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HomeMy WebLinkAbout01-280 Resolution No. 01-280 RESOLUTION AUTHORIZING EXECUTION OF A SECOND ADDENDUM TO MINING AGREEMENT WITH PRAIRIE MATERIAL SALES, INC . BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Ed Schock, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a Second Addendum to Mining Agreement on behalf of the City of Elgin with Prairie Material Sales, Inc. for gravel extraction on the sports complex property, a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: October 24 , 2001 Adopted: October 24 , 2001 Omnibus Vote : Yeas : 5 Nays : 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk SECOND ADDENDUM TO MINING AGREEMENT THIS SECOND ADDENDUM TO MINING AGREEMENT("Second Addendum") dated as of this 10th day of October, 2001 by and between the City of Elgin, Illinois("City"), an Illinois municipal corporation and Prairie Material Sales, Inc., an Illinois corporation, as successor in interest to Giertz-Melahn Asphalt Company and Road Materials Corporation("Prairie"). RECITALS A. The City and Prairie are parties to a certain Gravel Extraction/Rehabilitation Agreement approved by Resolution of the Elgin City Council on October 28, 1985, as amended by a certain Addendum thereto dated April 13, 1994 (collectively the "Original Mining Agreement"). The terms and provisions of the Original Mining Agreement are hereby incorporated herein by reference. Any capitalized terms used but not otherwise defined herein shall have the meanings as set forth in the Original Mining Agreement. B. The Addendum to the Original Mining Agreement(in paragraph 3 thereof) prescribed that the sequence and phasing of the contemplated limestone extraction and other mining activities would proceed in accordance with the reclamation plans prepared by Burnidge, Cassell and Associates (the"Burnidge Mining and Reclamation Plans"). C. The City and Prairie now wish to modify and amend the Original Mining Agreement (and the Burnidge Mining and Reclamation Plans), and to settle and resolve between them certain disputes and disagreements, in the manner set forth below. D. Reference is hereby made to that certain Patrick Engineering Mining Plan bearing final revision date of September 6, 2001 (the "Patrick Engineering Mining Plan") as prepared by Patrick Engineering, Inc. of Lisle, Illinois("Patrick Engineering"). A copy of said Patrick Engineering Mining Plan is attached hereto as Exhibit A. E. Any capitalized terms used but not otherwise defined herein shall have the meanings as set forth in the Original Mining Agreement and/or on the Patrick Engineering Mining Plan. I. Mining Area and Mining Activities 1.1 Current Mining Area. Prairie is currently conducting Mining Activities in the area on the Patrick Engineering Mining Plan labeled as "Current Mining Area", and overburden has been partially stripped in such area. 1.2 Relocation of Mining Activities. But for the modifications to the Original Mining Agreement hereby made, the stripping of overburden and the W:\WORK\28500\Memorandum of Agreement with City-v9.doc excavation, blasting, crushing and processing of limestone and other subsurface aggregate materials or minerals ("Mining Activities")would have continued beyond the Current Mining Area into the area labeled as " Unmined North Area" on the Patrick Engineering Mining Plan. By agreement: (a) Mining Activities shall not be extended into the area labeled as "Unmined North Area" on the Patrick Engineering Mining Plan; and (b) in lieu of mining in the"Unmined North Area" Prairie shall have the right to conduct Mining Activities in the area labeled as"Replacement South Mine Area" on the Patrick Engineering Mining Plan. 1.3 Relocation of Compost Piles. The City shall, at its expense, as soon as possible but in any event not later than October 10,2001, complete the relocation of the compost piles currently situated in the"Replacement South Mine Area" to another location which will not interfere with Prairie's mining, reclamation or sales activities. 1.4 Sequence of Mining Activities. The sequence of Mining Activities shall be as follows: (a) Prairie shall first finish mining in the Current Mining Area(except that portion marked "Final Mining")to the perimeter limits as shown on the Patrick Engineering Mining Plan(or to such lesser limits as Prairie may elect). (b) Prairie shall then shift to conduct Mining Activities in the Replacement South Mine Area. It is agreed and understood that: (i) Prairie shall have the right to mine such portion or all of the Replacement South Mine Area as Prairie may elect, but Prairie shall not expand the perimeter of the rim of the Replacement South Mine Area beyond that shown on the Patrick Engineering Mining Plan; (ii) Prairie shall not excavate the floor of the Replacement South Mine Area lower than the depth(being an average elevation 645 mean sea level, plus or minus 1 foot) as shown on the Patrick Engineering Mining Plan; (iii) Prairie shall not reduce(i.e., make more vertical)the slopes of the banks(side walls)within the Replacement South Mine Area beyond the limits shown in the Patrick Engineering Mining Plan, plus or minus 1 foot. W:\WORK\28500\Memorandum of Agreement with City-v9.doc 2 (c) Upon completion of Mining Activities in the Replacement South Mine Area, Prairie shall then complete the mining of the Final Mining Area. 1.5 Blasting Controls. Prairie shall confine its blasting activities to between the weekday hours of 10 AM and noon, Monday through Friday, using a multiple or rapid fire technique. All blasting shall be done in accordance with all applicable requirements of law, including, without limitation, the requirements of the Illinois Department of Natural Resources and vibration limiting criteria specified by the FAA in their letters dated October 1, 1991 and February 20, 1992. The City agrees that no blasting ordinances which it may enact after the date hereof and which are more restrictive than the current requirements of law shall be applicable to the conduct of Mining Activities by Prairie hereunder. 