is authorized to attest said document upon the signature of the Mayor. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 5 NAYS: 0 ABSENT: 1 PASSED this 101h day of January 2012. APPROVED this 10`h day of January 2012. APPROVED: Mayor Craig B. Johnson Village of Elk Grove Village ATTEST: Judith M. Keegan, Village Clerk AemuoranmeCmsh MUNICIPAL SERVICES AGREEMENT This Municipal Services Agreement ("Agreement") is made this lore day of n r , 2012, between the Village of Elk Grove Village ("Village"), a municipal corporation the State of Illinois ("State"), Pal Group, Inc., an Illinois corporation, ("Developer"), and Orange Crush, LLC, an Illinois Limited Liability Company ("Operator"), and is based on the recitations and contents herein. WHEREAS, the Developer is seeking to build and the Operator seeking to operate an Asphalt Plant and Road Material Recycler ("Plant") on the West side of Elmhurst Road within the corporate boundaries of the Village. WHEREAS, the approval of this Agreement constitutes the exercise of the statutory and home rule authority vested in the Village by the Constitution and the laws of the State of Illinois; WHEREAS, the Developer petitioned for the following text amendments to the Village Code; an amendment to Section 7 -E -4-A Special Uses in the I-2 Industrial District by adding thereto Asphaltic Concrete Plants, and an amendment to Section 7-E-4 by adding there Section D-(2), various Special Conditions for Asphaltic Concrete Plants; WHEREAS, the Developers petitioned for a Special Use in the I-2 Business District for an Asphaltic Concrete Plant, and a Petition for Variations of the Zoning Ordinance; WHERAS, the aforementioned text amendments and special use permit were unanimously approved by the Elk Grove Village Plan Commission, and on December 6, 2011, the Village Board of Trustees directed the Village Attorney to prepare the necessary documents to adopt an ordinance approving the aforementioned text amendments and a special use permit for the Plant; WHEREAS, the Village believes the building and the operation of the Plant is a desirable addition to economic development in the Village, sustaining existing jobs, creating new jobs, sustaining existing sources of revenue and creating new sources of revenue for the Village and neighboring local governments; WHEREAS, the Village, the Developer and the Operator (collectively referred to as the "Parties") recognize that the Plant's presence in the Village provides financial and other benefits to the Village, but also places financial burdens on the Village based upon the additional demand for certain municipal services which will result in the Village's bearing a cost burden that is disproportionate to the cost of providing these services to the rest of the Village's residents and businesses; WHEREAS, the Parties desire to enter into this Agreement in order to compensate the Village for the burden of such additional demand on municipal services, including but not limited to wear and tear on Village roads due to increased truck traffic on and around the Plant, and any increased strain on existing or new infrastructure due to the intensity of the special use at the site; 1 WHEREAS, the Parties acknowledge that it is in the interests of the Parties to work together to fund municipal services at levels which permit the delivery of those services to the Plant at the levels as required for its optimum function and output; WHEREAS, the Developer and Operator desire to have the support and cooperation of the Village in the development and operation of the Plant; WHEREAS, the Developer and Operator desire to provide compensation to the Village for additional costs that the Village will bear for any enhanced municipal services required either at the Plant or in support of the Plant, and the Village desires to provide those required services; WHEREAS, the Parties agree that the payments detailed in this Agreement represent a fair estimation of the disproportionate burden that the Village will bear in providing municipal services to the Plant, relative to the burden of providing such services to the rest of the Village's residents and businesses; NOW, THEREFORE, in consideration of the foregoing, the covenants and agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties enter into this Agreement upon the following terms: Section 1. Incorporation of Preambles. The foregoing preambles are restated and incorporated herein by reference as though fully set forth herein. Section 2. Plant Site. The Developer intends to build and the Operator to operate the Plant on land located within the corporate boundaries of the Village. Section 3. Oblieations of the Villaee. In consideration for the obligations to be undertaken by the Developer and Operator in this Agreement, and in further recognition of the benefits the Plant will bring to the Village, the Village shall do the following: 3.1. The Village will provide normal and customary general municipal services to the Plant as are available to residents and other commercial/industrial entities located in the Village, and enhanced municipal