Loading...
Ordinance 2020-42 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO. 2020-42 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY,ILLINOIS APPROVING A SETTLEMENT AGREEMENT BY AND AMONG THE UNITED CITY OF YORKVILLE, ILLINOIS,GREEN ORGANICS, INC.,BRISTOL VENTURES,LLC AND MIDWEST MATERIALS MANAGEMENT,LLC Passed by the City Council of the United City of Yorkville,Kendall County, Illinois This 25'day of August,2020 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville,Kendall County,Illinois on August 28,2020. Ordinance No. 2020-42 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY,ILLINOIS APPROVING A SETTLEMENT AGREEMENT BY AND AMONG THE UNITED CITY OF YORKVILLE, ILLINOIS,GREEN ORGANICS, INC.,BRISTOL VENTURES,LLC AND MIDWEST MATERIALS MANAGEMENT,LLC WHEREAS, on September 9, 2004, the United City of Yorkville, Kendall County, Illinois (the "City") entered into an Amendment to a certain Annexation Agreement (the "First Amendment") with the owners of approximately 300 acres of land generally located south of Galena Road and west of Illinois Route 47 and known as the Westbury Village Subdivision ("Westbury"); and, WHEREAS, as of September 9, 2004, 14.62 acres of Westbury has been utilized by Green Organics, an Illinois corporation, as a composting facility for landscape waste and food waste which Green Organics, operated by Midwest Materials, LLC; and, WHEREAS, on March 11, 2014, Green Organics requested a reconfiguration of its operation to approximately 13.73 acres of land in the City of which 9.5 acres are located within the Westbury in order to add taller wind rows and increase the capacity of its operation and, as a result of this request, the City entered into a Second Amendment to the original Annexation Agreement; and, WHEREAS, the City and the owner have disputed the length of the term of the uses, permits and approvals as provided under the Second Amendment which dispute resulted in litigation; and, WHEREAS, the parties are now prepared to settle and dispose of all issues and claims asserted against each other as set forth in the Settlement Agreement attached hereto; and, Ordinance No.2020-42 Page 2 WHEREAS, the Mayor and City Council have reviewed the proposed Settlement Agreement and believe it to be in the best interests of the City to proceed with the settlement of this matter in accordance with the terms set forth in the Settlement Agreement. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the Settlement Agreement by and between the United City of Yorkville, Illinois, Green Organics, Inc., Bristol Ventures, LLC and Midwest Materials Management, LLC and in the form attached hereto and presented to this meeting is hereby approved and the Mayor is hereby authorized to execute said Agreement. Section 2. This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this 25ffi day of August,A.D. 2020. 1,0A CITY CLERK KEN KOCH AYE DAN TRANSIER AYE JACKIE MILSCHEWSKI AYE ARDEN JOE PLOCHER AYE CHRIS FUNKHOUSER AYE JOEL FRIEDERS AYE SEAVER TARULIS AYE JASON PETERSON AYE AP/,PROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois this a9- day of -A&(6 Us i , A.D. 2020. MAYOR Ordinance No.2020-42 Page 3 Attest: CITY CLERK Ordinance No.2020-42 Page 4 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made by and among the United City of Yorkville, Illinois (the "City"), Green Organics, Inc. (identified as "Green Organics" herein and as the "Composter" in the Second Amendment), Bristol Ventures, LLC (identified as "Bristol Ventures" herein and as the "New Owner" in the Second Amendment), and Midwest Materials Management, LLC ("Midwest") (collectively, the "Parties") on this 25 h day of August 2020 (the "Effective Date"). RECITALS A. WHEREAS, on September 9, 2004, the City entered into an Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the I "First Amendment") with all of the owners of approximately 300 acres of land generally located I south of Galena Road and west of Illinois Route 47 and known as the Westbury Village Subdivision("Westbury"). B. WHEREAS, as of the date of the First Amendment, 14.62 acres of Westbury was utilized by Green Organics, an Illinois corporation, as a composting facility for landscape waste and food waste which Green Organics,through Midwest, continues to use for said purposes as of the date hereof. C. WHEREAS, Bristol Ventures, the successor to the Estate of Henrietta Undesser, deceased, and the Estate of Richard J. Undesser, Sr., deceased (the "Prior Owners"), on behalf of Green Organics, approached the City with a proposal to eliminate 10.5 of the original 14.62 acres in the City and reconfigure its operation to approximately 13.73 acres of land in the City of which 9.5 acres are located within Westbury in order to add taller wind rows and increase the capacity of its operation. (00366990) Page 1 of 14 Initials: The CitTGreen Organics: Bristol Ventures: Midwest: I D. WHEREAS, as a result of that request, Bristol Ventures and the City entered into the Second Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the"Second Amendment")on March 11, 2014. E. WHEREAS, the Second Amendment amended the Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the "First Amendment"), pursuant to Section 32F of the First Amendment, to authorize the use of the aforementioned approximately nine and one-half(9.5) acres of land in Westbury as depicted on Exhibit attached to the Second Amendment(the "subject property") as a composting facility. F. WHEREAS, the Parties are now in dispute regarding the length of the term of the uses,permits and approvals allowed under the Second Amendment. G. WHEREAS, as a result of said dispute, Green Organics and Bristol Ventures initiated litigation in the Circuit Court for the Twenty-Third Judicial