1.6 Replacement of Old Plans. It is hereby agreed that the Burnidge Mining and Reclamation Plans are hereby superceded and replaced by the Patrick Engineering Mining Plan. 1.7 Cessation of Mining Activities. Notwithstanding anything to the contrary, Prairie shall cease Mining Activities (including blasting, excavation, extraction, crushing and processing activities) not later than the first to arrive of(a) December 31, 2003 or(b)on such earlier date as Prairie may elect(whichever date applies being hereinafter called the"Mining Cessation Date"). Prairie may, however, continue its Reclamation and Sales Activities(as hereafter defined) after the Mining Cessation Date and until the Reclamation Completion Date set forth in paragraph 2.5 below. II. Reclamation and Sales Activities 2.1 Reclamation of Phase I Area. (a) On or before December 31, 2002, Prairie shall complete the reclamation of the area labeled as "Phase I Reclamation" on the Patrick Engineering Mining Plan(to the line labeled"Phase I Reclamation Boundary" on the Patrick Engineering Mining Plan). The required reclamation of Phase I shall be composed of and limited to(i)grading the Phase I area to the grades shown on the Patrick Engineering Mining Plan, plus or minus one foot(such grading to within plus or minus 1 foot of the grades shown on the Patrick Engineering Mining Plan being hereinafter called "Rough Grading") followed by(ii) revegetation of those portions of the Phase I area lying above the"Edge of Water" elevation as shown on the Patrick Engineering Mining Plan (the"Above-Water Phase I Area"). Prairie shall revegetate the Above-Water Phase I Area promptly upon completion of the grading of said Above-Water Phase I Area(weather permitting)using the following seed mixture: W:\WORK\28500\Memorandum of Agreement with City-v9.doc 3 Class 2 Roadside mixture; Alta fescue; perennial ryegrass; creeping red fescue; oats; applied in the manner and weights specified in article 842.07 "Seeding Mixtures, Standard Specifications For Road and Bridge Construction" as published by the Illinois Department of Transportation on July 1, 1988 Such reclamation of the Phase I area shall occur as contemporaneously as practicable with the Mining Activities. (The reclamation and revegetation work required of Prairie as to Phase I shall hereinafter be called the"Phase I Reclamation Work") It is expressly understood and agreed that(x)no topsoil is to be spread by Prairie anywhere within Phase I and that, as such (y)the City shall accept (without claim against Prairie)whatever germination occurs with respect to the seed planted by Prairie in this Rough Graded Phase I area. (b) Prairie shall notify the City when Prairie completes the Phase I Reclamation Work as required herein. The City shall promptly inspect said work and if it finds such work to be in compliance with the requirements hereof, the City shall promptly accept same by written notice to Prairie. If the City contends that such Phase I Reclamation Work is not in compliance with the requirements hereof, it shall notify Prairie of the alleged defect("Reclamation Defect"), stating the nature thereof with specificity. Prairie shall then promptly correct any legitimate Reclamation Defect. (c) Following the City's acceptance of the Phase I Reclamation Work(i)the said Phase I area shall no longer be deemed to be a part of the mining site, (ii) possession and control thereof shall be transferred to the City, (iii) Prairie shall have no further obligations to maintain or otherwise deal with said Phase I area, and(iv)Prairie shall have no further right to use or occupy the Phase I area. (d) No planting or other revegetation shall be required of Prairie on any other portion of the site outside of the Phase I area. No topsoil spreading shall be required of Prairie from and after the date hereof anywhere within the original mining site or elsewhere on the Elgin Sports Complex property. 2.2 Reclamation of Phase II Area. (a) Subject to the succeeding provisions of this paragraph 2.2, Prairie shall complete the reclamation of the area labeled "Phase II Reclamation" on the Patrick Engineering Mining Plan to the grades shown thereon, plus or minus one(1) foot(such grading to within plus or minus one foot of the grades shown on the Patrick Engineering Mining Plan being hereinafter called "Rough Grading", and such Rough Grading with respect to the Phase II area being hereinafter called the"Phase II Reclamation Work") W:\WORK\28500\Memorandum of Agreement with City-v9.doc 4 on or before the first to arrive of(i) the second anniversary of the Mining Cessation Date or(ii)December 31, 2005 (with the applicable date being hereinafter called the"Reclamation Completion Date"). It is understood that the southerly boundary of the Phase II Reclamation area begins at the 760 elevation line on the Patrick Engineering Mining Plan. (b) The obligations of Prairie to complete the Phase II Reclamation Work shall be subject to and limited by the availability to Prairie of sufficient quantities of fill material from either or both of the following sources, namely (A) from"dump customers" seeking to bring imported fill into the quarry("Imported Material") or(B) from overburden first stripped and excavated by Prairie from other portions of the site as part of the scheduled Mining Activities detailed in paragraph 1.4 above ("Excavated Overburden"). [It is expressly agreed and understood that Prairie shall not be required to use in connection with the Phase II Reclamation Work overburden or fill material other than(i) Excavated Overburden or(ii) Imported Material; provided, however, that it is also agreed and understood that excess overburden previously placed along the edge or perimeter of the Phase II area(excluding Mount