services as may be required by the high intensity of the site's use; and 3.2. The Village agrees to provide reasonable support to the Developer and Operator of the Plant and its contractors and agents in obtaining any and all approvals, legislation, or other enactments required for the Plant from governmental entities and officials of the United States, the State of Illinois ("State") and Cook County, provided that those approvals, 287130-1 2 legislation, or other enactments do not adversely affect the interests of the Village or residents and businesses located in the Village. Section 4. Future Land Acquisition or Development. The scope of this Agreement covers only the Plant operations and the site as outlined in the special use permit application submitted to the Village and considered at the December 6, 2011, Village Board meeting. Should the Developer and/or Operator undertake to acquire any additional land within the Village for additional operations or undertake future development of the Plant Site which materially impacts the Village's municipal services, the Developer and/or Operator will negotiate and execute an amended Agreement to address any issue which may arise therein prior to undertaking such land acquisition or development. Section 5. Municipal Services: Utilities, Infrastructure and General Services. The Village shall maintain, on its public right-of-way, water, sewer, road repair/maintenance, snow and ice removal, street lighting, public sidewalks, public improvements and other municipal services at the levels re sonab yl required by the Plant, which due to the nature of the activities conducted at the property and the intensity of the use may disproportionately impact the level of these services required at and surrounding the Plant, as well as in the Village generally as a consequential impact of the building and operation of the Plant. The Developer shall assume costs to the Village required for the construction ofwater or sewer lines, permits, connection fees, road improvements and other infrastructure improvements needed to accommodate the anticipated needs of the Plant and its operations. Such tangible costs are outside the scope of this Agreement and the costs of same not covered within the fees provided for herein. Section 6. Municipal Services: Public Safety. The Village shall provide police protection, fire protection, enhanced 911 dispatching and emergency medical response services at the levels required by the Plant, which due to the nature of the activities conducted at the property and the intensity of the use may disproportionately impact the level of these services required at and surrounding the Plant, as well as in the Village generally, as a consequential impact of the building and operation of the Plant. Section 7. Payments Pursuant to Agreement. 7.1. Monthly Sum — Year One. Each month, beginning with the first month that a State of Illinois sales tax filing documenting private, non -tax exempt sales is submitted to the Illinois Department of Revenue from the Plant location within the Village, the Operator shall submit to the Village: a) A copy of the filing submitted to the Illinois Department of Revenue indicating amount of sales tax due and owing the State for that month; and 287130-1 b) A check made payable to the Village in the amount equal to .5% of the total amount of sales for that month, according to the aforementioned State filing. 7.2 Monthly Sum — Year Two through Termination of Agreement Each month, beginning with the first month of the second year that a State sales tax filing documenting private, non -tax exempt sales is submitted to the Illinois Department of Revenue from the Plant location within the Village, the Operator shall submit to the Village: a) A copy of the filing submitted to the Illinois Department of Revenue indicating amount of sales tax due and owing the State for that month; and b) A check made payable to the Village in the amount equal to 1% of the total amount of sales for that month, according to the aforementioned State filing. c) A monthly payment in the amount as calculated in Section 7.2(b) shall continue every year for the life of this Agreement. Section 8. Dispute Resolution. The following dispute resolution procedures shall apply to this Agreement: 8.1 Meet and Confer. In the event that one of the Parties believes that another Party has committed a possible violation of this Agreement, it may request in writing that the Parties meet and confer in good faith for the purpose of attempting to reach a mutually satisfactory resolution of the problem within fifteen (15) days of the date of service of said request. 8.2. Notice of Disagreement. If the complaining Party is not satisfied with the result of the Meet and Confer process, the complaining Party may provide written notice to the other Parties identifying and describing any alleged violation of this Agreement ('Notice of Disagreement"), with particularity, if available, and setting forth the action required to remedy the alleged violation. 