Circuit, Kendall County, Illinois, in the case entitled Green Organics, Inc. & Bristol Venture, LLC v. United City of Yorkville, Case No. 2019MR000027 (the "Lawsuits"). The Lawsuits involve and include the following: 1. Green Organics and Bristol Ventures filed their Complaint for Declaratory Judgment against the City seeking a declaratory judgment that Green Organics and Bristol Ventures were allowed to continue composting operations on the subject property; 2. The City filed an Answer and Affirmative Defense to Complaint for Declaratory Judgment and Counterclaim against Green Organics and Bristol Ventures seeking a declaratory judgment that the uses, permits and approvals allowed under the Second Amendment terminated on January 14, 2019 and seeking to enjoin Green Organics and Bristol Ventures from allowing Midwest to operate the composting facility on the subject property; and 3. The City filed a Third-Party Complaint for Injunctive Relief against Midwest seeking to enjoin Midwest from operating the composting facility on the subject property. (00366990) ge 2 of 14 Initials: The City Green Organics: Bristol Ventures: Midwest: H. WHEREAS, the Parties desire to settle and dispose of all of the claims that the Parties have against each other(excluding any potential claims stemming from or pursuant to the August 31, 2016 Agreement entered into between Green Organics and Midwest) and avoid the expense and inconvenience of litigation. AGREEMENT NOW THEREFORE, in consideration of the recitals, covenants, and terms contained in this Agreement, the Parties agree as follows: 1. The foregoing Recitals are incorporated into and made a part of this Agreement. 2. The Parties agree that the uses, permits and approvals allowed under the Second Amendment shall continue until March 4, 2023, subject to all of the same conditions and provisions set forth in the Second Amendment and as modified by the terms of this Agreement. 3. A temporary special use, as set forth under Section 2 of the Second Amendment, to continue operation of the compost facility will be permitted until March 4, 2023, (said temporary special use is subject to the modified Section 4(h)(i)-(vi) of the Second Amendment as set forth under Paragraph 8 of this Agreement). 4. The Parties acknowledge and agree that the March 4, 2023 termination date may be extended to a later date if and only if all of the Parties agree. Any such agreement must be in writing and signed by all of the Parties and will be subject to all of the same conditions and provisions set forth in this Agreement and in the Second Amendment. 5. The City approves Midwest as a New User of the subject property and the composting facility on the subject property. (003669901 ge 3 of 14 Initials: The City: Green Organics: Bristol Ventures: Midwest: 6. No expansion or reconfiguration of the composting operations located on the subject property is permitted during the term of the Second Amendment as modified by this Agreement, unless otherwise approved by the City. 7. Section 4(g) of the Second Amendment is null and void. 8. Section 4(h) of the Second Amendment is null and void, and replaced with the following modified Section 4(h)(i)-(vi): Section 4. 1...I h. Green Organics and Midwest must complete the full decommissioning and site restoration process in accordance with the closure plan and in accordance with Section 830.213 Standards for Compost Facilities of the IEPA (the "Closure Process"), no later than one (1) year after the agreed termination date or by March 4, 2024. i. On or before March 4, 2023, Green Organics and Midwest must submit to the City a written closure plan for the subject property in compliance with Section 830.213 Standards for Compost Facilities of the Illinois Environmental Protection Act("IEPA"). ii. Upon full completion of the Closure Process, Midwest shall issue to the City a "Certificate of Completion" consisting of an affidavit stating that the subject property has been fully decommissioned and restored in accordance with the closure plan and in accordance with Section 830.213 Standards for Compost Facilities of the IEPA. iii. Completion of the Closure Process will be subject to the United City of Yorkville's city engineer certification that decommissioning and site restoration has been fully completed in accordance with the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities. iv. Within seven (7) business days of receiving Midwest's Certificate of Completion, the City shall issue to Green Organics and Midwest either: 1. A written notice of the City's approval of Midwest's Certificate of Completion and confirmation that a city engineer has certified that the Closure Process has been fully completed in accordance with {00366990) age 4 of 14 Initials: The City• Green Organics: Bristol Ventures: Midwest: the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities; or 2. A written notice of the City's denial of Midwest's Certificate of Completion and of its findings suggesting that the subject property has not been fully decommissioned and restored in accordance with the closure plan and in accordance with IEPA Section 830.213 Standards for Compost Facilities, advising with specificity what requirements under the closure plan and/or IEPA Section 830.213 Standards for Compost Facilities the City is claiming were not fully met/completed. Any such written notice by the City shall be sent via email to: Joe Mazza President Green Organics, Inc. imazzaAmcminc.net and Veronica Berglund Partner Midwest Materials Management. LLC Veronica(? mwcomnanies.com v. In the event that the City issues to Green Organics and Midwest a written notice of its denial of Midwest's Certificate of Completion (pursuant to subparagraph 4(h)(iv)(2) above), Midwest