Loading...
HomeMy WebLinkAbout03-261 Resolution No. 03-261 RESOLUTION AUTHORIZING EXECUTION OF A HOST CITY AGREEMENT WITH MIDWEST COMPOST, LLC FOR A SOLID WASTE TRANSFER STATION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David M. Dorgan, City Manager, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a Host City Agreement on behalf of the City of Elgin with Midwest Compost, LLC for a Solid Waste Transfer Station, a copy of which is attached hereto and made a part hereof by reference . s/ Ed Schock Ed Schock, Mayor Presented: September 24 , 2003 Adopted: September 24 , 2003 Vote : Yeas : 6 Nays : 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk rr,‘ n AUG 2 0 2004 1HOST CITY AGREEMENT - LL)� This Host City Agreement (the "Agreement") is made this /(da e , 2003, by and between Midwest Compost, LLC, a Wisconsin limited liability company authorized to do business in Illinois ("Midwest"), and the City of Elgin, an Illinois municipal corporation ("City"). WITNESSETH: WHEREAS, Midwest is the owner of approximately 5.1 acres of property located at 1320 Spaulding Road, in the City of Elgin, Illinois, and legally described on Exhibit A attached hereto ("Midwest Property"); and WHEREAS, the Midwest Property is currently used as a landscape waste transfer station ("Landscape Waste Transfer Station"), pursuant to a permit issued by the Illinois Environmental Protection Agency ("IEPA") dated November 6, 2001 ("Landscape Waste Permit") and a conditional use approval granted by the City under Ordinance No. G57-00 dated October 25, 2000; and WHEREAS, Midwest plans to file with the City a request for siting approval to construct and operate on the Midwest Property a waste transfer station ("Transfer Station"); and WHEREAS, Midwest and the City have agreed to enter into this Agreement prior to Midwest filing its application for local siting approval for the Transfer Station; and WHEREAS, the City has not, by entering into this Agreement, predetermined whether it will grant or deny siting approval for the Transfer Station or whether Midwest can (or cannot) satisfy any of the criteria related to siting approval, and the City retains all of its authority in respect of siting approval in accordance with Section 39.2(a) of the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/39.2(a) and the City of Elgin Siting Ordinance, Chapter 9.33 of the City's Municipal Code; and WHEREAS, if the Effective Date occurs, then Midwest is willing to pay the Host Benefit Fee, as hereinafter set forth, to the City to assist the City in respect of the costs associated with the Transfer Station, but such fees may be used for the City's general municipal purposes or such other lawful public purposes as solely determined by the City; and WHEREAS, capitalized terms not otherwise defined herein shall have the meaning given in Section 3. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of Recitals. The Parties agree that the foregoing recitals are material to this Agreement and are hereby incorporated and made a part of this Agreement as if they were fully set forth herein. 2. Property Covered. This Agreement applies to the Midwest Property, which is legally described on Exhibit A attached hereto. 3. Definitions and Permitted Waste. a. For the purpose of, and regardless of where they appear, in this Agreement, the following capitalized terms shall have the following meanings: "Act" means the Illinois Environmental Protection Act, 415 ILCS 5/ 1 et seq. "Agreement" shall have the meaning given in the preamble. "City" shall have the meaning given in the preamble. "Contractor" shall have the meaning given in Section 5.c. 2 "Costs" shall have the meaning given in the Section 11.a. "Disposal" means any treatment, storage or disposal of Waste. "Effective Date" means the date on which Waste is first received at the Transfer Station to be transferred for Disposal. "Event of Default" shall have the meaning given in Section 17.a. "Hazardous Waste" shall have the meaning given in Title 1, Section 3 of the Act. "Host Benefit Fee" shall have the meaning given in Section 5.c. "IEPA" shall have the meaning given in the recitals. "Index" shall have the meaning given in Section 5.c. "Landscape Waste" means any material that Midwest is currently permitted to accept at its Landscape Waste Transfer Station under its existing Landscape Waste Permit. "Landscape Waste Transfer Station" shall have the meaning given in the recitals. "Landscape Waste Permit" shall have the meaning given in the recitals. "Leaf Contract" means the Agreement for Bid Number: 01-111 for: Leaf Processing and Disposal —2001 Leaves dated as of September 14, 2001, the term of which was extended by the letter dated June 25, 2002 from Gail Cohen, City of Elgin to Charles Murphy, Midwest Compost LLC, and as may be further extended, amended or modified from time to time hereafter. "Leaf Contract Option" shall have the meaning given in Section 5.f. "Midwest" shall have the meaning given in the preamble. "Midwest Property" shall have the meaning given in the recitals. "Municipal Waste" shall have the meaning given in Title 1, Section 3 of the Act. "Permitted Truck Route" shall have the meaning given in Section 7.a. 3 "Received Waste" means any Waste received at the Transfer Station that is transferred for Disposal, excluding Landscape Waste and Recyclable Materials. "Recyclable Materials" means any material received at the Transfer Station that is transferred for recycling and reuse and not for Disposal. "Regional Utility Improvements" shall have the meaning given in Section 14.b. "Special Waste" shall have the meaning given in Title 1, Section 3 of the Act, excluding potentially infectious medical waste and Hazardous Waste. "Total Waste" means all of the Waste received at the Transfer Station plus all Special Waste and all Recyclable Material. "Transfer Station" shall have the meaning given in the recitals. "Waste" shall have the meaning given in Title 1, Section 3 of the Act, including but not limited to, Municipal Waste and Special Waste, b. Midwest covenants and agrees that the Transfer Station shall receive only Municipal Waste, Landscape Waste, Recyclable Materials and Special Waste. Midwest covenants and agrees that the Transfer Station shall not accept Hazardous Waste and it shall not accept potentially infectious medical waste. 4. Limitation on Transfer Capacity. Midwest covenants and agrees that it shall not receive at the Transfer Station more than 1,500 tons of Total Waste per day(calculated on a rolling twelve (12)month average), except with the prior written approval of the City Council or such other person designated in writing by the City Council; provided however, in no event shall the Transfer Station receive during any day more than 2,000 tons of Total Waste. 4 5. Host Benefit Fee. Midwest shall pay a Host Benefit Fee to the City as follows. a. The Host Benefit Fee shall be payable by Midwest to the City commencing on the Effective Date and continuing thereafter as provided in this Agreement, and in consideration of such Host Benefit Fee, the City agrees that so long as Midwest pays the Host Benefit Fee hereunder the City will not levy any additional fees or taxes or increase the amount of fees or taxes assessed on Midwest, the Midwest Property or any of the operations conducted thereon; provided, however, the foregoing restriction on the levy of any additional fees or taxes by the City shall not apply to: (i) any fee or tax which is uniformly assessed upon all members of a class of taxpayers of which Midwest is a member, other than a class of taxpayers that is based on ownership or operation of a waste transfer station or solid waste management facility, (ii) real estate taxes, (iii) ad valorem taxes similarly assessed on other property or operations, (iv) utility taxes, (v) telecommunications taxes, (vi) water and sewer connection fees and water and sewer user fees, (vii) any other fee or tax which Midwest is obligated to pay pursuant to county, state or federal law, or pursuant to the laws or regulations of any governmental entity with jurisdiction and (viii) sales taxes. b. The Host Benefit Fee shall be payable by Midwest to the City for (i) each ton of Received Waste and for(ii) each ton of Recyclable Materials in excess of 500 tons per day (calculated on average for the most recent quarter). c. The initial host benefit fee ("Host Benefit Fee") shall be equal to One Dollar Eighty Cents ($1.80) for each ton of Received Waste and for each ton of Recyclable Materials on which the Host Benefit Fee is payable. If the City has exercised the Leaf Agreement Option in Section 5.f, then during any time period thereafter that the City requires its 5 then-current waste hauler ("Contractor") under the City's contract for hauling of the City's Municipal Waste and Recyclable Materials to transport to the Transfer Station all Municipal Waste and Recyclable Materials collected by such Contractor, the Host Benefit Fee during such time period shall be increased by ten cents (100) per ton. On the earlier of(i) January 1, 2007 and (ii) January 1 following the first twelve (12) month period after the Effective Date, and in each case on every January 1st thereafter, the Host Benefit Fee shall be adjusted by the percentage of increase during the previous year in the Revised Consumer Price Index for All Urban Consumers for Chicago, Illinois, as such rate is published from time to time by the United States Department of Labor Statistics ("Index"); provided however, in no event shall the Host Benefit Fee rate decrease. The annual adjustment for years after the first annual adjustment shall be based on the amount of the adjusted Host Benefit Fee from the previous year. If the Index shall cease to be published, the parties shall mutually agree upon a substitute index, which is comparable to the Index, and which shall then be used for determining the annual rate of adjustment. d. The Host Benefit Fee shall be due and payable by Midwest to the City each calendar quarter, no later than the 30th calendar day after the end of each calendar quarter. No later than ten (10) calendar days after the end of each calendar quarter, Midwest shall prepare and submit to the City's Solid Waste Coordinator a statement containing the following information in reasonably sufficient detail to allow the City to independently calculate the amount payable by Midwest to the City under this Agreement: (1) For each day during the calendar quarter the amount in tons, of: (i) Waste transferred from the Transfer Station for Disposal, (ii) Recyclable Material transferred from the Transfer Station for 6 recycling, and (iii) Landscape Waste transferred from the Transfer Station. (2) For each day during the calendar quarter, the hours of operation for the Transfer Station. (3) The amount of Received Waste transferred from the Transfer Station for Disposal or recycling during such calendar quarter, and the total Host Benefit Fee payable on Recyclable Materials transferred from the Transfer Station for recycling during such calendar quarter. e. The City shall have the right to inspect, audit, and contest any determination that the Host Benefit Fee was not payable on any Received Waste transported from the Transfer Station. The City may dispute any statement submitted by Midwest within two (2) years of receipt of such statement. In any dispute, the parties agree that if Midwest has failed to maintain the records required under this Agreement, Midwest shall carry the burden of proving that the Host Benefit Fee was not payable on any Received Waste. During the pendency of any dispute, the Host Benefit Fee shall continue to be payable by Midwest and Midwest shall in all events pay the undisputed portion of the Host Benefit Fee. f. Midwest hereby grants to the City the option ("Leaf Contract Option") to extend the Leaf Contract for one (1) five (5) year period exercisable after the Effective Date and during the term hereof by notice to Midwest no less than thirty (30) days prior to the expiration of the term of the Leaf Contract as extended. The Unit Pricing (as defined in the Leaf Contract) shall be adjusted each October 1 during such five (5)year option period based upon the change in the Consumer Price Index for Chicago-Gary-Kenosha. 7 6. Hours of Operation. Midwest shall accept Waste and Recyclable Material and Landscape Waste at the Transfer Station only during the hours from 4 a.m. to 8 p.m., Monday through Saturday. The Transfer Station shall be closed on Sunday. 