Elgin)shall be considered as"Excavated Overburden" and used as part of the of the Phase II Reclamation Work. It is especially agreed, without limiting the generality of the foregoing, that Prairie shall not be required to use any stockpiled material composing a part of Mount Elgin(hereafter defined) in the performance of such Phase II Reclamation Work. (c) Prairie's obligation to complete the Phase II Reclamation Work shall also be subject to the limitation that (i) if, notwithstanding Prairie's reasonable diligence the Phase II Reclamation Work is not fully completed by the Reclamation Completion Date and(ii) if the City is not willing to extend such Reclamation Completion Date in order to allow Prairie sufficient time to obtain adequate quantities of additional Import Material with which to achieve such completion(as more fully described in paragraph 2.2(d)below), then Prairie shall be relieved (without penalty or claim on the part of the City) of the obligation to complete the Phase II Reclamation Work beyond the point to which such work has been completed as of the Reclamation Completion Date. (d) In connection with the Phase H Reclamation Work, Prairie shall (i) first apply available Imported Material and Excavated Overburden to the reclamation of the perimeter of the Phase II area(but only to the extent that such application does not interfere with Prairie's equipment or mining operations located in the Phase II area or with the progress of mining operations in the Replacement South Mine Area) and(ii) next apply any available Imported Material and Excavated Material to the reclamation of the center or floor area of the Phase II area. W:\WORK\285001Memorandum of Agreement with City-v9.doc 5 At the end of the Imported Fill Period(as defined in paragraph 2.3(b) below)Prairie and the City shall cooperate in good faith in order to jointly determine whether it is likely that, by the Reclamation Completion Date, there will be available to Prairie adequate quantities of Imported Material and Excavated Overburden with which to perform the Phase H Reclamation Work in its entirety. If it is determined that a shortfall of adequate supplies of Imported Material and Excavated Overburden for such purpose is likely(hereinafter called a"Phase H Reclamation Material Shortfall"), then: (i) The City may, at its election, direct Prairie to continue with the reclamation of the Phase II area for an additional period of time(not to exceed 12 consecutive months)beyond the Reclamation Completion Date(the end of which shall hereafter be called the"Extended Reclamation Date") in order to fully or partially complete the reclamation of the Phase II area as provided in paragraph 2.2(a) above. In such event Prairie shall (A)use all reasonable efforts to accelerate the receipt of additional Imported Materials, including reasonably reducing its charge to "dump customers" for Imported Material, and(B) otherwise use reasonable diligence to complete the Phase H Reclamation Work as soon as reasonably possible (but Prairie shall not be required to incur overtime costs or extra equipment costs or otherwise employ so-called "heroic measures" in such work). (ii) In the event of a Phase II Reclamation Material Shortfall it is understood that the ultimate or final depth of the center or floor area of the Phase II area may exceed the depth shown on the Patrick Engineering Mining Plan. In such event, the City may, at its election(1) direct Prairie to proceed for an additional period of time to complete the Phase II Reclamation Work as provided in paragraph 2(d)(i) above and/or(2)provide Prairie with an amended reclamation plan for the Phase II area wherein the only change is that the center or floor is shown to be deeper. In the event the City provides to Prairie such an amended reclamation plan for the Phase II area, Prairie shall complete the reclamation of such Phase II area to the grades shown therein plus or minus 1 foot. Notwithstanding anything to the contrary stated herein, Prairie shall have no obligation to perform Phase II Reclamation beyond the availability of the quantities of Imported Materials or Excavated Overburden which are available to Prairie prior to the W:IWORK\28500\Memorandum of Agreement with City-v9.doc 6 Reclamation Completion Date or, if applicable, the Extended Reclamation Date . 2.3 Reclamation of Replacement South Mine Area. The goal and desired reclamation of the Replacement South Mine Area is to have such area filled and reclaimed as follows: (a) The desired final (post-reclamation) surface elevation of the Replacement South Mine Area shall be the 760 elevation as shown on the Patrick Engineering Mining Plan. The reclamation of the Replacement South Mine Area shall occur as contemporaneously as practicable with the Mining Activities. Prairie shall complete the reclamation of the Replacement South Mine Area to the grade of 760 as shown on the Patrick Engineering Mining Plan, plus or minus one foot, on or before the Reclamation Completion Date. (b) The period commencing with the Mining Cessation Date and ending at the earlier to arrive of(i)December 31, 2004 or(ii)the 366th day following the Mining Cessation Date shall hereinafter be called the"Imported Fill Period". Imported Material will be accepted for dumping into the Replacement South Mine Area when and as Mining Activities permit, but in any event during the Imported Fill Period. Notwithstanding the foregoing, Prairie shall not,without the prior consent of the City, permit to be deposited into the Replacement South Mine Area such quantities of Imported Material so as to reduce the remaining unreclaimed volume of such Replacement South Mine Area to less than 150,000 cubic yards or such greater or lesser volume as the City my specify to Prairie in writing on or before December 31, 2001 (the"Reserved Volume"), it being the intention of the parties that a place shall be reserved in the