will have fourteen (14) days from the date of receiving such written notice during which to complete, correct, remedy, or otherwise address the reportedly incomplete requirements indicated by the City and to respond to the City by submitting a revised Certificate of Completion in accordance with subparagraph 4(h)(ii) above. vi. The Parties acknowledge and agree that, pursuant to IEPA §830.604 and §830.605, Midwest previously established and continues to maintain a cash reserve account with Byline Bank containing financial assurance funds (hereinafter the"Byline Bank Account"). The Parties acknowledge and agree that, pursuant to IEPA §830.604 and §830.605, the financial assurance funds maintained in the Byline Bank Account must be used by Midwest to cover the cost of closure (decommissioning and site restoration), and that Midwest must maintain full funding in the Byline Bank Account (in an amount equal or greater 1003669901 5 of 14 Initials: The City: Green Organics: Bristol Ventures: Midwest: than the amount previously provided as a written cost estimate in the financial assurance plan) pending the expenditure of such funds to cover the costs of closure (decommissioning and site restoration). Furthermore, Midwest agrees and understands that, pursuant to IEPA §830.604, any financial assurance funds remaining in the Byline Bank Account after completion of full decommissioning and site restoration of the subject property cannot and will not be released to Midwest for unrestricted use until Midwest receives written notice from the City, in accordance with subparagraph 4(h)(iv)(1) above, approving Midwest's Certificate of Completion and confirming that a city engineer has certified that decommissioning and site restoration has been fully completed in accordance with the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities. Upon receiving such written notice from the City (pursuant to subparagraph 4(h)(iv)(1) above), any and all financial assurance funds remaining in the Byline Bank Account will be released to Midwest for unrestricted use (pursuant to IEPA §830.604(c)). The City agrees that it will not unnecessarily delay providing its written notice. 9. The City will timely investigate any and all complaints received by it regarding violations of any City Ordinance as they pertain to Green Organics and/or Midwest's operations that are located within the City of Yorkville. a. No later than two (2)business days after receiving any such complaint or upon the City's own investigation into any potential City Ordinance violation, the City will provide written notice of the complaint or City Ordinance violation to Green Organics and Midwest via email to: Joe Mazza President Green Organics, Inc. jmazza(&mcminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronicakmwcompanies.com (00366990) age 6 of 14 Initials: The City• Green Organics: Bristol Ventures: Midwest: b. In the event that any City Ordinance violation or any such complaint received by the City is related to odor, the City will investigate the complaint/potential City Ordinance violation and perform odor testing in the area/location within the City of Yorkville that the complaint/potential City Ordinance violation stems from as soon as practicable. For complaints received during the City's hours of operation (except for a complaint received during the last two hours before closing), the City will perform said odor testing on the date the complaint is made and as close to the time of the complaint as reasonably possible. For complaints received outside of the City's hours of operation (or less than two hours before closing), the City will perform said odor testing on the next business day. The method used by the City to perform any such odor testing will be by measuring and quantifying the odor in the ambient air in the area/location within the City of Yorkville that the complaint stems from using an ASTM certified portable odor detecting and measuring device known as a field olfactometer. i. No later than two (2) business days after performing any such odor testing,the City will send Green Organics and Midwest written notice of its findings including the following information: the date and time the complaint was made; the area/location within the City of Yorkville that the complaint stems from; the outdoor temperature, wind condition, and ambient air reading from an ASTM certified field olfactometer device measured in said area/location within the City on the date the complaint was made and as close to the time of the complaint as reasonably possible; and all such other information that is relevant to the complaint (00366990) P 7 of 14 Initials: The C• Green Organics: Bristol Ventures: Midwest: and the City's investigation of the same. Such written notice shall be sent via email to: Joe Mazza President Green Organics, Inc. jmazza ,mcminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronicagmwcompanies.com ii. In the event that the field olfactometer device measurement from any such odor testing exceeds that threshold set forth in the ASTM Standard of Practice E679-91, Green Organics and/or Midwest shall take steps to immediately correct the conditions that are causing the odor. Additionally, within five (5) business days of receiving written notice of the City's findings, Midwest shall send the City a written response, including a description of any steps taken by Green Organics and/or Midwest to correct the conditions complained of, via email to: Peter Ratos Building Code Official pratos r yorkville.il.us C. In the event that any City Ordinance violation or any such complaint received by the City is related to conditions other than odor, Green Organics and/or Midwest shall take steps to