7. Permitted Truck Routes. a. Trucks that are owned, operated or controlled by Midwest shall travel to and leave from the Transfer Station using the following route (hereinafter the "Permitted Truck Route"), except as may be necessary for the collection of Received Waste and Recyclable Material from properties located within two miles of the Transfer Station: (1) Transfer trailers leaving the Transfer Station shall go west on Spaulding Road to Gifford Road; north on Gifford Road to Bluff City Boulevard; east on Bluff City Boulevard to Route 20; trucks shall exit the corporate limits of the City on Route 20. (2) Transfer trailers, and collection trucks to the extent reasonably practicable, traveling to the Transfer Station from the North shall enter the existing corporate limits of the City on Route 20 and proceed to Bluff City Boulevard; west on Bluff City Boulevard to Gifford Road; south on Gifford Road to Spaulding Road; east on Spaulding Road to the Transfer Station. (3) Transfer trailers, and collection trucks to the extent reasonably practicable, traveling to the Transfer Station from the South by way of West Bartlett Road shall proceed to Gifford Road and turn 8 North on Gifford Road to Spaulding Road; then proceed east on Spaulding Road to the Transfer Station. b. Midwest shall direct the owners and operators of trucks that Midwest does not own, operate or control that such trucks shall use only the Permitted Truck Route to and from the Transfer Station, except as may be necessary for the collection of Received Waste or Recyclable Material from properties located within two miles of the Transfer Station. c. The parties agree that Spaulding Road, from Gifford Road on the west to the east boundary of the City of Elgin corporate limits, is an 80,000 pound truck route under the jurisdiction of the City. The parties also agree that Bluff City Boulevard from Gifford Road on the west to Highway 20 on the east is an 80,000 pound truck route under the jurisdiction of the City. The City shall post and maintain the appropriate 80,000-pound truck route signs along Spaulding Road and Bluff City Boulevard. d. Midwest shall pay for the reconstruction or improvement of Spaulding Road if, prior to the Effective Date and in the City's sole discretion, it is necessary to reconstruct or improve Spaulding Road from Gifford Road on the west to the east boundary of the City of Elgin corporate limits. Such reconstruction or improvement shall be consistent with Spaulding Road's 80,000-pound truck route designation and be in accordance with the applicable specifications of the Illinois Department of Transportation and shall be based upon a road cross section reasonably determined by the City Engineer, but such reconstruction or improvement shall not include curb, gutter, sewers or lighting. Midwest shall be entitled to a credit as reimbursement for the out-of-pocket third party costs of any reconstruction or improvement of Spaulding Road against the amount of the Host Benefit Fee otherwise payable each quarter pursuant to this Agreement, which credit shall be calculated in accordance with this Section 7. 9 Such credit shall include reimbursement for all of the out-of-pocket third party costs paid by Midwest for complying with the City's specifications and requirements and Midwest shall be entitled to include, as a part of the credit, simple interest on the funds it expends at the rate of 8% per annum (not compounded). The amount of the credit each quarter shall be calculated by Midwest, and shall be based on the total outstanding, unreimbursed costs of the reconstruction or improvement, but in no event shall such credit exceed fifty-percent (50%)of the Host Benefit Fee otherwise payable for such quarter. The credits taken by Midwest against the quarterly Host Benefit Fee shall reduce the amount of the outstanding unreimbursed cost. Once Midwest is reimbursed for all of its out-of-pocket third party costs paid by Midwest through credits against the Host Benefit Fee the amount of the Host Benefit Fee payable by Midwest shall be reinstated at its full amount. The parties agree that any such road reconstruction or improvement shall be performed by the City or its contractors; provided that Midwest shall deposit with the City the full amount of the estimated cost of such reconstruction or improvement prior to the City undertaking any obligation or entering into any contract to perform any work regarding the reconstruction or improvement. Such sums deposited by Midwest with the City shall be available to the City to pay the cost of such reconstruction or improvement. (e) Sections 7(a) and 7(b) shall not apply to any vehicle transporting exclusively Landscape Waste. 8. Reimbursement of City Expenses. a. Midwest shall pay on behalf of the City or reimburse the City for all reasonable and necessary expenses incurred in (i) conducting the review of the siting application, (ii) conducting any public hearings, (iii) making the siting decision, and/or(iv)responding to any appeal of the siting decision by any person (including Midwest), including but not limited to as to 10 each of the foregoing the costs of any consultants, attorneys or hearing officer retained by the City who are not also employees of the City, costs of court reporting and transcripts for any public hearings, and witness fees. The City shall periodically submit to Midwest a detailed accounting of all payables to be paid by Midwest or expenditures to be reimbursed by Midwest pursuant to this Section 8. Midwest shall pay such expenses or reimburse such expenditures within forty-five (45)days of receipt of request from the City. b. The provisions of this Section 8 shall become effective and binding upon Midwest upon the date of execution of this Agreement by both parties, and/or shall survive the termination and/or expiration of this Agreement until all of the expenses described in Section 8.a have been paid in full. 9. Transfer Station Operations. a. Midwest shall be permitted to use the Midwest Property for the indoor and outdoor storage and parking of vehicles and equipment necessary or useful in conducting the operations conducted on the Midwest property, said vehicles and equipment including but not limited to containers, trailers, and collection vehicles. b. Midwest shall be permitted to park loaded and unloaded transfer trailers, containers, and collection vehicles on the Midwest Property, whether inside or outside the Transfer Station building inside a fenced area. Midwest shall cause all parked loaded transfer trailers and loaded containers to be covered at all times that they are not under roof. c. All Waste shall be removed from the Transfer Station within 24 hours of receipt; provided however, Waste may be stored at the Transfer Station for more than 24 hours if (i) such 24-hour period occurs over a Saturday, Sunday or holiday, (ii) the Waste is stored in 11 tarped or similarly covered transfer trailers and/or containers all of which are parked inside the Transfer Station building, and (iii) the Waste is removed on the next business day. 10. Acceptance of Waste. The City, in its sole discretion, from time to time, may require the Contractor to transport to the Transfer Station all Municipal Waste and Recyclable Materials collected by such Contractor under the City's contract for hauling Municipal Waste and Recyclable Materials. If the City designates the Transfer Station for such purposes Midwest shall accept such waste at the Transfer Station, if allowed, and the total fee charged by Midwest to the Contractor for Disposal of all of the City's Municipal Waste and Recyclable Material shall be five percent (5%) less than the posted gate rate customarily charged by Midwest, including all taxes, fees and surcharges. 11. Midwest Indemnification and Insurance. a. Midwest shall, to the maximum extent permitted by law, indemnify, defend and hold harmless, and pay on behalf of, the City, its officials, officers, employees and attorneys from and against any and all third claims, suits, causes of action, administrative orders, judgments, settlements, loss, liability, damage, cost and expense, and attorneys fees and expenses of litigation, (collectively, "Costs"), including without limitation Costs for bodily injury to or death to any persons and any property damage, arising out of or in connection with (i)Midwest's design, installation, construction, ownership, operation, repair, restoration, modification, removal, maintenance, or the failure of any of the foregoing, at the Transfer Station, (ii) Midwest's violation of any laws or regulations in its ownership or operation of the Transfer Station, (iii) Midwest's breach of this Agreement, and/or (iv) any Costs related to third party claims regarding any response, removal, remediation, damage to natural resources, health assessments, health claims, increased risk of adverse health effects, contribution and third party claims, and any actions required pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. Section 9601, et seq., as amended from 12 time to time, and all other applicable statutes, regulations and under common law, for any release or threatened release of the Waste collected by, stored at and transferred to or from the Transfer Station. If Midwest accepts the defense and indemnity of a claim made against the City and tendered by the City to Midwest under this Section 11.a, and Midwest pays the defense Costs, then Midwest shall have the right to defend the City utilizing attorneys reasonably acceptable to the City. Notwithstanding any provision herein to the contrary, the provisions of this Section 11.a shall survive the expiration and/or termination of this Agreement. b. Prior to acceptance by Midwest of the City's Municipal Waste, Midwest and the City shall enter into a mutually acceptable indemnification related thereto pursuant to which Midwest indemnifies the City. c. Midwest shall obtain and maintain or cause to be maintained in full force and effect at all times on and after the commencement of construction of the Transfer Station and continuing at all times that Waste is received at the Transfer Station, the following insurance coverages: (1) Commercial General Liability insurance in an amount not less than $1,000,000.00 per occurrence and a combined limit of $2,000,000.00, with a maximum deductible or self-insured retention of$100,000.00; (2) Excess liability insurance covering claims in excess of the underlying insurance described in Section 11.c(1) above, with a $3,000,000 minimum limit; (3) Workers Compensation Insurance as required by Illinois law and regulations; and 13 • • (4) Employer's Liability Insurance in the amount of $500,000.00 per accident, with a maximum deductible or self-insured retention of $100,000.00. d. The liability insurance described in Section 11.c above shall be (i) issued by an insurance company reasonably acceptable to the City, (ii) written on a comprehensive, broad form policy, (iii) include endorsements that name the City as an additional insured, provide a severability of interests and cross liability clause, and provide that the insurance shall be primary and not excess to or contributing with any insurance or self-insurance maintained by the City, and (iv) include a waiver of subrogation from such insurance company. Midwest hereby waives and covenants not to sue the City for any and every claim for recovery from the City for any and all loss or damage covered by any of the insurance policies to maintained under this Agreement. To the extent permissible by law, Midwest waives any limits to the amount of its obligations to indemnify, defend or contribute to any sums due under any claims by any employee of Midwest that may be subject to the Workers Compensation Act, 820 ILCS 305/1 et seq. or any other related law or judicial decision (such as Kotecki v. Cyclops Welding Corp., 146 II1.2d 155 (1991)). e. Midwest shall promptly deliver to the City copies of all insurance policies, then in effect, that satisfy the requirements of Section 11.c. Midwest shall deliver to the City a certificate of insurance evidencing that the insurance coverages required hereunder are in full force and effect, and providing that the insurer shall give the City notice at least thirty (30) days prior to the effective date of any cancellation, lapse or material change in such insurance policies. 12: Effective Date. a. Except as provided in Sections 7(d), 8, 11 and 14, the obligations of the parties under this Agreement shall be subject to satisfaction of the condition precedent that the Effective Date shall have occurred. 14 b. Midwest covenants and agrees that, notwithstanding any provision in this Agreement to the contrary, the City has no duty or obligation under this Agreement, express or implied, to act or to not take action in respect of Midwest's request for siting approval for the Transfer Station pursuant to Section 39.2 of the Act, including without limitation, that the City does not have any duty or obligation to satisfy the condition precedent in Section 12.a above. Midwest covenants and agrees that if the City does not grant siting approval for the Transfer Station pursuant to Section 39.2 of the Act, for any reason whatsoever, whether proper or improper, or whether due to mistakes or misstatements of law or fact during such siting approval consideration, Midwest shall in no event have any claim or cause of action against the City under this Agreement. Nothing in this Agreement shall be construed or deemed to be a covenant by the City in respect of the City's obligations under Section 39.2 of the Act, which obligations shall be separate and apart from any obligations to Midwest under this Agreement. Midwest agrees that Midwest shall not have any claim or cause of action against the City under this Agreement for the City's failure to comply with Section 39.2 of the Act. Nothing to the contrary herein withstanding shall be construed to limit either party's rights under the Act. 13. Landscape Waste Transfer Station. If the Effective Date does not occur, then the City agrees that nothing in this Agreement shall modify, amend, diminish or alleviate any existing rights, permits, restrictions, requirements, or limitations applicable to the existing Landscape Waste Transfer Station. 