Replacement South Mine Area for the deposit of not less than the Reserved Volume to be taken from Mount Elgin and moved into the said Replacement South Mine Area. (c) At the conclusion of the Imported Fill Period the City shall submit to Prairie a certified calculation prepared by a qualified engineering firm selected by the City(the"Mount Elgin Volume Certification") setting forth the amount of additional fill material (stated in cubic yards) required to be removed from the land form labeled"Mount Elgin" on the Patrick Engineering Mining Plan and deposited into the Replacement South Mine Area in order to fill same to the required grade without the use of any special compaction technique (such certified volume being hereinafter called the "Final Reclamation Volume"). W:\WORK\28500\Memorandum of Agreement with City-v9.doc 7 (d) Within 30 days following Prairie's receipt of(i)the Mount Elgin Volume Certification and(ii)the City's approval of the proposed Original Bidders (hereafter defined), Prairie shall obtain and provide to the City bids ("Original Bids") from not less than 3 reputable subcontractors("Original Bidders")which are selected by Prairie and approved by the City(which approval shall not be unreasonably withheld, conditioned or delayed) as to the cost to move the Final Reclamation Volume. The Original Bids shall be submitted by said Original Bidders to Prairie. (Prairie shall have no liability or obligation to the City if any of the designated Original Bidders refuses or fails to submit bids in a timely or conforming manner.) The City reserves the right to reject the Original Bids within 14 days after delivery thereof to the City if the City, in its reasonable judgment, determines that the lowest of such Original Bids is excessive. If the City does reject the Original Bids then Prairie shall, within 10 business days, provide to the City for its approval (which approval shall not be unreasonably withheld, conditioned or delayed)the names of not more than 3 additional contractors ("Second Bidders") from whom bids (hereinafter be called the "Second Bids") shall be obtained for moving the Final Reclamation Volume. Once the Second Bidders are approved by the City, Prairie shall seek bids from said Second Bidders and promptly deliver same to the City upon receipt by Prairie. (Prairie shall have no liability or obligation to the City if any of the designated Second Bidders refuses or fails to submit bids in a timely or conforming manner.) The lowest of the group of bids composed of the Original Bids and the Second Bids(if any) shall hereinafter be called the"Low Bid" and the contractor submitting same shall hereinafter be called the "Low Bidder". (e) On or before the Reclamation Completion Date Prairie, acting personally or through subcontractual arrangement with the Low Bidder, shall cause the required Final Reclamation Volume to be taken from the existing stockpile labeled as "Mount Elgin" on the Patrick Engineering Mining Plan and pushed (through the use of bulldozers, but without the use of trucks unless Prairie, in its sole discretion, elects to use such trucks)into the Replacement South Mine Area; provided, however, that to the extent the amount of available fill material within Mount Elgin, coupled with any Imported Material, is insufficient to satisfy the Final Reclamation W:\WORK\28500\Memorandum of Agreement with City-v9.doc 8 Volume needed, then Prairie shall be relieved of the reclamation obligation to the extent of such shortfall. Not more frequently than monthly Prairie shall make application to the City("Payment Application") for payment with respect to the portion of the Final Reclamation Volume deposited by Prairie(or its subcontractor)into the Replacement South Mine area. Along with each such Payment Application Prairie shall certify such volume to the City. The City shall pay to Prairie, not more frequently than monthly, seventy five percent(75%)of the product of(i)the Low Bid (on a per cubic yard basis)multiplied by(ii) each cubic yard of the Final Reclamation Volume (or any amount in excess thereof) moved by Prairie or its subcontractor from Mount Elgin and pushed into the Replacement South Mine Area, it being understood that Prairie shall pay the remaining 25% (or absorb such 25% if Prairie, itself, elects to do such reclamation work). Following the filling of the Replacement South Mine Area to the grade hereby required, Prairie shall(i) cause the remainder(if any) of Mount Elgin to be shaped so as to(A) minimize the ponding of water on Mount Elgin, and (B) cause Mount Elgin to drain primarily away from the so-called Elgin Mental Health Center Property and (ii) install a silt fence around the remainder of Mount Elgin. (f) The City and Prairie agree that the use of some or all of Mount Elgin in the manner contemplated by this paragraph 2.3 (or the decision by the City to not use any of Mount Elgin for the reclamation of the Replacement South Mine Area, if such is the case) shall constitute full and complete resolution and satisfaction of the obligations of Prairie to the City with respect to Mount Elgin (including any portions of Mount Elgin which may remain in place following the completion of the reclamation of the Replacement South Mine Area). 