immediately correct any such conditions that are determined reasonably to be a violation of the City's ordinances; 100366990) e 8 of 14 Initials: The City Green Organics: Bristol Ventures: Midwest: i. Within seven (7) days of receiving any such complaint/potential City Ordinance violation, Midwest shall send the City a written response, including a description of any steps taken by Green Organics and/or Midwest to correct the conditions complained of, via email to: Peter Ratos Building Code Official pratoskyorkville.il.us 10. Green Organics agrees to pay to the City an annual fee for tipping in the amount of twenty-five cents ($0.25) per ton of composting material received at the composting facility. All fees due to the City shall be paid by Green Organics to the City on or before January 31 st of each year for the prior calendar year. Green Organics shall submit documentation of the annual amount of composting material received at the composting facility with the payment. Failure by Green Organics to pay any amounts due under this paragraph when due shall cause interest at 1.5%per month to be paid by Green Organics. a. Any and all amounts due to the City pursuant to Paragraph 10, including any potential interest, shall be borne by and remain the sole responsibility of Green Organics. These costs will not be passed on to Midwest in any way or form. b. Midwest is required to cooperate with Green Organics and the City to provide documentation showing only the total annual amount of composting material received at the composting facility to the extent such information is in the exclusive control of Midwest. 11. Any and all complaints received by the City regarding violations of any Kendall County ordinance as they pertain to Green Organics and/or Midwest's operations that are located within Kendall County shall be forwarded to Kendall County and to Green Organics and (00366990) age 9 of 14 Initials: The City Green Organics: Bristol Ventures: Midwest: Midwest in writing. No later than two (2) business days after receiving any such complaint, the City will provide written notice of the complaint received by it to Green Organics and Midwest via email to: Joe Mazza President Green Organics, Inc. jmazza&mcminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronica@mwcompanies.com 12. Within fourteen (14) days after the execution of this Agreement by all Parties, counsel for the Parties shall execute a joint stipulation of dismissal of the Lawsuits with prejudice and without costs. The fully executed stipulation shall be filed with the Court and the Parties shall submit to the Court at the earliest practicable time a dismissal order based on the stipulation, which shall contain a provision that to the extent permitted by law, the Court shall retain jurisdiction to enforce this Agreement. 13. The Parties agree that each of the Parties shall bear its own costs, attorneys' fees and other expenses incurred in connection with the Lawsuits and the negotiation and preparation of this Agreement. However, nothing in this Agreement, and specifically in this Paragraph 13, shall be interpreted or construed as a waiver of any potential claims stemming from or pursuant to the August 31, 2016 Agreement entered into between Green Organics and Midwest. 14. Should any of the Parties, after the Agreement is deemed to be fully executed pursuant to Paragraph 19 below, institute further legal proceedings, or employ an attorney to institute further legal proceedings, in any way related to this Agreement and/or seeking to 100366990) ge 10 of 14 Initials: The Ci Green Organics: Bristol Ventures: Midwest: enforce any of the provisions in this Agreement, or to protect its interest in any matter arising under this Agreement, or seeking to collect damages for any breach of this Agreement, or to cause any party to complete, correct, remedy, or otherwise address the reportedly incomplete requirements, in order to fully complete the Closure Process in accordance with the closure plan and in accordance with IEPA Section 830.213 Standards for Compost Facilities, modified Section 4(h)(i)-(vi) of the Second Amendment as set forth under Paragraph 8 of this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses incurred therein, including such party's reasonable attorneys' fees and expenses. "Prevailing party" shall mean a party that is successful on any significant issue in the action and achieves some benefit in bringing suit, when it receives a judgment or court order in its favor, or when it achieves an affirmative recovery. A Prevailing party need not win on all claims. 15. This Agreement, including any other writings incorporated by reference herein, contains the entire understandings and agreements of the Parties with respect to the subject matter hereof. All oral or written agreements between the Parties prior to the Effective Date of this Agreement and which relate to this Agreement and the matters set forth herein are declared null and void, except for any and all agreements, documents, leases, and other writings incorporated by reference herein. Specifically, the August 31, 2016 Agreement entered into between Green Organics and Midwest is incorporated by reference herein and, as such, is still valid and binding. 16. Any modification and/or amendment to this Agreement shall be made in writing and executed by all Parties. 17. This Agreement is the compromise of disputed claims and is intended to amicably resolve disputes and to avoid extensive and uncertain litigation. Nothing contained in this (00366990) 1 of 14 Initials: The Ci Green Organics: Bristol Ventures: Midwest: Agreement shall be interpreted or construed to be an admission on the part of, or to the prejudice of, any person or party named herein. 