14. Sanitary Sewer and Water. a. Midwest shall have the right to connect the Transfer Station to the City's sanitary sewer and water systems and receive sanitary sewer and water services therefrom, in accordance with applicable law, rules and regulations. In lieu of connecting to the sanitary 15 sewer, Midwest shall have the right, if permitted by law, to utilize a septic holding tank to serve the Transfer Station. Midwest shall pay all applicable connection charges related to the City's sanitary sewer and water systems, as well as all costs and expenses associated with the installation and maintenance of the service lines associated with such connections within the property line of the Midwest Property. Nothing in this Agreement shall modify, amend or waive any requirements, restrictions, or fees applicable to Midwest, including without limitation Midwest shall pay for the foregoing sanitary sewer and water services in accordance with the applicable sanitary sewer and water rates established from time to time by the City. b. Midwest may construct utilities, including water mains, sanitary sewer mains and a force main on and off the Midwest Property for the benefit of other properties situated within or outside of the City("Regional Utility Improvements"). If Midwest is unable to secure directly from the owners or developers of such properties reimbursement of the proportionate share of the cost of the Regional Utility Improvements, the City shall enter into a recapture agreement for the purpose of ensuring that Midwest recaptures from such other properties the proportionate share of such costs. For purposes of this Agreement, proportionate share shall be determined in accordance with the percentage of the cost of such Regional Utility Improvements that is attributable to each of the properties designated on a service area. c. In the event Midwest is unable to obtain utility easements over, under, across, or through property not owned or controlled by Midwest or not owned by the City or under City's control which are necessary to construct utility lines to the Midwest property, the City shall use, to the full extent permitted by law, its eminent domain power to secure such easements. Prior to commencing any condemnation action, Midwest shall submit, for City review and approval, written documentation demonstrating that Midwest has pursued reasonable 16 alternatives for the acquisition of such easements, and Midwest shall deposit with the City the amount of funds reasonably necessary to pursue eminent domain action and to secure the subject easements. All such actions by the City shall be at no cost to the City, which costs shall be born solely by Midwest but, upon the written request of Midwest, the City shall not unreasonably fail to timely file a condemnation action. d. The provisions of this Section 14 shall become effective and binding on the parties as of the date that siting approval granted by the City for the Transfer Station pursuant to Section 39.2 of the Act, becomes non-appealable and once non-appealable, shall survive termination and/or expiration of this Agreement. Siting approval shall be considered to be non- appealable if siting approval is granted by the City, all necessary IEPA permits are issued and all appeals and enforcement actions regarding any of the forgoing, as well as appeals thereof, have been successfully resolved in Midwest's favor or the relevant time for filing any appeals has run. 15. Audits and Records. a. Midwest shall maintain, for a period of at least two (2) years, daily records of the amounts and types of Total Waste transferred from the Transfer Station for Disposal or recycling and/or shall provide such records to the City upon written request. Such records shall include (i) disposal tickets or logs, showing the amount in tons of Waste for each truck and signed by the driver of the trucks transferring Waste from the Transfer Station to Disposal or recycling sites. Similar records shall be kept regarding the amount of Landscape Waste transferred and Midwest shall provide such records to the City upon written request. In addition to the submittals required under this Agreement, additional records shall be keptand shall be provided to the City upon written request regarding (i) the hours of operation of the Transfer Station, and (ii) the amount of the Host Benefit Fee payable on each ton of Received Waste 17 transferred from the Transfer Station for Disposal or recycling during each calendar quarter, and the total Host Benefit Fee payable during each calendar quarter. b. The City shall have the right to audit the records of Midwest upon five (5) business days notice. In the City's discretion, the audit may be performed by an accountant or other consultant selected by the City upon five(5)business days notice to Midwest. c. Midwest covenants and agrees to fully cooperate with the City or its designee during any audit and/or inspection, to respond timely and fully to any questions or requests, and to make available Midwest's employees for interviews. d. Where such audit determines that Midwest has underpaid the Host Benefit Fee,Midwest shall pay the reasonable cost of the audit. 16. Compliance with Applicable Laws. Midwest agrees to operate the Transfer Station in accordance with and to otherwise fully comply with all applicable federal, state and local laws (including the municipal code of the City), rules, regulations and ordinances. 17. Breach and Remedies. a. Midwest shall be in default under this Agreement upon the happening or occurrence of any of the events or conditions described in Section 17.a.(1) through and including 17.a.(5), each of which shall be an "Event of Default" for purposes of this Agreement: (1) Midwest breaches or fails to observe or perform any of Midwest's material obligations under this Agreement,unless within thirty(30) days after notice from City specifying the nature of such breach or failure, Midwest cures such breach or failure; 18 (2) Midwest is dissolved, or Midwest's existence is terminated and its business is permanently discontinued, (3) Midwest fails to pay, when due, any amount due hereunder, and such failure continues for a period of forty-five (45) days following the receipt by Midwest of notice of such failure; (4) Any representation or warranty made by Midwest in this Agreement was false or misleading in any material respect when made; or (5) Midwest is adjudicated as bankrupt or insolvent, or an order is entered for relief under any bankruptcy law with respect to Midwest. b. Upon an Event of Default described in Section 17.a(1) through and including 17.a(5) the City shall be entitled to exercise all remedies available at law or in equity (including set-off and recoupment, and notwithstanding the requirements in Section 17.c applicable to termination of this Agreement) or other appropriate proceedings, including without limitation bringing an action or actions from time to time for recovery of amounts due and unpaid by Midwest, and/or for damages and expenses resulting from the Event of Default,which shall include all costs and expenses reasonably incurred in the exercise of its remedy (including reasonable attorneys' fees). c. In addition to, and not exclusive of, the City's remedies under Section 17. b, the City shall have the right to terminate this Agreement without any further obligation of the City hereunder, and in which case (subject to this Section 17.c)Midwest shall permanently cease any further operation of the Transfer Station where: 19 (1) Midwest assigns this Agreement or the rights and obligations of Midwest are succeeded to in each case in breach of Section 18 and Midwest does not cure the breach,or (2) there have been no less than three (3)uncured Events of Default by Midwest under this Agreement which unduly adversely impact the public health, safety and welfare. Pursuant to this Section, the City must serve Midwest with notice of its exercise of the remedy under this Section 17.c to terminate this Agreement. Thereafter, Midwest shall have thirty (30) days to cure any of such Event or Events of Default. If Midwest fails to cure such breach, Event or Events of Default within thirty (30) days, the City must obtain a final and non- appealable determination by a court of competent jurisdiction that the events or circumstances in Section 17.c.(1) or Section 17.c.(2) have occurred. Midwest agrees that the City shall not have an adequate remedy at law if the City terminates the Agreement under this Section 17.c, and that the City shall be entitled to equitable relief, including a preliminary and permanent injunction to enforce this Section 17.c. d. All rights and remedies of the City set forth in this Agreement which shall be cumulative, and no remedy available to the City shall be exclusive of any other remedy. e. Except for Midwest's obligation to pay the Host Benefit Fee to the City, in no event shall either party, or its agents, employees, successors, assigns, consultants, suppliers or contractors be liable to the other party under this Agreement or to its members, officers, directors, partners, affiliates, agents, employees, successors, assigns, suppliers or contractors for special, indirect, consequential,punitive or exemplary damages of any nature or kind whatsoever, 20 including loss of profits or revenue, loss of contracts; cost of capital or claims of customers, and each party hereby releases and covenants not to sue the other party therefore. 18. Assignment of Rights. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective permitted successors and assigns; provided however, Midwest shall not assign this Agreement, directly or indirectly, nor shall any person succeed to the rights and obligations of Midwest by a direct or indirect transfer of an ownership interest in Midwest without the prior written consent of the City, which may not unreasonably withhold such prior consent. 19. Force Majeure. Except for the obligations to pay amounts owed under this Agreement, neither party shall be liable for its failure to perform under this Agreement to the extent due to strikes (of a widespread and general nature),riots,war, terrorism, fire, and acts of God. 20. Authority to Enter into Agreement. Midwest and the City hereby represent and warrant to each other that the individuals executing this Agreement in their official capacities have been duly authorized and empowered to sign this Agreement. The City shall provide Midwest with a certified copy of the resolution of its City Council authorizing the execution of this Agreement by the undersigned representatives of the City. Midwest shall provide the City with evidence of limited liability company action authorizing the execution of this Agreement by the undersigned representatives of Midwest. 21 • 21. Relationship of the Parties. Nothing in this agreement shall be construed to create a joint venture, partnership, association or employment relationship between the City and Midwest. 22. Severability. If any provision of this Agreement is held invalid by a court of competent jurisdiction,the other provisions of this Agreement shall not be affected thereby. 23. Amendment. No amendment, modification or change to this Agreement shall be effective unless the same shall be in writing and duly executed by the parties. 24. Termination. This Agreement shall terminate upon the mutual agreement of the parties or on the date on which the Transfer Station on the Midwest Property permanently ceases to operate, for whatever reason, including but not limited to, Midwest's decision to cease operations, which decision shall be in the sole and exclusive discretion of Midwest, or the cessation of operations due to the order of any federal, stateor local governmental body, agency or judicial authority. In any event, and notwithstanding termination and/or termination of this Agreement, any unpaid Host Benefit Fee shall continue to be payable by Midwest to the City for Received Waste in accordance with this Agreement and the obligation of Midwest to make such payment shall survive termination and/or expiration of this Agreement. 25. Notices. All notices, demands, requests, consents or other communications required by, or to be given pursuant to, this Agreement, shall be in writing and delivered to the intended recipient, by personal service, registered or certified U.S. mail, return requested, postage prepaid, 22 • or confirmed facsimile transmission, to the following addresses (which are subject to change by a like prior notice): a. If to the City: City of Elgin, Illinois Attention: Corporation Counsel 150 Dexter Court Elgin, Illinois 60120-5555 Fax: (847)931-5665 With a Copy to: Baker&McKenzie 130 E. Randolph Drive Chicago, Illinois 60601 Attn: James P. O'Brien Fax: (312) 861-2899 b. If to Midwest: Midwest Compost, LLC 1320 Spaulding Road Elgin, IL 60120 Attn: Charles Murphy Fax: (847) 931-2871 With a Copy to: Schain, Burney, Ross &Citron, Ltd. 222 N. LaSalle Street, Suite 1910 Chicago, IL 60601-11102 Attn: Glenn C. Sechen Fax: (312) 332-4514 26. Covenants Run With the Land. The parties agree that the covenants, agreements, and understandings contained in this Agreement, including without limitation the obligation to pay the Host Benefit Fee, touch and concern the Midwest Property, and that such covenants, agreements, and understanding shall 23 run with the Midwest Property. Midwest agrees that the City may prepare, and Midwest shall promptly execute, duplicate originals of an instrument, in recordable form, which will constitute a Memorandum of Host City Agreement, attaching an executed copy of this Agreement as an exhibit, and record such Memorandum in the Office of the Cook County, Illinois Recorder of Deeds. 27. Financial Assurance. Not less than ten (10) days prior to accepting any Waste at the Transfer Station, Midwest shall obtain, submitto the City, and maintain in accordance with this Section 27, financial assurance in an amount sufficient to cover the cost of disposing of the maximum amount of waste stored at the Transfer Station and the costs of properly closing the Transfer Station. Such financial assurance shall be in the form of a letter of credit, escrow account, guaranty of a creditworthy guarantor (which may include Midwest), or policy of insurance, in each case reasonably satisfactory to the City. Such financial assurance must be maintained as long as the Transfer Station is operating under this Agreement and for two (2) years after termination and/or expiration of this Agreement. Midwest agrees that the issuer or counterparty to such financial assurance must, at all times during the term of this Agreement, be reasonably acceptable to the City. 28. Police Power Savings Clause. Notwithstanding any provision herein to the contrary, nothing in this Agreement shall abridge, impair, or affect the police powers of the City. Midwest shallcomply with all applicable laws, regulations and ordinances (including the applicable ordinances of the City). 29. Governing Law. This Agreement shall be governed by the laws of the State of Illinois. 