8.3 Response to Notice of Disagreement. Within five days of service of a Notice of Disagreement, the recipient Party shall provide a written response denying or admitting the allegations set forth in the Notice of Disagreement, and, if the truth of the allegations is admitted, setting forth in detail the steps it has taken and/or will take to cure the violations. Failure to serve a timely response shall entitle the complaining party to proceed directly to arbitration as provided below. 287130-1 8.4. Binding Arbitration Procedure. Subject to prior compliance with the Meet and Confer process and the Notice and Response process as described above, either Party has the right to initiate binding arbitration to resolve any dispute arising under this Agreement. The arbitration shall be conducted in accordance with the following procedures: The arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator shall be selected pursuant to such rules, provided that he/she must be a licensed attorney, knowledgeable in Illinois law. The parties and the arbitrator shall maintain strict confidentiality with respect to the arbitration. The arbitration shall be held in Cook County, Illinois, unless otherwise agreed to by the Parties in writing. The arbitrator shall be empowered to grant equitable and injunctive relief and specific performance of the terms and conditions of this Agreement. The arbitrator shall not have the power to award punitive damages. The provisions of applicable Illinois law are incorporated into and made part of this Agreement, provided that no discovery authorized by any Illinois law or court rule may be conducted without leave of the arbitrator, who shall decide to grant leave based on the need of the requesting party and the burden of such discovery in light of the nature and complexity of the dispute. No depositions shall be allowed without the mutual consent of both parties. The provisions of Rule 26 of the Federal Rules of Civil Procedure shall apply, as well as all limitations on discovery. Summary disposition of those disputes ripe for such treatment shall be encouraged. The terms of this Agreement shall be strictly construed in a manner consistent with the intent of the parties. If either party requests a hearing, the arbitrator shall set the matter forbearing. Otherwise, the arbitrator shall decide whether to set the matter for hearing. The resulting award shall be in writing and give the reasons for the decision. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The costs and expenses of the American Arbitration Association and the arbitrator shall be shared equally by and between the Parties unless the arbitrator rules otherwise. Section 9. Judicial Review. The Parties consent to an action for (a) declaratory and injunctive relief, or (b) enforcement of any award in arbitration pursuant to the provisions of Section 8.4, which actions shall be in the Circuit Court of Cook County, Illinois. Service of process in any such judicial proceeding is waived in favor of delivery of court documents by Certified Mail - Return Receipt Requested or nationally recognized overnight courier to the individuals or offices designated for Notices at Section 10 below. 287130-1 5 Section 10. Notices. Any notices, consents, demands, requests, approvals, and other communications to be given under this Agreement by any party to the other shall be deemed to have been duly given if given in writing and personally delivered, or sent by nationally recognized overnight courier, or sent by certified mail, postage prepaid with return receipt requested, at the following addresses: If to Pal Group, Inc.: Pal Group, Inc. 321 S. Center St. Hillside, IL 60162 Attn: Samuel S. Palumbo, Jr. With a copy to: Bill Dwyer O'Rourke, Hogan, Fowler & Dwyer 10 S. LaSalle St., Ste 2900 Chicago, IL 60603 If to Orange Crush, LLC. Donald J. Storino Storino, Ramello & Durkin 9501 West Devon Avenue, Suite 800 Rosemont, IL 60018 Orange Crush LLC. 321 S. Center St. Hillside, IL 60162 Attn: Samuel S. Palumbo, Jr. With a copy to: Bill Dwyer O'Rourke, Hogan, Fowler & Dwyer 10 S. LaSalle St., Ste 2900 Chicago, IL 60603 Donald J. Storino Storino, Ramello & Durkin 9501 West Devon Avenue, Suite 800 Rosemont, IL 60018 If to the Village: Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, IL 60007 Attn: Village Manager With a copy to: Village of Elk Grove Village 901 Wellington Avenue 287130-1 Elk Grove Village, IL 60007 Attn: George Knickerbocker Notices delivered personally, by courier or by certified mail, shall be deemed communicated as of actual receipt. Any party may change its address for notice hereunder by giving notice of such change in the manner provided in this Section. Section 11. Miscellaneous Provisions. 11.1. Effective Date and Term. This Agreement shall become effective upon its execution by the Parties hereto and shall continue for a period of ten (110) years provided that during that period of time business operations related to the Plant are conducted the Village site as contemplated herein, and further provided that, if the Operator ceases operations at the Plant, then this Agreement shall terminate, at the option of the Operator, thirty (30) days after written notice is provided to the Village. In the event operations at the Plant are terminated, the Village reserves the right to rescind the special use permit for the site via an ordinance passed by a vote of the Village's Board of Trustees. 