18. It is understood and agreed by the Parties that this Agreement shall be construed without regard to any presumption or other rule requiring construction or interpretation against the drafting party. 19. This Agreement may be executed in counterparts, each of which shall be deemed to be an original as against any Parties whose signatures appear thereon, and all of which together shall constitute one and the same Agreement. The Agreement shall be deemed to be fully executed when one or more counterparts, individually or taken together, shall bear the signatures of each of the persons reflected as signatories. Signatures that are photocopied, scanned, emailed, faxed, or otherwise electronically reproduced or transmitted shall be deemed to be originals. 20. The Parties agree that no third party shall have any rights under this Agreement. 21. Each of the Parties represents and warrants that it has full, complete, and valid authority to execute this Agreement, to settle and release all claims covered by this Agreement, and to effect any and all actions contemplated in this Agreement. The signatories to this Agreement further represent that they have the necessary authority to bind their respective Parties. 22. If any provision in this Agreement is adjudicated invalid or unenforceable by a judicial body of competent jurisdiction, but said judicial body determines that such provision would be valid and enforceable if its scope was limited, then the Parties hereby authorize and direct such judicial body to limit the scope of such provision in the minimum amount it deems necessary to make such provision valid and enforceable to the fullest extent permissible under (003669901 12 of 14 Initials: The Cit� f Green Organics: Bristol Ventures: Midwest: the laws and public policies of that jurisdiction. If any provision of this Agreement is adjudicated invalid or unenforceable by a judicial body of competent jurisdiction, and the judicial body making such determination, also, determines that it could not be made valid and enforceable by a limitation thereon, then such provision shall be deleted, and all other provisions of this Agreement shall, in all other respects, remain unmodified and continue in full force and effect, and their validity shall not be affected, provided that the remaining parts, terms, and provisions of the Agreement can be construed in substance to constitute the agreement the Parties intended to enter. This provision shall not preclude a court of competent jurisdiction from refusing to sever any provision if severance would be inequitable. 23. This Agreement shall be governed by the law of the state of Illinois. 24. This Agreement may not be assigned by any party without the advance written consent of the other Parties. Any assignment in violation of this provision shall be void. 25. This Agreement is subject to and conditioned upon approval by the Yorkville City Council. Remainder of Page Intentionally Left Blank;Signature Page Follows (00366990) P e 13 of 14 Initials: The� Green Organics: Bristol Ventures: Midwest: IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date appearing hereafter. UNITED CITY OF YORKVILLE BRISTOL VENTURES, LLC '-�4By: By: Its: Mayor Its: Print name: J 0 N 14 PUR C E L L Print name: Dated: $La$Id0-M Dated: GREEN ORGANICS, INC. MIDWEST MATERIALS MANAGEMENT, LLC By: By: Its: Its: Print name: Print name: Dated: Dated: (00366990) P ge 14 of 14 Initials: The Cit} Green Organics: Bristol Ventures: Midwest: SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made by and among the United City of Yorkville, Illinois (the "City"), Green Organics, Inc. (identified as "Green Organics" herein and as the "Composter" in the Second Amendment), Bristol Ventures, LLC (identified as `Bristol Ventures" herein and as the "New Owner" in the Second Amendment), and Midwest Materials Management, LLC ("Midwest") (collectively, the "Parties") on this 25th day of August 2020 (the "Effective Date"). RECITALS i A. WHEREAS, on September 9, 2004, the City entered into an Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the "First Amendment") with all of the owners of approximately 300 acres of land generally located south of Galena Road and west of Illinois Route 47 and known as the Westbury Village Subdivision("Westbury"). B. WHEREAS, as of the date of the First Amendment, 14.62 acres of Westbury was utilized by Green Organics, an Illinois corporation, as a composting facility for landscape waste and food waste which Green Organics, through Midwest, continues to use for said purposes as of the date hereof. C. WHEREAS, Bristol Ventures, the successor to the Estate of Henrietta Undesser, deceased, and the Estate of Richard J. Undesser, Sr., deceased (the "Prior Owners"),on behalf of I Green Organics,approached the City with a proposal to eliminate 10.5 of the original 14.62 acres in the City and reconfigure its operation to approximately 13.73 acres of land in the City of which i 9.5 acres are located within Westbury in order to add taller wind rows and increase the capacity of its operation. (00366990) Page 1 of 14 Initials: The City: Green Organics: i Bristol Ventures: Midwest: d D. WHEREAS, as a result of that request, Bristol Ventures and the City entered into the Second Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the `Second Amendment")on March 11, 2014. E. WHEREAS, the Second Amendment amended the Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the "First Amendment"), pursuant to Section 32F of the First Amendment, to authorize the use of the aforementioned approximately nine and one-half(9.5) acres of land in Westbury as depicted on Exhibit A attached to the Second Amendment(the"subject property")as a composting facility. F. WHEREAS, the