24 IN WITNESS WHEREOF, the City and Midwest have caused this Host City Agreement to be executed by their duly authorized representatives on the day and year written above. MIDWEST COMPOST, LLC CITY OF ELGIN By_ 7fia' /tky gl Bye •49 A(2-74----- Its: As;of e..ri-- Its: ," - - Attest: Attest: 41/ B , '10'.4410f , nib By ikee.c. - 0 Its: Its: el.- C-124.-- - 2 5 :125 EXHIBIT A LEGAL DESCRIPTION A PARCEL OF LAND IN THE WEST %2 OF SECTION 29, TOWNSHIP 41 NORTH, RANGE 9 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON WEST LINE OF SECTION 29 AFORESAID, 50 FEET SOUTHWEST FROM THE NORTHEAST PROPERTY LINE OF ELGIN, JOLIET AND EASTERN RAILWAY COMPANY AS NOW LOCATED (MEASURED AT RIGHT ANGLES THERETO); THENCE SOUTHEAST PARALLEL TO AND 50 FEET SOUTHWEST FROM SAID NORTHEAST PROPERTY LINE A DISTANCE OF 885.4 FEET TO THE EASTERLY RIGHT OF WAY LINE OF COMMONWEALTH EDISON COMPANY (SUCCESSOR BY MERGER TO PUBLIC SERVICE COMPANY OF NORTHERN ILLINOIS) AS CONTAINED IN A DEED DATED DECEMBER 29, 1939, AND RECORDED AS DOCUMENT 12472185 ON APRIL 26, 1940, IN THE RECORDER'S OFFICE OF COOK COUNTY, ILLINOIS, IN BOOK 35650 PAGE 477; THENCE SOUTHEASTERLY ALONG SAID EASTERLY RIGHT OF WAY LINE A DISTANCE OF 64.54 FEET FOR A PLACE OF BEGINNING, SAID PLACE OF BEGINNING BEING 100 FEET SOUTHWEST FROM SAID NORTHEAST PROPERTY LINE (MEASURED AT RIGHT ANGLES THERETO); THENCE SOUTHEASTERLY ALONG A LINE 100 FEET SOUTHWESTERLY FROM AND PARALLEL TO SAID NORTHEAST PROPERTY LINE A DISTANCE OF 628.8 FEET; THENCE SOUTH ALONG A LINE PARALLEL TO WEST LINE OF SAID SECTION 29, A DISTANCE OF 515.9 FEET TO A POINT ON CENTER LINE OF SPAULDING ROAD, SAID POINT BEING 601.8 FEET NORTHWESTERLY OF (MEASURED AT RIGHT ANGLES THERETO) THE CENTER LINE OF MAIN TRACK OF THE ELGIN, JOLIET AND EASTERN RAILWAY COMPANY; THENCE WESTERLY ALONG THE CENTER LINE OF SPAULDING ROAD TO THE POINT OF INTERSECTION WITH EASTERLY RIGHT OF WAY LINE OF COMMONWEALTH EDISON COMPANY; THENCE NORTHWESTERLY ALONG SAID EASTERLY RIGHT OF WAY LINE TO THE PLACE OF BEGINNING, EXCEPTING THEREFROM THE WESTERLY 40 FEET THEREOF, AS MEASURED PERPENDICULARLY TO AND PARALLEL WITH SAID EASTERLY LINE OF COMMONWEALTH EDISON COMPANY'S RIGHT OF WAY IN COOK COUNTY, ILLINOIS. ALSO EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL: BEGINNING AT THE SOUTHEASTERLY CORNER OF THE ABOVE DESCRIBED OVERALL PARCEL, POINT ALSO BEING ON THE CENTERLINE OF SPAULDING ROAD AND 601.80 FEET NORTHWESTERLY OF AS MEASURED PERPENDICULAR TO, THE CENTERLINE OF THE MAIN TRACK OF THE ELGIN, JOLIET AND EASTERN RAILWAY; THENCE WESTERLY ALONG SAID CENTERLINE OF SPAULDING ROAD, A DISTANCE OF 32.11 FEET RECORD (33.20 FEET MEASURED); THENCE CONTINUING WESTERLY, ALONG SAID CENTERLINE, ON A LINE WHICH FORMS AN ANGLE OF 175 DEGREES 46 MINUTES 08 SECONDS RECORD (173 DEGREES 04 MINUTES 13 SECONDS MEASURED) TO THE LEFT OF THE LAST DESCRIBED COURSE A DISTANCE OF 112.96 FEET RECORD (112.00 FEET MEASURED); THENCE NORTHERLY ON A LINE PARALLEL WITH AND 145.0 FEET WESTERLY OF, AS MEASURED PERPENDICULAR TO,THE EASTERLY LINE OF THE ABOVE DESCRIBED OVERALL PARCEL, ALSO BEING ON A LINE WHICH FORMS AN ANGLE OF 90 DEGREES 33 MINUTES 39 SECONDS RECORD (91 DEGREES 41 MINUTES 26 SECONDS MEASURED) TO THE LEFT OF THE LAST DESCRIBED COURSE, A DISTANCE OF 300.00 FEET RECORD (304.81 FEET MEASURED); THENCE EASTERLY ON A LINE WHICH FORMS AN ANGLE OF 90 DEGREES 00 MINUTES 00 SECONDS TO THE LEFT OF THE LAST DESCRIBED COURSE A DISTANCE OF 145.00 FEET TO SAID EASTERLY LINE; THENCE SOUTHERLY, ALONG SAID EASTERLY LINE, ALSO BEING A LINE WHICH FORMS AN ANGLE OF 90 DEGREES 00 MINUTES 00 SECONDS TO THE LEFT OF THE LAST DESCRIBED COURSE, A DISTANCE OF 299.05 FEET RECORD (305.05 FEET MEASURED) TO THE POINT OF.BEGINNING, WITH A PARCEL CLOSURE ANGLE OF 93 DEGREES 40 MINUTES 13 SECONDS RECORD (95 DEGREES 14 MINUTES 21 SECONDS MEASURED) TO THE LEFT OF THE LAST DESCRIBED COURSE, IN COOK COUNTY, ILLINOIS. F:\Legal Dept\Agreement\Midwest Compost-Host City Agreement.DOC T Ordinance No . G83-03 AN ORDINANCE AMENDING THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED, BY ADDING A NEW CHAPTER TO TITLE 9 THEREOF TO ESTABLISH A PROCEDURE FOR NEW POLLUTION CONTROL FACILITY SITE APPROVAL REQUESTS BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS : Section 1 . That Title 9 of the Elgin Municipal Code, 1976, as amended, be and is hereby further amended by adding the following Chapter 9 . 33 thereto to read as follows: "CITY OF ELGIN POLLUTION CONTROL FACILITY SITING ORDINANCE 9 .33 . 010 SHORT TITLE: The Ordinance codified in this Chapter shall be known, cited, and referred to as the CITY OF ELGIN POLLUTION CONTROL FACILITY SITING ORDINANCE. 9 . 33 . 020 PURPOSE AND FINDINGS : A. The Ordinance codified in this Chapter is adopted to regulate the siting of New Pollution Control Facilities in the City in order to determine whether: 1 . The facility is necessary to accommodate the waste needs of the area it is intended to serve; 2 . The facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; 3 . The facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property; 4 . (a) For a facility other than a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100 year floodplain, or the site is flood-proofed; (b) For a facility that is a `sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100-year floodplain, or if the facility is a facility described in subsection (b) of Section 22 . 19a of the Act, the site is flood- proofed; 5 . The plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; 6 . The traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows; 7 . If the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release; 8 . The facility is consistent with the Solid Waste Management Plan adopted by the county in which the proposed site is located; and 9. If the facility will be located within a regulated recharge area, any and all applicable requirements specified by the Illinois Pollution Control Board for such areas have been met . B. The City Council finds and determines : 1 . The Illinois Environmental Protection Act, 415 ILCS 5/1 et seq. ("Act") , restricts the authority of the Illinois Environmental Protection Agency ( "Agency" ) to issue permits for the development or construction of New Pollution Control Facilities in municipalities unless the applicant submits proof to the Agency that the location of said facility has been approved by the governing body of the municipality where such facility is located. For the purpose of the Act, the governing body of the City is the City Council . 2 . The Act requires an applicant for a New Pollution Control Facility to be sited within the City to file an Application. Said Application shall be filed with the City Clerk. After an Application is filed, the City shall take public comment and hold a public hearing on the application. The decision by the City Council with respect to the Application for such facility is required to be based solely upon the record developed at the public hearing and upon the written comments . 2 3 . In order to protect the public interest and to promote the orderly conduct of the hearing process and insure that full and complete information is made available to the governing body of the municipality, it is necessary that procedures be established for conducting the public hearings and making decisions regarding site approval requests . 4 . The Act provides that the requirements of the City' s Zoning Ordinance are superseded by the siting approval process and determination pursuant to this Ordinance. Accordingly, in accordance with the Act this Ordinance shall govern the acceptance, consideration, evaluation and decision as to any Application for the siting of a New Pollution Control Facility. 9. 33 .030 DEFINITIONS : ACTUAL COST OF REPRODUCTION: The actual cost incurred or paid by the City to reproduce any part of the record, including the cost paid by the City to a professional copy service, or in the case of a transcript, the cost paid for copies by the City to the court reporting firm. AGENCY: The Illinois Environmental Protection Agency. APPLICANT: Any person, firm or partnership, association, corporation, company, local government, joint action agency, or organization of any kind who files an Application pursuant to this Ordinance. APPLICATION: The application prepared by the Applicant and satisfying the requirements of this Ordinance for the siting of a New Pollution Control Facility within the City. CONSULTANTS: Any consultants or advisors retained by the City in connection with the Application to provide advice and counsel to the City concerning the evaluation of the proposed Pollution Control Facility using the criteria specified in Section 9 .33 . 100, including any technical , environmental, engineering, land use, economic, traffic, emergency response, groundwater, and legal issues associated therewith. Consultants shall include attorneys retained by the City for the purpose of the Application. IPCB: The Illinois Pollution Control Board. NEW POLLUTION CONTROL FACILITY: Any. (i) Pollution Control Facility initially permitted for development or construction after July 1, 1981; (ii) area of expansion beyond the boundary of a currently permitted Pollution Control Facility; or (iii) Pollution Control 3 Facility requesting approval to store, dispose of, transfer or incinerate, for the first time, any special or hazardous waste. POLLUTION CONTROL FACILITY: Any waste storage site, sanitary landfill, waste disposal site, waste transfer station, waste treatment facility, or waste incinerator, as defined in the Act . 9 .33 . 040 APPLICATION AND CONTENTS OF APPLICATION:. A. A minimum of twenty-five (25) complete copies of the Application including copies of all site plans, exhibits, and maps, shall be filed with the City Clerk. However, only ten (10) copies of large-scale engineering drawings are required to be filed with the Application, provided the Applicant files fifteen (15) copies of the engineering drawings that have been reduced onto 11" x 17" paper. Upon receipt by the City Clerk, the Application shall be date stamped. Copies of the Application shall be given to the Mayor, the members of the City Council , City Manager, Community Development Group Director and the Corporation Counsel . Upon selection, a copy of the Application shall be given to the hearing officer and any Consultants . B. The Application shall be available for public inspection at the office of the City Clerk during regular business hours. A copy of the Application or any part thereof shall be available from the City Clerk upon payment of the Actual Cost of Reproduction. The City Clerk shall fill such requests within a reasonable time . C. The Application shall contain the following information and shall be filed in the following form. 1 . The Applicant shall submit a request for siting approval on 8% " x 11" paper that sets forth: (a) The name and address of the Applicant, all direct and indirect owners of such Applicant, and the ownership interest held by such owners; (b) The name of the owner and address of the site on which the Pollution Control Facility is proposed to be located, all direct and indirect owners of such site, and the ownership interest held by such owners, and if owned in a land trust, all beneficiaries of such land trust by name and address and the ownership interest held by such beneficiaries; 4 (c) The legal description of the proposed site, and a streetaddressor some other reasonable description of where the proposed site is located; (d) A narrative description of the proposed Pollution Control Facility, its expected manner of operation and useful life, and the nature and quantity of wastes proposed to be accepted each day, month and year during operation; (e) A complete and thorough description of the area to be served by the proposed Pollution Control Facility, the waste needs in such area, and why the proposed Pollution Control Facility is necessary to accommodate such waste needs; (f) A list of all existing Pollution Control Facilities and of all proposed Pollution Control Facilities for which an application has been submitted to the Agency under the Act for a permit to develop or operate a New Pollution Control Facility in each case which are located within or serving or reasonably capable of serving the area proposed to be served and, for each such facility, the following information shall be provided: location, owner, operator, type of pollution control facility (e.g. , landfill, transfer station) , hours of operation, restrictions on operation including on the nature and quantity of waste that can be accepted, and to the extent reasonably available from public sources, nature and average quantity of waste accepted each month and year during the last three years, remaining capacity, expected remaining useful life, traffic patterns and copies of any emergency response plans;. and - (g) A description of why the proposed Pollution Control Facility is consistent with the Solid Waste Management Plan, adopted and in effect at the time of the Application in the county in which the proposed site is located. 2 . The Applicant shall submit three (3) copies of all documents, if any, submitted to the Agency pertaining to the proposed Pollution Control Facility. The Applicant may redact from such documents any trade secrets determined to be such pursuant to 415 ILCS 5/7 . 1, and if it is not reasonable to redact such trade secrets from a document, the Applicant may withhold such document . The Applicant shall submit a log reasonably identifying any 5 documents withheld because it was not reasonable to redact trade secrets from such documents. Prior to the public hearing held pursuant to this Ordinance, the Applicant shall submit to the City Clerk and the hearing officer, if any, all . additional documents submitted to the Agency pertaining to such facility. 