2.4 Continuance of Reclamation and Sales Activities. Prairie shall have the right to continue the aforesaid reclamation activities as well to engage in the sale of its stock piles of produced aggregate(the"Reclamation and Sales Activities") following the Mining Cessation Date but not beyond the later of Reclamation Completion Date or, if applicable, the Extended Reclamation Date. 2.5 Discontinuance of Reclamation and Sales Activities: Vacation of Site. W:\WORK\28500\Memorandum of Agreement with City-v9.doc 9 (a) Prairie shall complete all required reclamation activities on or before the Reclamation Completion Date(subject to the provisions of paragraphs 2.2 and 2.3 above). (b) On or before the Reclamation Completion Date or the Extended Reclamation Date (as the case may be)Prairie shall discontinue all sales activities and all other activities on the site and on City property and shall within 60 days thereafter remove all of its machinery and equipment from the site and from City property (except as otherwise specifically provided herein), and shall otherwise vacate the site and the City property. It is further understood and agreed that as of the Reclamation Completion Date or the Extended Reclamation Completion Date (if applicable) and upon the completion of such equipment removal, Prairie shall have no further right to use or occupy the site and/or any other City property, including without limitation, the City owned property commonly known as the City of Elgin Sports Complex property (except under the terms of such other future written agreements, if any, as may then exist between the City and Prairie). 2.6 Acceptance of Prior Reclamation: Definition of Future Reclamation Obligations. From and after the date hereof, the remaining reclamation obligations of Prairie shall be only those that are expressly set forth and described in this Second Addendum and on the Patrick Engineering Mining Plan. 2.7 Compaction Requirements. Prairie shall be required to compact the reclamation work within Phase I, Phase H, and the Replacement South Mine Area using tracked equipment only to the extent reasonably required to minimize instability and hazard to the public heath and safety; provided, however, that no specific level of compaction density shall be required beyond that naturally achieved with the operation of the aforesaid equipment in the normal course of the Mining Activities, whether in the aforesaid areas or in any other place that reclamation may be required hereunder. 2.8 Planting and Revegetation. Prairie shall not be required to plant any grass cover or other vegetation anywhere on the site except in the Phase I Reclamation Area as required in paragraph 2.1(a) above. Additionally, after an area has been Rough Graded(i.e., graded to within plus or minus one foot of the grades shown in the Patrick Engineering Mining Plan)Prairie shall notify the City and the City shall promptly inspect said work. If the City finds such work to be in compliance with the requirements hereof, the City shall promptly and without unreasonable condition or delay accept same by written notice to Prairie. If the City contends that such reclamation work is not in compliance with the requirements hereof, it shall notify Prairie of the alleged defect ("Reclamation Defect"), stating the nature thereof with specificity. Prairie shall promptly correct any legitimate Reclamation Defect. Following the City's acceptance of an area of reclamation work(i)the said area shall no longer be deemed to be a part of the mining site, (ii)possession and control thereof shall be transferred to the City, (iii)Prairie shall W:\WORK\28500\Memorandum of Agreement with City-v9.doc 10 have no further obligations to maintain or otherwise deal with said area, and(iv) Prairie shall have no further right to use or occupy the said accepted area. 2.9 In-Kind Services. Except for the obligations of Prairie as set forth in this Second Addendum, Prairie shall not be required to provide to the City any further"in- kind" services as described in paragraphs 15 and 16 of the Addendum to the Original Mining Agreement. Further,the City hereby accepts the previous in-kind services provided by Prairie including,without limitation, services pertaining to the construction of soccer, softball and other currently existing recreational areas within the Elgin Sports Complex. III. Miscellaneous 3.1 Further Amendments to Original Mining Agreement. The Original Mining Agreement is hereby further amended as follows: (a) The drawings, plans and specifications set forth in Section II, paragraphs A2(a) and B1 of the Original Agreement and in paragraph 3 of the Addendum thereto are, from this date forward, replaced in their entirety by the Patrick Engineering Mining Plan. (b) All portions of the site to be reclaimed by Prairie shall be Rough Graded only(i.e., graded to within plus or minus one foot of the grades shown on the Patrick Engineering Mining Plan) and no further grading or topsoil spreading shall be required. (c) Prairie shall not be required to enclose its conveyors. (d) The Northern Illinois Gas Line referred to in paragraph 18 of the Addendum has been abandoned in place and the City hereby accepts same as satisfying Prairie's obligations with respect thereto. 3.2 Drainage System. Prairie has installed a drainage system as shown on the Patrick Engineering Mining Plan (the "Prairie Drainage System"). it is hereby agreed that: (a) The location of the Prairie Drainage System is hereby accepted and agreed to by both parties, and the City shall have the right, at no cost to the City, to withdraw water from the North sedimentation pond for the purpose of providing irrigation water within the proposed golf course. (b) The City shall, at its expense, cause to be installed along the west side of the Prairie Drainage System a silt fence and shall take any W:\WORK\28500\Memorandum of Agreement with City-v9.doc 11 and all steps necessary or appropriate to maintain such silt fence and keep sediment erosion coming from the west of the Prairie Drainage System from filing such drainage system. (c) Prairie shall at its expense install a silt fence along the east side of the Prairie Drainage System and shall, at its expense, take any and all action necessary to keep sediment erosion coming from the east of the Prairie Drainage System from filing such drainage system 3.3 Existing Topsoil Stockpiles. The existing stockpile of topsoil on the site labeled as Existing Topsoil Stockpile on the Patrick Engineering Mining Plan(and hereinafter called the "Existing Topsoil Stockpile") shall, from