Parties are now in dispute regarding the length of the term of the uses,permits and approvals allowed under the Second Amendment. i G. WHEREAS, as a result of said dispute, Green Organics and Bristol Ventures initiated litigation in the Circuit Court for the Twenty-Third Judicial Circuit, Kendall County, Illinois, in the case entitled Green Organics, Inc. & Bristol Venture., LLC v. United City of Yorkville, Case No. 2019MR000027 (the "Lawsuits'). The Lawsuits involve and include the following: I. Green Organics and Bristol Ventures filed their Complaint for Declaratory Judgment against the City seeking a declaratory judgment that Green Organics and Bristol Ventures were allowed to continue composting operations on the subject property; 2. The City filed an Answer and Affirmative Defense to Complaint for Declaratory Judgment and Counterclaim against Green Organics and Bristol Ventures seeking a declaratory judgment that the uses, permits and approvals allowed under the Second Amendment terminated on January 14, 2019 and seeking to enjoin Green Organics and Bristol Ventures from allowing Midwest to operate the composting facility on the subject property;and 3. The City filed a Third-Party Complaint for Injunctive Relief against Midwest seeking to enjoin Midwest from operating the composting facility on the subject property. (00366990) Page 2 of 14 Initials: The City: Green Organics: Bristol Ventures: Midwest: H. WHEREAS, the Parties desire to settle and dispose of all of the claims that the Parties have against each other(excluding any potential claims stemming from or pursuant to the August 31, 2016 Agreement entered into between Green Organics and Midwest) and avoid the expense and inconvenience of litigation. AGREEMENT NOW THEREFORE, in consideration of the recitals, covenants, and terms contained in this Agreement, the Parties agree as follows: 1. The foregoing Recitals are incorporated into and made a part of this Agreement. 2. The Parties agree that the uses, permits and approvals allowed under the Second Amendment shall continue until March 4, 2023, subject to all of the same conditions and provisions set forth in the Second Amendment and as modified by the terms of this Agreement. i 3. A temporary special use,as set forth under Section 2 of the Second Amendment,to continue operation of the compost facility will be permitted until March 4, 2023, (said temporary special use is subject to the modified Section 4(h)(i)-(vi) of the Second Amendment as set forth under Paragraph 8 of this Agreement). 4. The Parties acknowledge and agree that the March 4, 2023 termination date may be extended to a later date if and only if all of the Parties agree. Any such agreement must be in writing and signed by all of the Parties and will be subject to all of the same conditions and provisions set forth in this Agreement and in the Second Amendment. 5. The City approves Midwest as a New User of the subject property and the composting facility on the subject property. 1003669901 Page 3 of 14 j I Initials: The City: Green Organics:_ !! Bristol Ventures: Midwest: 6. No expansion or reconfiguration of the composting operations located on the subject property is permitted during the term of the Second Amendment as modified by this Agreement, unless otherwise approved by the City. 7. Section 4(g) of the Second Amendment is null and void. 8. Section 4(h) of the Second Amendment is null and void, and replaced with the following modified Section 4(h)(i)-(vi): Section 4. h. Green Organics and Midwest must complete the full decommissioning and site restoration process in accordance with the closure plan and in accordance with Section 830.213 Standards for Compost Facilities of the IEPA (the "Closure Process"), no later than one (1) year after the agreed termination date or by March 4,2024. i. On or before March 4, 2023, Green Organics and Midwest must submit to the City a written closure plan for the subject property in compliance with Section 830.213 Standards for Compost Facilities of the Illinois Environmental Protection Act("IEPA"). ii. Upon full completion of the Closure Process,Midwest shall issue to the City a "Certificate of Completion" consisting of an affidavit stating that the subject property has been fully decommissioned and restored in accordance with the closure plan and in accordance with Section 830.213 Standards for Compost Facilities of the IEPA. iii. Completion of the Closure Process will be subject to the United City of Yorkville's city engineer certification that decommissioning and site restoration has been fully completed in accordance with the closure plan and in compliance with IEPA Section 830,213 Standards for Compost Facilities. iv. Within seven (7) business days of receiving Midwest's Certificate of Completion,the City shall issue to Green Organics and Midwest either: 1. A written notice of the City's approval of Midwest's Certificate of Completion and confirmation that a city engineer has certified that the Closure Process has been fully completed in accordance with the {00366990} Page 4 of 14 Initials: The City: Green Organics: Bristol Ventures: Midwest: i closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities; or 2. A written notice of the City's denial of Midwest's Certificate of Completion and of its findings suggesting that the subject property has not been fully decommissioned and restored in accordance with the closure plan and in accordance with IEPA Section 830.213 Standards for Compost Facilities, advising with specificity what requirements under the closure plan and/or IEPA Section 830.213 Standards for Compost Facilities the City is claiming were not fully met/completed. Any such written notice by the City shall be sent via email to: Joe