3 . The Applicant shall submit site plans describing and showing, in concept, the proposed Pollution Control Facility including, but not limited to, existing and proposed: (a) Cross sections; (b) Fences, buildings and other structures; (c) Roads, entrances and driveways; (d) Pollution control equipment, including any air pollution control equipment, any solid waste treatment, storage, or disposal devices or equipment, any wastewater treatment works, and any stormwater management improvements, including all compliance and monitoring points; and (e) Emergency response equipment and control systems . 4 . The Applicant shall submit a topographic survey of the site of the proposed Pollution Control Facility and the surrounding area within 100 feet which indicates land use, contours, and, if applicable, the boundary of the 100-year flood plain, and such survey shall include the information required by Chapter 18 . 16 . 5 . The Applicant shall submit the plan of operation for the proposed Pollution Control Facility, which shall include the following comprehensive details : (a) Means, manner and methods of waste storage, treatment, disposal, consolidation or transfer or other processes; (b) Proposed hours of operation; (c) Job descriptions for all of the personnel ; (d) Means, manner and method of litter, vector, dust and odor control , and a plan for monitoring and complying with such operational plans; 6 (e) Management of surface and stormwater drainage and discharge; • (f) The operation of the fire control system; and (g) - Corrective and response actions for spills and other operational accidents . 6 . The Applicant shall submit a traffic study for the site of the proposed Pollution Control Facility, which shall include: (a) The proposed traffic routes for entering and leaving the proposed Pollution Control Facility, all traffic control points and the location of any schools, churches, medical care facilities, and residential uses along such routes, and any other significant features or characteristics of such routes; (b) The daily traffic patterns, number of vehicles, and nature of vehicles, each as of the date of the Application, and the locations of any regular traffic delays, slowdowns, or accidents . (c) All projected changes to existing traffic patterns due to the proposed Pollution Control Facility, including number of vehicles, nature of vehicles and the affect of such traffic patterns on the locations of any regular traffic delays and slowdowns, and areas of high incidents of traffic accidents . 7 . The Applicant shall submit financial assurance or insurance with coverages, limits and exclusions, each of which are reasonably acceptable to the City, in amounts or limits sufficient to cover property damage, personal injury, sudden and non-sudden accidental ,occurrences and pollution impairment arising out of the operation of the Pollution Control Facility, workers compensation in the statutory amount, and umbrella coverage with limits that are reasonably acceptable to the City. 8 . The Applicant shall submit a statement describing the past operating experience of the Applicant (and any subsidiary and parent corporation) in the field of solid waste management within the preceding ten (10) years. 9 . The Applicant shall submit a statement describing the past record of all convictions or admissions of 7 violations of the Applicant (and any subsidiary and parent corporation) in the field of solid waste management within the preceding ten (10) years. 10 . The Applicant shall submit a copy of all pre-filing notices required by Section 39 .2 of the Act . 11 . The Applicant shall submit any host agreement entered into between the City and the Applicant . 12 . The Applicant shall submit all additional pertinent documentary support for the Application that the Applicant wants the City Council to consider at the public hearing, and if admissible, in taking its decision under this Ordinance. It is intended that the Applicant provide a full and complete disclosure of its case to facilitate early review and analysis by all parties . However, the Applicant shall not be precluded from introducing at the public hearing documentary support for the request that was not included in the application for site location approval, provided said documents were not reasonably available at the time the application was filed. D. An application for site approval shall not be filed that is substantially the same as a request that was disapproved pursuant to a finding against an Applicant by the City under any of criteria (i) through (ix) of Section 39 .2 of the Act, as amended, within the preceding two (2) years . E. At any time prior to the completion by the Applicant of the presentation of the Applicant ' s factual evidence and an opportunity for cross-questioning by the City and any participants, the Applicant may file not more than one amended application; in which case time limitations for final action by the governing body of the municipality shall be extended for an additional period of ninety (90) days . 9 .33 . 050 REVIEW BY THE CITY: A. Upon filing, the City Clerk shall provide a copy of the Application for review and comment to the Department of Community Development, the Department of Public Works, the Fire Department, the Police Department and the Corporation Counsel . B. Prior to the public hearing, the Mayor with the consent of the City Council shall appoint a hearing officer to preside over the public hearing. The Mayor with the consent of the City Council may retain Consultants to advise the City with respect 8 to the Application, evidence adduced at the public hearing, and comments received by the City. The costs of such Consultants shall be paid directly by the Applicant . C. The Consultants retained by the City, if any, are authorized to present testimony at the public hearing as hereinafter described and to prepare reports and recommendations in response to the Application and to any written comments filed with the City Clerk. Such reports and recommendations shall be filed with the City Clerk at least ten (10) days before the public hearing commences, as hereinafter described. 9 .33 .060 PREHEARING FILINGS : A. Three (3) copies of all reports, studies, exhibits or other evidence, other than oral testimony, which any person other than the City and Applicant desires to submit for the record to be used at the public hearing, along with a list identifying the witnesses to be called to testify at the public hearing, must be filed with the City Clerk no later than ten (10) days before the public hearing commences . B. Three (3) copies of all reports, studies, exhibits or other evidence, other than oral testimony, which the City, the Consultants, if any, any City Department and any participant desires to submit for the record to be used at the public hearing, along with - a list identifying the witnesses to be called to testify at the public hearing, must be filed with the City Clerk no later than ten (10) days before the public hearing commences . C. Three (3) copies of the Applicants witness list identifying the Applicant ' s witnesses to be called to testify at the public hearing in the Applicant ' s case in chief must be filed with the City Clerk at least ten (10) days before the public hearing commences. The Application and all reports or studies contained therein shall be deemed admitted as evidence and may be used by any person as an exhibit at the public hearing. D. If the 10th day prior to the date set for the public hearing falls on a day the City Clerk' s office is not open, all submittals made pursuant to this Section 9 .33 . 060 must be filed on the next day the City Clerk' s office is open for regularly scheduled business hours . Upon receipt by the City Clerk, such submittals shall be date stamped. Upon selection, a copy of such submittals shall be given to the hearing officer and any Consultants. All such submittals shall be available for public inspection at the office of the City Clerk during regular business hours . A copy of such submittals or any part thereof shall be available from the 9 City Clerk upon payment of the Actual Cost of Reproduction. The City Clerk shall fill such requests within a reasonable time . 9 .33 . 070 PUBLIC HEARING: A. The City shall hold a public hearing on the Application. Within thirty (30) working days after an Application is filed, the City shall determine the date, time and location of a public hearing concerning the Application, but in any event the public hearing shall be held no sooner than 90 days but no later than 120 days from the date the Application was filed. with the City Clerk. A transcript shall be made and retained of all portions of the public hearing. B. The City shall notify the Applicant of the date, time and location of such hearing. The Applicant shall cause notice of such hearing to be made as follows : 1 . No later than 14 days prior to the hearing, notice shall be published in a newspaper of general circulation published in the county in which the proposed site is located. 2 . No later than 14 days prior to the hearing, notice shall be delivered by certified mail to all members of the General Assembly from the district in which the proposed site is located, to the Agency, to the County Board of the county in which the proposed site is located, and to the governing authority of all municipalities contiguous to the proposed facility or contiguous to the City. 3 . Notices given in accordance with this Section 9. 33 . 070 shall contain the following: (a) The name and address of the Applicant . (b) The owner of the site, and in case ownership is in a land trust , the names of the beneficiaries of said trust . (c) The legal description of the subject site. (d) The street address of the property, and if there is no street address applicable to the property, a description of the site with reference to location, ownership or occupancy or in some other manner that will reasonably identify the property to residents of the neighborhood. 10 (e) The nature and size of the proposed development . (f) The nature of the activity proposed. (g) The probable life of the proposed activity. (h) The time and date of the public hearing. (i) The location of the public hearing . (j ) A statement that all documentary evidence, other than oral testimony, to be submitted at the public hearing and—a est identifying witnesses must be filed with the City Clerk at least ten (10) days before the public hearing commences . (k) A statement that all persons, including members of the public, intending to testify or cross-examine must submit notice of said intent to the City Clerk or sign in with the hearing officer on or before the first day of the public hearing. (1) A statement that written comment must be received by the City Clerk or postmarked not later than 30 days after the date of the last public hearing. D. The hearing officer appointed by the City shall preside over the public hearing and shall make any decisions concerning the admission of evidence and the manner in which the hearing is conducted subject to this Ordinance. The hearing officer shall make all decisions and rulings in accordance with fundamental fairness . The hearing officer may exclude irrelevant, immaterial , incompetent or unduly repetitious testimony or other evidence. No ruling of the hearing officer shall be appealable to the governing body of the municipality. E. The Applicant shall have the burden of proving that the proposed Pollution Control Facility can demonstrate compliance with, and that the proposed Pollution Control Facility satisfies the criteria in, Section 9 . 33 . 100 . F. Any person wishing to participate at the public hearing shall have the rights, obligations or opportunities as set forth in this Ordinance consistent with Section 39 . 2 of the Act and fundamental fairness . 1. Any person appearing at such public hearing shall have the right to give testimony and comment on compliance with, and whether the proposed Pollution Control Facility satisfies the criteria in, Section 9 . 33 . 100 . 11 2 . All persons intending to participate in the hearing, including members of the public, must submit written notification of said intent to the City Clerk before the first day of public hearing or register in person with the hearing officer prior to the close or adjournment of the first day of hearing. Any person who has submitted a timely notification of intent to participate at such public hearing shall have the right to present testimony and witnesses and orally comment on compliance with, and whether the proposed Pollution Control Facility satisfies the criteria in, Section 9 . 33 . 100 . Should the public hearing extend beyond one day, any person, not of record as of the first day of the public hearing, shall not be allowed to present testimony or cross examine, except as authorized by the hearing officer for cause shown, consistent with fundamental fairness . Failure to file said notice of intent or to register in person with the hearing officer shall not prevent any person from commenting orally at the conclusion of evidence, subject to the hearing officer' s discretion. 3 . Any such person shall have the right to be represented by an attorney at said public hearing. Participants represented by attorneys shall have the right of reasonable cross examination, subject to the hearing officer' s judgment and consistent with fundamental fairness. Participants not represented by attorneys shall be allowed to submit written cross examination questions to the hearing officer, who shall exercise discretion to direct relevant and non-duplicative cross-questions to the applicable witness . Cross examination of witnesses will be permitted only during that period immediately following each witness ' testimony. If a list of cross- questions is extensive or requires technical answers, the hearing officer may permit the witness to answer the questions in writing within 15days, or such shorter time the hearing officer may set, thereafter with a copy of the answers provided to the person presenting the cross- questions and entered into the record of pleadings . G. •Conduct of the public hearing shall be substantially as follows : 1 . Call to order. 