and after the date hereof, be left in place and unused by Prairie. The City shall be responsible for at all times installing and maintaining erosion control with respect to such Existing Topsoil Stockpile. Upon the execution of this Second Addendum said Existing Topsoil Stockpile shall become the property of the City without any obligation on the part of Prairie to maintain, relocate or spread same. 3.4 Future Topsoil Stockpile. The City has designated an area labeled "Future Topsoil Area" on the Patrick Engineering Mining Plan as the place onto which all further stockpiling of topsoil shall occur. It is agreed and understood that there shall be placed by Prairie into this Future Topsoil Area only topsoil stripped by Prairie or its subcontractors from the Replacement South Mine Area or other parts of the site: in no event shall imported topsoil be deposited into the Future Topsoil Area. Prairie shall not make use of any of this topsoil. Additionally, until the Reclamation Completion Date or the Extended Reclamation Completion Date(as the case may be)Prairie shall be responsible for at all times installing and maintaining erosion control with respect to such Future Topsoil Area. All topsoil within the Future Topsoil Area shall be the property of the City, and shall be turned over to the City as of the Reclamation Completion Date or the Extended Reclamation Completion Date(as the case may be) without any obligation on the part of Prairie to relocate or spread same. • 3.5 Removal of Fence Surrounding Compost Pile. As soon as possible, but in any event not later than 48 hours after the City receives a closure permit for the compost site from the Illinois Environmental Protection Agency, the City shall at its expense remove the existing fence which surrounds the compost pile. 3.6 Barrier Fence. Prairie shall install a new fence(composed of posts and wire) along the line indicated on the Patrick Engineering Mining Plan and labeled as "Barrier Fence". Upon Prairie vacating the premises, Prairie shall have the right to take with it such portions of said Barrier Fence as Prairie so desires. Any portion of the Barrier Fence left behind by Prairie shall become the property of the City without back charge, cost or expense to Prairie. W:IWORK\28500\Memorandum of Agreement with City-v9.doc 12 3.7 Shared Use of Existing Well. (a) Prairie has caused to be installed on the site a well ("Existing Well") at the location shown on the Patrick Engineering Mining Plan. Prairie uses the water produced by the Exiting Well to control dust created by its mining operations, and in that regard applies such water to its roads and other equipment movement areas, crushing and conveying equipment, and material discharge points (such water use being hereinafter called the "Dust Control Use"). (b) The City shall have the right to make joint use with Prairie of the Existing Well under the following terms and conditions: (i) The City may use the Existing Well (modified as specified below) only for the purpose of irrigating the golf course being constructed by the City west of the mining site but east of McLean Boulevard. (ii) Before commencing any use of the Existing Well the City shall, at its sole cost and expense, and without right of reimbursement from Prairie, make the following improvements to the Existing Well: A. Install to a lower depth(as determined by the well contractor) a new submersible pump having a capacity of not less than 400 gallons per minute; B. Install separate electrical power(metered to the City) so that, when Prairie shuts off its power to the Existing Well at the close of its work day, the City will use its own electric service to power the Existing Well. (iii) The City shall use the Existing Well only at hours of the day during which Prairie is not conducting its Mining Activities or reclamation activities. (iv) In the event that the City's use of the Existing Well results in there being insufficient water to fully satisfy Prairie's Dust Control Use, then upon notice thereof by Prairie to the City, the City shall diminish or discontinue its use of the Existing Well to the extent required to enable the Existing Well to become sufficiently recharged to fulfill Prairie's Dust Control Use. (v) All costs associated with the maintenance, repair or replacement of the Existing Well shall be shared equally by the City and Prairie; excluding, however, those costs associated with installing the W:\WORK\28500\Memorandum of Agreement with City-v9.doc 13 enhancements described in subparagraph 3.7(b)(ii) above(which shall be done at the sole cost of the City). (c) Upon Prairie vacating the site,Prairie shall convey ownership of and turn over to the City the ownership of the Existing Well. Thereafter, Prairie shall have no further rights or responsibility with respect to said Existing Well. 3.8 Additional Understandings. It is acknowledged, agreed and understood that: (a) Trucks entering or exiting the site in connection with Prairie's Mining Activities shall do so only from the access point on Route 31; provided, however, that Prairie shall not be deemed to be in violation of the foregoing if access is obtained via the private road currently owned and utilized by Central Blacktop during such time as said private access point is otherwise open for use. (b) The City shall not require that any of Prairie's conveyor's or any trucks be covered. Instead, dust control measures shall be as required of Prairie by the Illinois Environmental Protection Agency. (c) Prairie shall comply with all applicable state and federal laws("Applicable Laws") pertaining to the conduct of Mining Activities and to matters associated with(i)water discharge, (ii) dust control and (iii)blasting. Prairie shall not be required by the City to perform beyond the requirements of Applicable Laws in connection with the conduct of its Mining Activities. 