11.2. Renewal. Prior to the termination of this Agreement, any Party may request the other Parties enter into good faith negotiations to extend the term of this Agreement or enter into a new Agreement. If the Parties have neither agreed to extend the term of this Agreement nor entered into a new Agreement prior to the termination of this Agreement, this Agreement will automatically be extended for one additional t`e10) year term. 11.3. Assignment. This Agreement may not be assigned by any Party without the express written consent of each of the other Parties, which consent may be withheld in the sole discretion of any Party, unless the assignment is made to another entity having one or more shareholders or owners in common with either the Developer or the Operator. 11.4. Termination. Notwithstanding anything to the contrary set forth herein, this Agreement shall terminate in the event the Operator permanently ceases to operate the Plant or if the use of the site is changed. 11.5. Additional Plants. 287130-1 7 No other asphaltic concrete plant or asphalUconcrete recycling facility shall operate within the Village without first entering into a municipal services agreement with the Village containing terms substantially equal to the terms contained within this Agreement. Such terms include but are not limited to a payment from the other plant's operator to the Village which, at a minimum, is at the same rate and conditions as provided for the subject Plant as outlined in Section 7, above. Nothing in this Agreement shall prevent the Village from entering into a municipal services agreement with another plant that requires a payment of more than that amount. 11.6 Interpretation. The general rule of contract construction that any ambiguity in a contract will be construed against the party drafting such contract shall not apply to this Agreement. Instead, this Agreement shall be interpreted as if drafted jointly by the Parties. 11.7. Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of the Agreement, such provision shall be fully severable; and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance therefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement, a provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 11.8. Force Majeure. Notwithstanding any other provision of this Agreement, neither Party shall be liable or held responsible for any failure to perform or for delays in performing its obligations under this Agreement which results from circumstances or causes beyond its reasonable control, including without limitation, fire or casualty, acts of God, strikes or labor disputes, war or violence, order or requirement of any government agency or authority. 11.9. Good Faith and Fair Dealing. The Parties to this Agreement agree that this Agreement imposes on them a duty of good faith and fair dealing. 11.10. Amendment or Modifications. This Agreement may not be modified or amended except by a writing of equal formality signed by all of the Parties. 11.11. Governing Law. 287130-1 This Agreement shall be governed as to performance and interpretation in accordance with the laws of the State of Illinois. 11.12. Complete Agreement. This Agreement represents the entire integrated agreement between the Parties and supersedes all past agreements and all negotiations, representations, promises or agreements, either written or oral, made during the course of negotiations leading to this Agreement. 11.13. No Third Party Beneficiaries This Agreement does not create, and shall not be construed as creating, any right enforceable by any person not a party to this Agreement. Any covenant or agreement contained in this Agreement shall be only for the benefit of the signatories hereto and their respective successors. 11.14. Headings. The headings of the paragraphs contained in this Agreement are included herein for reference purposes only, solely for the convenience of the parties hereto, and shall not in any way be deemed to affect the meaning, interpretation or applicability of this Agreement or any term, condition or provision hereof. 11.15. No Waiver. The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance with every term and condition of the Agreement. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.] 287130-1 9 11.16. Counterparts. This Agreement may not be executed in counterparts but is effective only as of signature by the Parties. IN WITNESS HEREOF, the Village, the Developer and the Operator have respectfully signed this Agreement and caused their seals to be affixed and attested as of the date above written. Village of Elk Grove Village By: Craig B. Johnson, Mayor Craig B. Johnson, Mayor Attest: By: Judith M. Keegan, Village Clerk Judith M. Keegan, Village Clerk Pal Group, Inc. MA Samuel S. Palumbo, Jr. Attest: By: Orange Crush LLC By: Samuel S. Palumbo, Jr. Attest: By: 287130-1 10