2 . Introduction of the hearing officer. 12 3 . Recognition of the Applicant and identification of the Application by the hearing officer, which isalready deemed to be admitted as evidence for the public hearing. 4 . Consideration and admission of evidence from the Applicant by the hearing officer of fees, notices, and date of filing of the Application. 5 . Consideration and admission of evidence from the City, the Consultants, any City Departments and any other parties by the hearing officer of any reports, exhibits, maps, or documents timely submitted to the City Clerk pursuant to this Ordinance. 6 . The Applicant, the City, and other parties represented by counsel may make an opening statement . 7. The Applicant shall first present any testimony and/or any witnesses the Applicant may wish to call . Upon the close of the Applicant ' s evidence, the City and other parties may offer expert witnesses and other testimony or evidence they may wish to present. Members of the public properly of record may then present oral comment . The hearing officer shall decide the order of presentation of testimony subject to this Ordinance. All witnesses shall testify under oath. Testimony may include the use of exhibits . All witnesses shall be subject to reasonable questioning as follows: direct, cross examination, redirect, and recross. After all parties have presented testimony, reasonable rebuttal and surrebuttal may be allowed at the discretion of the hearing officer. 8 . After conclusion of the presentation of all testimony, summary statements may be made by the Applicant, the City, and any other personproperly a party to the public hearing, subject to any reasonable limitations as imposed by the hearing officer. After the summary statements, the Applicant may make a rebuttal statement, subject to reasonable limitations as imposed by the hearing officer. 9. At the close of the hearing, the hearing officer shall make any findings or determinations concerning the credibility of any witnesses and the admissibility of any evidence. The hearing officer shall establish a schedule for filing any proposed findings of fact with the City Clerk by any person properly a party to the public hearing, and any objections thereto. 10 . Hearing closed. 13 H. Should any issues, facts, data, or other evidence arise during the course of the public hearing, which were not apparent or reasonably foreseeable by a party, upon request of any party in the public hearing and at the discretion of the hearing officer the public hearing may be recessed for a period not to exceed five (5) working days . I . If, prior to making a final local siting decision, the City has negotiated and entered into a host agreement with the Applicant, the terms and conditions of the host agreement, whether oral or written, shall be disclosed and made a part of the hearingrecord for that local siting proceeding. In the case of an oral agreement, the disclosure shall be made in the form of a written summary jointly prepared and submitted by the City and the Applicant and shall describe the terms and conditions of the oral agreement . 9 . 33 . 080 PUBLIC COMMENT: A. The City Clerk shall receive written comment from any person concerning compliance with, and whether the proposed Pollution Control Facility satisfies the criteria in, Section 9 .33 .100 . Any written comment received by the City Clerk or postmarked not later than 30 days after the date of the last public hearing shall be made part of the record at the public hearing as hereinafter described and the City Council shall consider any such timely written comments in making its final determination concerning said request . If the 30th day after the date of the last public hearing falls on a day the City Clerk' s office is not open, all comments must be filed on the next day the City Clerk' s office is open for regularly scheduled business hours . Upon receipt,. the City Clerk shall date stamp and shall file such written comment and the postmarked envelope, if any, in which comment is received as part of the record in the siting proceeding. All such comments shall be available for public inspection at the office of the City Clerk during regular business hours. A copy of such comments or any part thereof shall be available from the City Clerk upon payment of the Actual Cost of Reproduction. The City Clerk shall fill such requests within a reasonable time. B. All public comment, oral or written, which is timely submitted, shall be considered by the City Council . Public comments may not be entitled to the same weight as testimony that is provided under oath and subject to cross-examination; while public comment shall be considered, it may be entitled to lesser weight . 14 9 .33 . 090 RECORD: A. The City Clerk shall be responsible for assembling and keeping the record of the public hearing. B. The record of the public hearing shall consist of the following: 1 . The Application, including proof ofnotice pursuant to 415 ILCS 5/39 .2 (b) , which shall be admitted as an exhibit at public hearing. 2 . Proof of all notices required by this Ordinance and the Act . 3 . Written comments filed by the public and received by the City Clerk or postmarked within 30 days of the last day of the public hearing. 4 . All reports, studies, exhibits or documents received into evidence at the public hearing. 5. The transcript of the public hearing. 6 . Proposed findings of fact and recommendations of the hearing officer and any person properly a party to the public hearing, and any objections thereto. 7. The Ordinance containing the final decision of the City Council on the Application. C. The City Clerk shall be responsible for certifying all copies of the record. of the public hearing as true and correct copies of the record maintained in the office of the City Clerk. 9 .33 . 100 DECISION ON SITING APPLICATION: A. After the close of the public hearing and after the time for submittal of any public comment has expired, at its next regularly scheduled meeting the City Council shall consider the Application. The City Council shall first determine whether the Application is complete and includes all of the information and documents required to satisfy this Ordinance and the Act . If the City Council determines that the Application is complete, the City Council shall evaluate the Application for compliance with, and shall determine whether the proposed Pollution Control Facility satisfies the criteria in, Section 9 . 33 . 100 . 15 • B. In making its decision on the Application, the City Council shall base its decision on the record and on whether the proposed Pollution Control Facility would be in compliance with, and whether the proposed Pollution Control Facility satisfies the following criteria : 1 . The proposed Pollution Control Facility is necessary to accommodate the waste needs of the area it is intended to serve; 2 . The proposed Pollution Control Facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; 3 : The proposed Pollution Control Facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property; 4 . (a) For a proposed Pollution Control Facility other than a sanitary landfill or waste disposal site, the proposed Pollution Control Facility is located outside the boundary of the 100 year floodplain, or the site is flood-proofed; (b) For a proposed Pollution Control Facility that is a sanitary landfill or waste disposal site, the proposed Pollution Control Facility is located outside the boundary of the 100-year floodplain, or if the proposed Pollution Control Facility is a facility described in subsection (b) of Section 22 . 19a, the site is flood-proofed; 5 . The plan of operations for the proposed Pollution Control Facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; 6 . The traffic patterns to or from the proposed Pollution Control Facility are so designed as to minimize the impact on existing traffic flows; 7. If the proposed Pollution Control Facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the proposed Pollution Control Facility which includes notification, containment and evacuation procedures to be used in case of an accidental release; 16 8 . The proposed Pollution Control Facility is consistent with the Solid Waste Management Plan adopted by the county in which the proposed site is located; and 9. If the proposed Pollution Control Facility will be located within a regulated recharge area, any and all applicable requirements specified by the IPCB for such area have been met . C. The City Council may consider as evidence the previous operating experienceand past record of convictions or admissions of violations of the Applicant (and any subsidiary and parent corporation) in the field of solid waste management when considering criteria B (2) and B (5) above. D. Pursuant to Section 39 .2 (a) of the Act, local siting approval shall be granted only if the proposed Pollution Control Facility meets the criteria cited above . E. The City Council shall make a final written decision within 180 days from the date of filing of a complete Application, specifying the reasons for the decision, which reasons shall be in conformance with Section 39.2 (a) of the Act . The City Council may conditionally approve of any Application provided such conditions are not inconsistent with regulations promulgated by the IPCB . Any determination and any findings of fact by the City Council shall be supported by the record. F. No written determination by the City Council of an Application may be reconsidered by the City Council . 9 . 33 . 110 FEES AND COSTS : A. All expenses incurred by the City in conducting the review of the Application; conducting the public hearing; deciding the issues related to the Application; and responding to any appeal thereof by a person other than the Applicant shall be paid by the Applicant, including the costs of any Consultants or hearing officer retained by the City in connection with the Application who are not also employees of the City, costs of court reporting and transcripts for the public hearing, and witness fees. B. The City shall periodically submit a detailed accounting and summary of all expenditures and requests for reimbursement to the Applicant for payment within forty-five (45) days . If the Applicant fails to reimburse such expenditures within ten (10) days after written notice of such failure to the Applicant, the City may deem the Application withdrawn and of no further 17 . 7 force or effect, and the City may discontinue any further consideration of such Application. 9 .33 . 120 WAIVER OF RULES : In order to insure fundamental fairness, compliance with the Act, and to protect the public interest, the City Council, by majority vote, may waive any of the requirements of this Ordinance, except that such waiver shall not be inconsistent or conflict with any provision of the Act or the regulations adopted thereunder. 9 .33 . 130 SEVERABILITY: If any section, subsection, sentence, clause, phrase or portion of this Ordinance, as amended, is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemeda separate, distinct and independent provision and such holding shall not affect the validity of the • remaining portions hereof . " Section 2 . That all ordinances or parts of ordinances in conflict with the provisions of this ordinance be and are hereby repealed. Section 3 . That this ordinance shall be in full force and effect ten days after itspassage and publication in the manner provided by law. s/ Ed Schock Ed Schock, Mayor Presented: September 24, 2003 Passed: September 24 , 2003 Vote : Yeas : 6 Nays : 0 Recorded: September 25, 2003 Published: September 26, 2003 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk 18 Resolution No. 04-153 RESOLUTION APPOINTING A HEARING OFFICER IN CONNECTION WITH THE MIDWEST COMPOST LLC APPLICATION REQUESTING SITING APPROVAL FOR A SOLID WASTE TRANSFER STATION AT 1320 SPAULDING ROAD, ELGIN, ILLINOIS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that pursuant to Elgin Municipal Code Section 9.33.050 that George Mueller is hereby appointed as the hearing officer to preside over the public hearing for the Midwest Compost LLC application requesting siting approval for a Solid Waste Transfer Station at 1320 Spaulding Road,Elgin,Illinois, and to perform such other functions and duties as set forth in the City of Elgin Pollution Control Facility Siting Ordinance and as provided by law. s/Ed Schock Ed Schock, Mayor Presented: June 9, 2004 Adopted: June 9, 2004 Vote: Yeas: 6 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk Resolution No. 04-154 RESOLUTION SCHEDULING A PUBLIC HEARING FOR THE MIDWEST COMPOST LLC APPLICATION REQUESTING SITING APPROVAL FOR A SOLID WASTE TRANSFER STATION AT 1320 SPAULDING ROAD, ELGIN, ILLINOIS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that the public hearing for the Midwest Compost LLC application requesting siting approval for a Solid Waste Transfer Station at 1320 Spaulding Road, Elgin, Illinois, be and is hereby scheduled to commence on Monday August 30, 2004, at 9:00 a.m., in the lower level of the Hemmens Cultural Center at 45 Symphony Way,Elgin,Illinois. Such public hearing shall be continued thereafter from time to time as determined by the hearing officer until the public hearing has been completed. s/Ed Schock Ed Schock, Mayor Presented: June 9, 2004 Adopted: June 9, 2004 Vote: Yeas: 6 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk ELLG/N MEMO To: William Cogley, Corporation Counsel From: Michael Falese, Fire Chief Subject: Spaulding Road Transfer Station Date: June 17, 2004 Attached to this document is a brief summary of our review of the report provided by Envirogen on the Spaulding Road transfer station. As I briefly discussed with you, there were a couple of items that I wanted to bring to your attention. The majority of the attached memo discusses items related to the Fire Department and were provided to me for my informational review. There are four (4) items that I would simply like to submit for your review and comment. 