3.9 Ratification. Except as modified or amended hereby, the Original Mining Agreement shall remain unmodified and in full force and effect. In the event of any inconsistency or disagreement between the provisions hereof and the provisions in the Original Mining Agreement, the provisions of this Second Addendum shall be controlling. 3.10 Representation as to No Known Defaults. The City, on the one hand, and Prairie, on the other hand, hereby represents to the other that it is not currently aware of any act or omission of the other party which does or might constitute a breach or default of such other party under the Original Mining Agreement as hereby amended. Notwithstanding the foregoing, the City and Prairie are aware of a possible dispute between them concerning stormwater and drainage related violations alleged by the Illinois Environmental Protection Agency. 3.11 Patrick Engineering Fees and Costs. It is understood and agreed that(i) Patrick Engineering is the City's consulting engineer and (ii)Prairie shall not have any liability or responsibility for(and the City shall indemnify and hold Prairie harmless with W:\WORK\28500\Memorandum of Agreement with City-v9.doc 14 respect to) the fees and charges of said Patrick Engineering for consulting services rendered in connection with the mining and reclamation activities, or other matters on the so-called Elgin Sports Complex Site. Prairie agrees that it shall not contract with Patrick Engineering with respect to any matter pertaining to the mining site. The City shall have no obligation to pay or indemnify Prairie from any fees or charges of Patrick Engineering arising out of any agreement that Prairie and Patrick Engineering may enter into for matters not pertaining to the mining site. 3.12 Joint Work Product. This Second Addendum is and shall be deemed and construed to be the joint and collective work product of Prairie and the City and, as such, this Second Addendum shall not be construed against either party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 3.13 Authority. Each party represents that it has been duly authorized by all appropriate corporate action to execute and enter into this Second Addendum. 3.14 Index of Defined Terms. For convenience only, following is a list of the various defined terms used in this Second Addendum and the place at which such term is defined. (The following list is for convenience only, and any inaccuracy or omission shall not in any way affect or impair the substance or meaning of this Second Addendum.) Defined Term Location of Definition Above-Water Phase I ¶2.1(a) Applicable Laws ¶3.8(c) Burnidge Mining Reclamation Plans Recital B Current Mining Area ¶1.1 Dust Control Use ¶3.7(a) Existing Topsoil Stock piles ¶3.3 Existing Well ¶3.7 Extended Reclamation Date ¶2.2(d) Future Topsoil Area ¶3.4 Imported Fill ¶2.3(b) Imported Fill Period ¶2.3(b) Imported Material ¶2.2(b) Low Bid ¶2.3(d) Mining Activities ¶1.2 Mining Cessation and Date 111.7 Mount Elgin Volume Certification ¶2.3(c) Mount Elgin ¶2.3(c) Original Bidders ¶2.3(d) Original Bids ¶2.3(d) Original Mining Agreement Recital A Patrick Engineering Mining Plan Recital D W:\WORK\28500\Memorandum of Agreement with City-v9.doc 15 Payment Application ¶2.3(e) Phase I Reclamation Work ¶2.1(a) Phase II Reclamation Shortfall ¶2.2(d) Phase II Reclamation Work ¶2.2(a) Reclamation and Sales Activities ¶2.4 Reclamation Completion Date ¶2.2(a) Reclamation Defect ¶2.1(b) and¶2.8 Replacement South Mine Area ¶1.2(b) Rough Grading ¶2.1(a) Second Bidders ¶2.3(d) Second Bids ¶2.3(d) Unmined North Area ¶1.2 IN WITNESS WHEREOF, the parties hereto have executed this Second Addendum as of the date following their respective signatures. The City of Elgin, Illinois Prairie Material Sales, Inc. or By: --:` . _ By. 014A 0/119ANyv_—/ Ed Schock, Mayor Alan Oremus, President Dated: October 31, 2001 Attest: . Delona Mecum, City Clerk Dated: October 3j, 2001 W:\WORK\28500\Memorandum of Agreement with City-v9.doc 16 Exhibit A Patrick Engineering Mining Plan W:\WORK\28500\Memorandum of Agreement with City-v9.doc 17 • 'G �tig City of Elgin Agenda Item No. /V! G4. Lf October 10, 2001 G TO: Mayor and Members of the City Council N RECREATIONAL LEISURE FROM: Joyce A. Parker, City Manager ANUG FOR T (TIES FOR ALL CITIZENS SUBJECT: Proposed Second Addendum to the Mining Agreement Between the City of Elgin and Prairie Material Sales, Inc . PURPOSE To present to the Mayor and members of the City Council a proposed Second Addendum to the Mining Agreement Between the City and Prairie Material Sales, Inc . BACKGROUND The City, Giertz-Melahn Asphalt Company and Road Materials Corporation entered into a mining contract on October 28, 1995, providing for Road Materials Corporation to conduct gravel extraction on the City-owned sports complex property. The term of this original contract was for seventeen years beginning January 1, 1986 and ending December 31, 2002 . The City and Road Materials Corporation entered into an addendum to the original mining contract on April 13, 1994 . Such addendum amended the original mining agreement and provided for limestone extraction on the same City-owned property. The mining activities currently in progress on the City-owned sports complex property are taking place pursuant to this addendum agreement relating to limestone extraction. The addendum agreement for limestone extraction provides that the operator' s right to conduct limestone mining operations would commence as of April 13 , 1994 and shall expire on May 31, 2005, provided, however, sales and reclamation can proceed thereafter until December 31, 2008 . On July 15, 1994, the original mining agreement and the addendum for limestone mining were assigned from Road Materials Corporation to Prairie Material Sales, Inc . Attached is a proposed Second Addendum to the Mining Agreement between the City and Prairie Material Sales, Inc . The principal eft terms of the proposed Second Addendum