Mazza President Green Organics, Inc. jmazza@mcmine.net and Veronica Berglund Partner Midwest Materials Management. LLC veronica@,Mwcompanies.com v. In the event that the City issues to Green Organics and Midwest a written notice of its denial of Midwest's Certificate of Completion (pursuant to subparagraph 4(h)(iv)(2) above), Midwest will have fourteen (14) days from the date of receiving such written notice during which to complete, correct, remedy, or otherwise address the reportedly incomplete requirements indicated by the City and to respond to the City by submitting a revised Certificate of Completion in accordance with subparagraph 4(h)(ii)above. vi. The Parties acknowledge and agree that, pursuant to IEPA §830.604 and §830.605,Midwest previously established and continues to maintain a cash reserve account with Byline Bank containing financial assurance funds (hereinafter the"Byline Bank Account"). The Parties acknowledge and agree that, pursuant to IEPA §830.604 and §830.605, the financial assurance funds maintained in the Byline Bank Account must be used by Midwest to cover the cost of closure (decommissioning and site restoration), and that Midwest must maintain full funding in the Byline Bank Account(in an amount equal or greater than (00366990) Page 5 of 14 Initials: The City:-- Green Organics:_/I zln Bristol Ventures: Midwest: the amount previously provided as a written cost estimate in the financial assurance plan)pending the expenditure of such funds to cover the costs of closure(decommissioning and site restoration). Furthermore, Midwest agrees and understands that, pursuant to IEPA §830.604, any financial assurance funds remaining in the Byline Bank Account after completion of full decommissioning and site restoration of the subject property, cannot and will not be released to Midwest for unrestricted use until Midwest receives written notice from the City, in accordance with subparagraph 4(h)(iv)(1) above, approving Midwest's Certificate of Completion and confirming that a city engineer has certified that decommissioning and site restoration has been fully completed in accordance with the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities. Upon receiving such written notice from the City (pursuant to subparagraph 4(h)(iv)(1) above),any and all financial assurance funds remaining in the Byline Bank Account will be released to Midwest for unrestricted use (pursuant to IEPA §830.604(c)). The City agrees that it will not unnecessarily delay providing its written notice. 9. The City will timely investigate any and all complaints received by it regarding violations of any City Ordinance as they pertain to Green Organics and/or Midwest's operations that are located within the City of Yorkville. a. No later than two(2) business days after receiving any such complaint or upon the City's own investigation into any potential City Ordinance violation, the City will provide written notice of the complaint or City Ordinance violation to Green Organics and Midwest via email to: Joe Mazza President Green Organics,Inc. 'mazza cminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronicg@Mwcompanies.com 100366990) Page 6 of 14 Initials: The City: Green Organics: I Bristol Ventures: Midwest: b. In the event that any City Ordinance violation or any such complaint received by the City is related to odor, the City will investigate the complaint/potential City Ordinance violation and perform odor testing in the area/location within the City of Yorkville that the complaint/potential City Ordinance violation stems from as soon as practicable. For complaints received during the City's hours of operation(except for a complaint received during the last two hours before closing), the City will perform said odor testing on the date the complaint is made and as close to the time of the complaint as reasonably possible. For complaints received outside of the City's hours of operation (or less than two hours before closing), the City will perform said odor testing on the next business day. The method used by the City to perform any such odor testing will be by measuring and quantifying the odor in the ambient air in the area/location within the City of Yorkville that the complaint stems from using an ASTM certified portable odor detecting and measuring device known as a field olfactometer. i. No later than two(2)business days after performing any such odor testing, the City will send Green Organics and Midwest written notice of its findings including the following information: the date and time the complaint was made; the area/Iocation within the City of Yorkville that the complaint stems from; the outdoor temperature, wind condition. and ambient air reading from an ASTM certified field olfactometer device measured in said area/location within the City on the date the complaint was made and as close to the time of the complaint as reasonably possible; and all such other information that is relevant to the complaint and the (00366990) Page 7 of 14 Initials: I The City: Green Organics: l� Bristol Ventures: Midwest: City's investigation of the same. Such written notice shall be sent via email to: Joe Mazza President Green Organics, Inc. Lmazza@mcmine.net and Veronica Berglund Partner Midwest Materials Management. LLC veronica wcom anies.com ii. In the event that the field olfactometer device measurement from any such I odor testing exceeds that threshold set forth in the ASTM Standard of Practice E679-91, Green Organics and/or Midwest shall take steps to immediately correct the conditions that are causing the odor.Additionally, within five (5) business days of receiving written notice of the City's findings, Midwest shall send the City a written response, including a description