1. Section 2.4-14 Usage of the terminology"local Fire Protection District" instead of the "City of Elgin Fire Department". 2. Section 2.4-14 Reference to Elgin Fire Department personnel providing service to various operations, including identification and handling of unauthorized waste. This should be a responsibility of their contracted hazardous waste company. 3. Section 5-4 They list Sherman Hospital with an incorrect address. It should be 934 Center Street, Elgin, IL 60120. • 4. Section 5-5 The criteria for the sprinkler system design references the 1996 BOCA Fire Protection code. By the time the facility is constructed, it is likely the City and the Fire Department will have adopted the 2003 version of the International Fire Code. If the new codes are adopted by the time of construction, compliance would have to meet the updated code requirements. ` '�T City of Elgin Agenda Item No. C6 lesAINIIII: . 0 l'fbk4TCDfF% E t. : x`KL 1 di I _ . P D, October 22, 2004 G a Vii: „, ,, ,,n;.. : _ o0 I 13', - -7. r il idi di TO: Mayor and Members of the City Council H, -t - r ilf" FINANCIALLY STABLE CITY GOVERNMENT FROM: David M. Dorgan, City Manager V AND QUALIFE FICTY INFRAST SERVICES. William A. Cogley, Corporation Counsel SUBJECT: Proposed Amendments to the Host City Agreement with Waste Management of Illinois, Inc. Regarding a Proposed Solid Waste Transfer Station South of Bluff City Boulevard PURPOSE The purpose of this memorandum is to submit to the Mayor and members of the City Council information regarding proposed amendments to the city's Host City Agreement with Waste Management of Illinois, Inc. regarding a proposed solid waste transfer station south of Bluff City Boulevard. III RECOMMENDATION It is recommended that the Mayor and members of the City Council approve the proposed First Amendment to the Host City Agreement with Waste Management of Illinois, Inc. BACKGROUND On July 14, 2004, the City Councilapproved a Host City Agreement with Waste Management of Illinois, Inc. The Host City Agreement relates to a solid waste transfer station that Waste Management of Illinois is proposing for a location south of Bluff City Boulevard. A concept plan identifying the proposed site of this Waste Management Solid Waste Transfer Station is attached. The City Council will recall that the City of Elgin and Midwest Compost, LLC had also previously entered into a Host City Agreement regarding a solid waste transfer station proposed by Midwest Compost, LLC for the property at 1320 Spaulding Road, Elgin, Illinois. The public hearing on the Midwest Compost, LLC application was scheduled to begin on August 30, 2004. Prior to the formal commencement of such public hearing Midwest Compost, LLC, Waste Management of Illinois and the Village of Bartlett entered into a settlement agreement. A copy of the September 8, 2004, settlement agreement between these parties is attached. As part of the settlement, Midwest Compost, LLC has agreed to suspend any further proceedings with the City 0 of Elgin in connection with its proposed solid waste transfer station until the earlier of • Proposed Amendments to the Host City Agreement with Waste Management of Illinois, Inc. October 22, 2004 Page 2 September 1, 2005, or the date which Waste Management of Illinois receives a final and non- appealable approval of its proposed solid waste transfer station. In the event Waste Management of Illinois receives final approval for its proposed solid waste transfer station, Midwest Compost will withdraw with prejudice and not refile its siting application for its proposed facility at 1320 Spaulding Road. Waste Management of Illinois is now proposing to the City of Elgin several amendments to its Host City Agreement with the city. Attached is a redlined version of a proposed First Amended Host City Agreement between the city and Waste Management of Illinois. Proposed additions to the existing Host City Agreement are noted with highlighting and underlining and proposed deletions are noted in the right column. The amendments being proposed by Waste Management of Illinois to the existing Host City Agreement with the city may be summarized as follows: 1. Section 3 providing for definitions includes a new definition of."Unpermitted Waste". Waste Management of Illinois would agree not to accept any Unpermitted Waste at the proposed solid waste transfer station. Although the current Host City Agreement prohibits the acceptance of hazardous waste and potentially infected medical waste at the proposed solid waste transfer station, the new proposed definition of "Unpermitted Waste" is more comprehensive and specific. 2. Section 4 of the existing Host.City Agreement limits the volume of total waste at the • proposed solid waste transfer station to 1500 tons per day calculated on a rolling twelve (12) month average and an absolute maximum of 2000 tons of Total Waste in any single day. Waste Management is proposing to amend Section 4 to increase the 1500 average tons per day to 3000 average tons of Total Waste per day and to increase the maximum of any single day from 2000 tons to 4000 tons of Total Waste. Waste Management's rationale behind this proposed amendment is that instead of two facilities each with a limit of 1500 tons of Total Waste per day (i.e. the Midwest Compost facility and the Waste Management facility) there would be one facility with a 3000 ton per day limit. 3. A new Section 4(b) would be added to the agreement to provide an assignment from Waste Management of Illinois to the city of Waste Management's rights under the September 8, 2004 settlement agreement with the Village of Bartlett and Midwest Compost, LLC. In the event that Waste Management of Illinois' proposed solid waste transfer station is approved, such assignment would provide the city with a direct contractual remedy to insure that Midwest Compost, LLC would not proceed with its application for a second proposed solid waste transfer station at 1320 Spaulding Road. 4. Section 7 provides for permitted truck routes for trucks traveling to and leaving the proposed solid waste. transfer station. Section 7 would be revised to address traffic concerns of the Village of Bartlett and would provide for more specific routing of trucks traveling to and leaving the proposed transfer station. 110 r i Proposed Amendments to the Host City Agreement with Waste Management of Illinois, Inc. October 22, 2004 Page 3 • COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED A meeting was held with representatives of Waste Management of Illinois and Midwest Compost, LLC. ovii, FINANCIAL IMPACT Under the terms of the existing Host City Agreement with Waste Management of Illinois, if the proposed solid waste transfer station was established and remained operational the city could realize an annual revenue stream from the Host Benefit Fee of up to approximately $810,000 ($1.80 x 1500 = 2700 x 300 days = $810.00). In the event the city enters into the proposed First Amended Host City Agreement with Waste Management of Illinois, the city could realize an annual revenue stream from the Host Benefit Fee of up to approximately $1,620,000 ($1.80 x 3000 = 5400 x 300 days = $1,620,000). The potential increase in Host Benefit Fees under the First Amended Host City Agreement with Waste Management of Illinois would be offset by the loss of annual Host Benefit Fees in approximately the same amount of $810,000 in the event Midwest Compost, LLC does not proceed with the siting of a solid waste transfer station at 1320 Spaulding Road. Actual revenues may vary should fluctuation occur in the volume of waste received at the facility. Host fees are to be paid within ten (10) days of each calendar quarter. Due to the possible fluctuation fees, these revenues will be accounted for separately and • delineated as such during the annual budget process. LEGAL IMPACT n}YCII None. ALTERNATIVES • 1. Approve the proposed First Amended Host City Agreement. 2. Do not approve the proposed First Amended Host City Agreement. Respectfully submitted for Council consideration. WAC/nr Attachments • • ., _ �5d1a 'tit Y.%1,,----,_ ,.,.�... -.----7 ; o ..--5"._,_ ��F1: • t ', ▪ p�ie0 i -�\' } ' a: Y�.F. i q f r f Oda)5w_ >> b.--.':''.." t_t \ p.r• 1:!:, R 4 , '+(y9.-0F5 `� Y _ , ea A�x: a e � �;--- - ..‘'7-- 7 .4 �- ; IIA -1 =-, '�'d l*n ? - { V k l l e r 4 ti T - r t� , ■ N 's�* • -- z i .,,s-FETY LEAN ;11,.. A .. _.‘,.._.....-,4kL Iry 8 w • µ� 3 Z T �a J z/ S•S• f i i RETENTION POND i,.--. '---• �''�'' -� 1f�v f - �- a4 _ . .. _ - t • a vt r a.-iS.S- .z � q 7�-. � y,„ : "z- �` „.no., ) tae • a� _ O= I rG' 5 & � ;y.`t2,;,..t't s' 4.st r'ar" -•;' ART, INC. f Y c- 2 lt! ,t� K .• -rte.ki +Y' 6'`.' .',=^a' 1,•4 uj s I E; 42 ACRES II, ���. **-7*> • ..'y. F sem` '� 3 f...".•.' _ice z za. a�lvt- �r`w3' > -yI•, j -l''-!''.- •' ._ � i �= a- -fit`$ ', pI.z - O Few a w• ' ,Ire ..�L S�. ,,z . , 1 3-rr. x 6d • S- .3 ; -x ' � a ..-.r r._ 1.-t-`z-f -� lr'" O O >'� ',..ice£- .•..I: ✓a , ,x,i g iu-.,V,73-,--•_,..,-,•••• '_"a'. .--• ._ is z Sax' �' s^ "'�" -'i .4 'W �d E' ,,, z,,,,x i y:k� r.,.:` + ': .'..c'y'u-rw� Etr ,5- � n -i-`1 _ �i rs �` -`9F r, 7 F �...„----,.::_l•--!.. .-44-+ c,.,vn s �,-�'• 'c +wi -..-- ,,?U 'J e • -•• cam • 7 T�yK��s' l 51•- 'z x :W # tom COPART_EXPANSION"2 ` . -< ,Y-, i 'Q9i4RO10 • - : P a't'e A V- 'Z y_'y..,'•t 67,ACRES= ac 3 1 c s ", s r 't. ,y _ • • O WfrJ.1* � -� ,� ,ts,, v. • I T,, - •,. ___'''',"5--V54'-e"?. 'F?(,i TENTlA1 } P ?t3•+� -. �. (�',-s„£4i.. ."2.v .l. ..,;d-" t+_. • r „� --�, RAIL}�SPUR ,t�&.;`lt4 `�.bS 4.5. _ • �O 15 , 1,ti•t `'y-' :` f ...z� 'r: •-,• 4£"' ACCESS ROAD * Y� a ,' _ i yc-1. 'c a„., ,�POTENT/ s° 3 a-• 3 e t� s RETENTION PON 3T' �rs a - P t3 '` } h',-" --;•.",,-,,,,,,-,..V.3 ^ t RAIL-Sf ,04,,,,,,,_ 4 • t. a -..y s��-r��2�iA`����`�L � C �'�,, � •s,.-��.���c � 4�}� 4��a :T Y. � {�r�"` �.�- T�'� � Y �^ g f .y t -tirVili,- ,�' .,s•- . •i .. {.0-_-: Y. fF"F "" _ y,x. " ,,•r x V {. yr •iv -= r :°nom.til ,-;!-41-21.1_,,,,,:'.'-s--; x c ��$. c • 'f - •�' ,, -:i----:"=.,s,� ., t� ".....*"..4..-r...,. t`� �._. ' � s- --� y '\ �v rte's 5a �* . ,cam si_ { �.F...r zi _ 4- • - 1 ; ta:1_s m-.tr .x 't--x' -.-�.-1' -- 1 m ,we '�.h.>.r �i f ; a r .�- x �r"s -�r�*t s, r��-li �r�.Z}�''-`#` `• tea' '� `'- - `... r __ �• Y> y S gae. "1 t ; �fi 2 v+'•rk .re t F . f t.$ 3 .-4�`r a ' '-)r. *'`'- a y. £, yam` ,�� �` � 2 ,� r„ • k F,t • ..t^a- 1T.. _ ,• ,x qr�. akF w.5•� g- --�'.*-,''''''',-, :,-.4.'.'' ''''''''''''''.`" .--` "maces ,.E ,' -' a.'�'" t •-•,;_.,-,-,q;;;-;,-,:, : j_� r, a• + max• - =.- s FUTURE-COMMU E1I FATIONFJ ..,0'1%.* a%. t --+x � g • t /I. -F,� 3 -� x•7 ♦ 1 n _ A`''mas3A� � ,`$yvT t - "v• r • '• `• r y s ,..' . � x K "- z"k•-•-•:=-1_ • '� ` .. J } x ,.c ' z t `= �4 y7 � � • :• '�' . � , �4 ; �ti....-.cn >T „ h i ` � - � ,® ®' � " F � ...®® ,-® ® � y . ..c. •s �Er ' F - 4ry4®®®®®�n.OA ai S _ t I}rte" ' '� t' + �' l 41 _ vie • ®® ::' t 1111,=z1111- ®�®. ,ori'tT ,J e" '. ` r ABBOTT LAND • CONCEPT PLAN a0®® aii® 5..¢i.tr. Y m ...:7:141:-.-:i ,�„"ND °"1".E.rt . CITY OF ELGIN �v'war o.,�.�1 AM,z 5:. u. Coimbra! as W. (630)31'.p59:FAX 1!30131 059: 10/05/2004 17:24 FAX 830 916 6280 PASTE MANABEMENT igi vvc,vvo 1' BEM • RMENT AGREEMENT THIS AGREEMENT, dated as of this 9-7-x'day of September, 2004 by, between and among the VILLAGE OF BARTLETT, an Illinois municipal corporation (the 'Wage" or "Bartlett"), MIDWEST COMPOST, LLC, a Wisconsin limited liability company ('Midwest") and WASTE MANAGEMENT OF ILLINOIS, INC., a Delaware corporation ('Waste Management"). RECITALS WHEREAS, Midwest has filed with the City of Elgin ("Elgin') an application (the "Midwest Siting Application")to site a waste transfer station("Transfer Station"),pursuant to Section 39.2 of the Illinois Environmental Protection Act,415 ILCS 5139.2(the"Act"),and to Chapter 9.33 of the Elgin Municipal Code, on its property situated at 1320 Spaulding Road in Elgin, Illinois(the"Spaulding Road Site");and WHEREAS, Bartlett is opposed to the seting of Midwest's proposed Transfer Station on the Spaulding Road Site, has appeared as a participant in the hearings on the Midwest Siting Application so as to encourage the denial of same, and, if necessary, intends to • appeal any local decision that might be made to approve such Application;and WHEREAS,Waste Management has entered Into a Host City Agreement with Elgin (the'Waste Management/Elgin Host Agreement')and intends, in the relatively near future, to file an application (the 'waste Management Siting Application"),to site a transfer station (the'Waste Management Transfer Station")on certain property owned or controlled by the Abbott Land and Investment Corporation and located generally North of the Metra tracks and East of Bluff City Boulevard,in Elgin(the"Bluff City Boulevard Site);and WHEREAS, Midwest and Waste Management each contemplate thing objections to, and otherwise opposing the approval of,the siting application of the other,and WHEREAS, consultants retained by Bartlett have indicated that a Transfer Station. located on the Bluff City Boulevard Site would more greatly minimize the incompatibility of a transfer station with the character of the surrounding area; the effect on the value of the surrounding property; and the Impact on existing traffic flows, in accordance with §§39.2(axni)and(vi)of the Act;and I w.aw„r,eaAavr aaa�sa Fm.doc 1 • 10/05/2004 17:24 FAX 630 916 6280 , WASTE MANAGEMENT g1003/009 r WHEREAS, Bartlett has to date expended substantial public funds In the course of its opposition to the Midwest Siting Application, and will Incur substantial additional expenses In continuing said opposition;and WHEREAS, a resolution of all pending matters, including the concessions end agreements set forth below, will inure to the substantial benefit of Bartlett and its residents; and WHEREAS, Bartlett has not by this Agreement or any discussions relating hereto conceded that the proposed transfer station that is the subject of the Waste Management/Elgin Host Agreement,for which no siting application has yet been filed. does or would in fact meet the siting criteria set forth in§39.2 of the Act and WHEREAS, in.order to avoid the substantial costs and expenses that will inevitably be incurred by each of the parties in connection with the assertion and/or rebuttal of the above-described objedlons, the prosecution or defense of any appeals, and any other litigation that may arise between them concerning such Transfer Station siting applications, the undersigned parties deem It to be In their mutual and respective best interests to settle and resolve their differences and disputes as provided herein. NOW THEREFORE, for and in consideration of the mutual covenants contained • herein, and for other good and valuable consideration, the sufficiency of which is hereby mutually acknowledged.the parties hereto agree as follows: CONSIDERAT)ON AND AGREEMENT 1. Incorporation of _Recitals. The Recitals set forth above are hereby incorporated herein by reference. 