to the Mining Agreement may be summarized as follows : • Second Addendum to the Mining Agreement October 10 , 2001 Page 2 1 . The existing Addendum to the Mining Agreement provides that mining operations and subsequent reclamation of the subject property shall conform with referenced plans prepared by Burnidge Cassell and Associates in 1992 and 1993 . These plans were prepared prior to the City' s design of a golf course for the property and the reclamation plans provided for in the existing plans do not adequately accommodate the City' s proposed golf course. The proposed Second Addendum provides - that the existing Burnidge Mining and Reclamation Plans would be superseded and replaced by a new plan prepared by Patrick Engineering. The Patrick Engineering Mining Plan is attached to the Second Addendum agreement as Exhibit A. Patrick Engineering is the City' s consulting engineer for the golf course project . The new Patrick Engineering Mining Plan provides for an appropriate reclamation of the mining area so as to accommodate the City' s proposed golf course . Prairie Material would be required to reclaim the mining area according to the Patrick Engineering Mining Plan and as set forth in the proposed Second Addendum. 2 . The existing Addendum to the Mining Agreement provides that the sequence and phasing of the remaining limestone extraction and other mining activities would proceed from the location of current mining activities to the north. The proposed Second Addendum provides that in lieu of proceeding with mining activities to the north Prairie Material shall instead conduct mining activities in an area to the south identified in the Second Addendum as the Replacement South Mine Area. Upon completing mining activities in the Replacement South Mine Area Prairie Material may then complete the mining of the area identified on the Patrick Engineering Mining Plan as the Final Mining Area. The Patrick Engineering Mining Plan identifies the area where current mining activities are being conducted as the "Current Mining Area" , identifies the area to the north where mining activities would have continued beyond the current mining area as "Unmined North Area" and identifies the new area to the south as the "Replacement South Mine Area" . The Unmined North Area and the Replacement South Mine Area are of a comparable size . The proposed Second Addendum also includes additional restrictions regarding mining in the Replacement South Mine Area including limiting the depth of excavation and the slopes of the banks . The relocation of mining activities from the Unmined North Area to the Replacement South Mine Area has two distinct advantages. First, moving the mining activities to the south Second Addendum to the Mining Agreement October 10, 2001 Page 3 will move such mining activities further away from the homes located north of Route 20 . Second, the proposed Replacement South Mine Area is adjacent to a large stockpile of soil referred to on the Patrick Engineering Mining Plan as "Mount Elgin Stockpile" . The mining in the Replacement South Mine Area will allow a large volume of the soil within Mount Elgin to be pushed into the Replacement South Mine Area as part of the reclamation of the Replacement South Mine Area thereby greatly reducing the cost of reclaiming the Mount Elgin Stockpile area. The proposed Second Addendum provides that the City would pay 75% of the cost of moving the soil from the Mount Elgin Stockpile and Prairie Material would pay 25% of such cost . 3 . The existing Addendum to the Mining Agreement allows Prairie Material to continue mining activities through May 31, 2005 and to continue sales and reclamation until December 31, 2008 . The proposed Second Addendum would shorten the mining and reclamation sales and periods whereby Prairie Material must discontinue all mining no later than December 31, 2003 and ft must complete sales and reclamation no later than December 31, 2005 . 4 . The relocation of mining activities to the Replacement South Mine Area will require the City to relocate the leaf compost piles currently situated in the Replacement South Mine Area. The City has already awarded a contract for the relocation of such compost piles . 5 . Prairie Material has previously installed a well on the site. Prairie Material uses the water from this well to control dust created by its mining operations . The proposed Second Addendum provides that the City shall have the right to make joint use with Prairie Material of the existing well for the purposes of irrigating the golf course being constructed by the City west of the mining site and east of McLean Boulevard. The City will install a new pump at a lower depth having a capacity of not less than 400 gallons per minute. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED Extensive negotiations have been conducted with representatives of Prairie Material Sales, Inc . City staff also sent a letter to the homeowners north of Route 20 to inform them of the terms of the proposed Second Addendum to the Mining Agreement . • rk Second Addendum to the Mining Agreement October 10, 2001 Page 4 Yk--- FINANCIAL IMPACT The City currently receives a 10 percent royalty on all sales for the site. There is no change proposed in the royalty percentage in the second addendum to the mining agreement. In 2000, the City received $654, 000 in mining royalties. It is estimated that approximately $550, 000 will be collected in 2001. LEGAL IMPACT ANone. ALTERNATIVES 1 . Approve the proposed Second Addendum to the Mining Agreement . 2 . Do not approve the proposed Second Addendum to the Mining Agreement. ew RECOMMENDATION It is recommended that the City Council approve the proposed Second Addendum to the Mining Agreement with Prairie Material Second Addendum to the Mining Agreement with Prairie Material Sales, Inc. R. Aectfully submitted 4111 42 .yce A. Parker City Manager WAC/nr Attachment r