2. Suspension end Withdrawal of the Midwest SftinaApplication. (a) Midwest agrees to withdraw or suspend any further proceedings with Elgin in connection with the Midwest Siting Application until the earlier of September 1, 2005 or the.date ("Final Action Date") as of which Waste Management receives a final and non-appealable approval ("Final Approval") or denial ("Final Denial')of the Waste Management Siting Application, or as of the date that Waste Management withdraws Its Siting Application. (b) If Waste Management receives a Final Approval of the Waste Management Siting Application on or before the Final Action Date and promptly commences operations of its Transfer Station, then Midwest agrees to withdraw with prejudice,and not to re file,the Midwest Siting __, ._..-.. .. _ a:..... ......:.: ......_....• 2 • 10/05/2004 17:24 FAX 630 916 6280 WASTE MANAGEMENT gi004/009 • • Application or any other such application contemplating or seeking approval for a solid waste transfer station, with respect to the • Spaulding Road Site. (c) If Waste Management receives a Final Denial of the Waste Management Siting Application, the Final Local Approval is not obtained before the Final Action Data or the Application is withdrawn before the Final Action Date,them (i) at the aloe of Midwest,ft shall have the right to.at its option, refits or reactivate and pursue the approval of the Midwest Siting Application as to the Spaulding Road Sae;and (ii) if Midwest takes the action described in subparagraph 2(c)(1) above, then this Agreement shall be terminated without any further action of the other parties and any agreements herein shall become null and void. (d) Until the Final Action Date, Midwest agrees that neither Midwest nor any of its principals or agents shall, directly or indirectly, object to, appeal the approval of, or otherwise oppose, the procurement by Waste Management of Final Approval of a Waste Management Siting Application with respect to the Bluff City Boulevard Site. • • (e) Midwest shall file with Elgin on or before September 30,2004 a waiver of the statutory provisions contained in section 302(e) of the Illinois Environmental Protection Act requiring that Elgin render s final decision with respect thereto within 180 days,end the Village shall join with Midwest in obtaining the City's agreement thereto. (f) Upon the commencement by Waste Management of operations at its Transfer Station,Midwest shall cause a covenant running with the land to be filed of record with respect to the Spaulding Road Site, preventing the use of said Site as a garbage transfer station or landfill for a period of fifteen (15) years from said commencement of operations. 3. B. artietM reements:Acknowledgement_ (a) Bartlett agrees that, during the termof this Agreement, it will not directly or indirectly object to, appeal the approval of, or otherwise oppose, the procurement by Waste Management of Final Approval of a Waste Management Siting Application with respect to the Bluff City Boulevard Site. (b) The parties hereto acknowledge that nothing herein shall prevent Bartlett from objecting to, opposing, or appealing the approval of any transfer station siting application with respect to 0)the Spaulding Road 1 ._. .. ...,. _.. _..,,........,......:..,._.,.., .,_� _...... .. 3 • M=MIIMMMW \MMMWM=4 Nmw 10/05/2004 17:24 FAX 630 916 6280 WASTE NANASENENT Q005/009 • . Site, (U) the Bluff City Boulevard Site (but only if this Agreement is terminated as provided in paragraph 2(c)above),or Oil)any other site whatsoever(other than the Bluff City Boulevard Site). 4. Waste Manaaement Transfer$tat(Qn Operations. (a) Permitted Wastes. Waste Management agrees that the Waste Management Transfer Station shall not receive, and Waste Management shall implement a waste acceptance plan that shall minimize to the maximum extent practicable the risk of receiving, the • following wastes: (i) Hazardous Wastes: (ii) Special Waste; Oil) Soils; (iv) Industrial Process Wastes(whether or note Special Waste); (v) Pollution Control Waste(whether or not a Special Waste): (vi) Sludge; (vii) Potentially Infectious Medical Waste; (viii) Poly-ctdortnated byphenyls; (or) Source,special or by-product nuclear materials; (x) Radioactive waste(both high and low level); (xi) Transurantic waste; (xli) Lead acid batteries;and • (x111) Liquid waste,Including bulk liquids. Waste Management shall cause any Unauthorized Waste to be removed from the Waste Management Transfer within twenty-four hours of discovery, Any modification, alteration or expansion of the types of wastes that may or may not be accepted at the Waste Management Transfer Station shall require, in addition to any other approvals or permits required by law,the express written approval of Bartlett. (b) Waw.teto Quantities. Waste Management represents that ft intends to seek initial approval to transfer up to three thousand (3000) tons per day of waste through the Waste Management Transfer Station. Without limiting any other provision hereof, It Is expressly agreed that any Increase in the size of the Initially permitted Waste Management Transfer Station beyond originally permitted dimensions, or any increase in daily tonnage throughput beyond the initial 3000 tons per day, shall require. in addition to any other approvals or permits required by law,the express written approval of Bartlett. (c) Traffic. Waste Management agrees that transfer traliefs traveling to and from the Waste Management Transfer Station will enter and exit from Route 20 to the North and will not travel on West Bartlett. Spaulding or Gifford Roads. Waste Management further agrees that • 10/05/2.004 17:25 FAX 630 916 6280 WASTE MANAGEMENT a006/009 • . waste collection vehicles owned, operated or controlled by Waste Management traveling to and from the Waste Management Transfer Station will also enter and exit from Route 20 to the North and will not travel on West Bartlett, Spaulding or Gifford Roads, unless they are collecting waste materials from customers on or in the vicinity of these traffic routes. In the event Waste. Management violates the above traffic restrictions more than three (3) times In any calendar year, Waste Management shall pay to the Village a penalty of$250 for each subsequent violation. The Village will notify Waste Management of all alleged violations, which notice shaft include the specific identification of the offending vehicle. gnforoernent. Except with respect to the traffic requirements set forth above for which a penalty payment system has been agreed to, the parties acknowledge that money damages would not be adequate to compensate Bartlett for the harm resulting from a violation by Waste Management of its obligations under this section 4. Therefore, In addition to any other relief to which Bartlett may be entitled, Bartlett shall be entitled to Injunctive relief to restrain any threatened or existing violation of the provisions of this section 4. S. Records uoon request. Upon Bartlett's request, Waste Management shall provide to the Village the right to review the following documents connected with the the Waste Management Transfer Station: • (a) Those submitted by Waste Management or its agents or consultants to any local, state or federal environmental, emergency response or employee health and safety regulatory agency unless a claim of business confidentiality has been asserted by Waste Management and approved by the relevant agency;: (b) Correspondence to or from any local, state or federal environmental, emergency response or employee health and safety regulatory agency:and (c) Those filed with or received from any person, including, but not limited to, any local, state or federal regulatory agency, asserting or relevant to charges,complaints or allegations of environmental violations made by any governmental authority,citizen or citizens'group. (d) Any communication from a regulatory agency concerning a spill or release of wastes at, on their way to or on their way from the Waste Management Transfer Station, and any response by Waste Management to such communication; (e) Any communication from a regulatory agency, citizen or citizen group complaining of or asserting a violation or apparen)t violation or employee safety and health or environmental laws or regulations, and any Waste Management response to such communication. 5 • 10/05/2004 17:25 FAX 630 916 6280 WASTE MANAGEMENT c uurluvu • • (f) Waste Management shall indemnify and hold Bartlett harmless, and defend against, from and against any and all third-party claims for personal injury or property damage arising or resulting from any alleged failure by Bartlett to take action with respect to purported violations by' Waste Management fo any federal, state, local or common law environmental, health or safety laws, regulations or provisions. 6. B inentgnidoal Refuse Rates, Waste Management agrees to accept Bartiett's Municipal refuse at the Waste Management Transfer Station at the lower of. (i)a ten percent(10%)discount from its standard gate price for municipal refuse;or(ii)the lowest per ton rate charged to any other municipality that directs its waste to the Waste Management Transfer Station. • 7. Waste Management agrees to reimburse the Village of Bartlett for all verifiable fees and expenses It has incurred in Its opposition to the pending Midwest Siting Application and a prior.application, which Bartlett has estimated to be approximately$215,000. Waste Management shall pay the amount due under this provision on the earliest of.7 days after Final Approval or November 1, 2006, together with interest from the date of this Agreement at four percent (4%) per annum. It is expressly understood that Waste Management's payment obligation shall be absolute and unconditional and shall not be subject to or conditioned upon • • receipt of siting approval for the Waste Management Transfer Station. 8. Miscellaneous. (a) This Agreement shall constitute, and may be offered in evidence as, a complete bar to the commencement or prosecution of any objection, action or proceeding brought by any party against the other in contradiction of the provisions hereof. (b) In the event of a refiling or reactivation by Midwest of its Siting Application, the parties hereto stipulate and agree that neither this Settlement Agreement, nor any discussions or negotiations in connection herewith, shall be offered or admitted In any hearing or proceeding with respect to said refiling or reactivation, nor shall the same in any way constitute the basis for a claim of violation of applicable principles of fundamental fairness. (c) This.Agreement relates to and concerns real estate located in Cook County, Illinois, shall be deemed to have been made and entered into in Cook County, Illinois, and shall be governed and construed in accordance with the laws of the State of Illinois. In the event of any dispute between the parties-arising out of or in connection with this Agreement or the breach Or enforcement hereof,the parties stipulate . and agree that venue shall properly lie exclusively in the Circuit Court. of Cook County, Illinois. The parties represent that they will neither ra2S2201E1EINIMICIdaMardlaftpi GiswedOccoundeddeftwastrkr s.+�.n+AcreenimSfiritif 6 • 1 10/05/2404 17:25 FAX 630 916 6280 WASTE MANAGEMENT Q4008/009 • ` . •• .. seek nor agree to any venue other than the Circuit Court of Cook County. (d) This Agreement is and shell be deemed and construed to be the joint and collective work product of the undersigned parties and, as such, this Agreement 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. (e) This Agreement shall be binding on the parties hereto and their respective successors and assigns. In the event Waste Management sells or conveys any interest they may have In the Waste Management Transfer Station,through asset sale or otherwise,this Agreement shall be incorporated into and become a part of any such contract of sale or conveyance. (f) This Agreement may be executed in multiple counterparts, all of which, together, shall constitute one and the same agreement Further, photocopies, facsimile transmissions and other reproductions of this Agreement and/or the signatures hereon shall be the equivalent of originals. • . IN WITNESS WHEREOF,the parties have executed this Agreement as of the dates following their respective signatures below: MIDWEST COMPOST,LLC WASTE MANAGEMENT OF ILLINOIS,INC. By:Ap 4 #./ / B . Lt•-wa At• Ligib hies , .'1"'XMen=! r / Its CA. "KS 1.46% - Dated thisday of September,2004 Dated this 1day of September,2004 THE VILLAGE OF BARTLETT, ILLINOIS By: \i/ t • L . .,_ Catherine J. Melchert Village President Attest • r ._.:..:...:......_:. ..........,�, 7 110 10/05/2004 17:25 FAX 630 916 6280 WASTE NANABEMENT g 009/009 • • • Air ,LA GPAS.t11,, 1►i., Linda Ganien • o Village Clerk .1:4 Dated this, day of September: - . • • • • • • • • • • • • • • 8 • r _