of any steps taken by Green Organics and/or Midwest to correct the conditions complained of, via email to: Peter Ratos Building Code Official priltoSi(L'Voj-ky1l1C.il us C. In the event that any City Ordinance violation or any such complaint received by the City is related to conditions other than odor, Green Organics and/or Midwest shall take steps to immediately correct any such conditions that are determined reasonably to be a violation of the City's ordinances; (00366990) Page 8 of 14 �; initials: The City: Green Organics Bristol ventures: Midwest: i. Within seven (7) days of receiving any such complaint/potential City Ordinance violation, Midwest shall send the City a written response, including a description of any steps taken by Green Organics and/or Midwest to correct the conditions complained of, via email to: Peter Ratos Building Code Official Plato s"ci!vorkviIIe.i!u5 10. Green Organics agrees to pay to the City an annual fee for tipping in the amount of twenty-five cents ($0.25) per ton of composting material received at the composting facility. All fees due to the City shall be paid by Green Organics to the City on or before January 31 st of each year for the prior calendar year. Green Organics shall submit documentation of the annual amount of composting material received at the composting facility with the payment. Failure by Green Organics to pay any amounts due under this paragraph when due shall cause interest at 1.5%per month to be paid by Green Organics. a. Any and all amounts due to the City pursuant to Paragraph 10, including any potential interest, shall be borne by and remain the sole responsibility of Green Organics.These costs will not be passed on to Midwest in any way or form. b. Midwest is required to cooperate with Green Organics and the City to provide documentation showing only the total annual amount of composting material received at the composting facility to the extent such information is in the exclusive control of Midwest. 11. Any and all complaints received by the City regarding violations of any Kendall County ordinance as they pertain to Green Organics and/or Midwest's operations that are located within Kendall County shall be forwarded to Kendall County and to Green Organics and Midwest (D03669901 Page 9 of 14 Initials: The City: Green Organics:(;&X—z— Bristol Ventures: Midwest: in writing. No later than two (2) business days after receiving any such complaint, the City will provide written notice of the complaint received by it to Green Organics and Midwest via email to: Joe Mazza President Green Organics,Inc. lmgZ-M�cminc net and Veronica Berglund Partner Midwest Materials Management. LLC veronicana mwcompanies com 12. Within fourteen (14) days after the execution of this Agreement by all Parties, counsel for the Parties shall execute a joint stipulation of dismissal of the Lawsuits with prejudice and without costs. The fully executed stipulation shall be filed with the Court and the Parties shall submit to the Court at the earliest practicable time a dismissal order based on the stipulation,which shall contain a provision that to the extent permitted by law, the Court shall retain jurisdiction to enforce this Agreement. 13. The Parties agree that each of the Parties shall bear its own costs, attorneys' fees and other expenses incurred in connection with the Lawsuits and the negotiation and preparation of this Agreement. However, nothing in this Agreement, and specifically in this Paragraph 13, shall be interpreted or construed as a waiver of any potential claims stemming from or pursuant to the August 31, 2016 Agreement entered into between Green Organics and Midwest. 14. Should any of the Parties, after the Agreement is deemed to be fully executed pursuant to Paragraph 19 below, institute further legal proceedings, or employ an attorney to institute further legal proceedings,in any way related to this Agreement and/or seeking to enforce (00366990) Page 10 of 14 Initials: The City; Green Organics: 017) Bristol ventures: Midwest: any of the provisions in this Agreement, or to protect its interest in any matter arising under this Agreement, or seeking to collect damages for any breach of this Agreement, or to cause any party to complete, correct, remedy, or otherwise address the reportedly incomplete requirements, in order to fully complete the Closure Process in accordance with the closure plan and in accordance with IEPA Section 830.213 Standards for Compost Facilities, modified Section 4(h)(i)-(vi)of the Second Amendment as set forth under Paragraph 8 of this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses incurred therein, including such parry's reasonable attorneys' fees and expenses. "Prevailing party" shall mean a party that is successful on any significant issue in the action and achieves some benefit in bringing suit,when it receives a judgment or court order in its favor, or when it achieves an affirmative recovery. A Prevailing party need not win on all claims. 15. This Agreement, including any other writings incorporated by reference herein, contains the entire understandings and agreements of the Parties with respect to the subject matter hereof. All oral or written agreements between the Parties prior to the Effective Date of this Agreement and which relate to this Agreement and the matters set forth herein are declared null and void, except for any and all agreements, documents, leases, and other writings incorporated by reference herein. Specifically, the August 31, 2016 Agreement entered into between Green Organics and Midwest is incorporated by reference herein and, as such, is still valid and binding. 16. Any modification and/or amendment to this Agreement shall be made in writing and executed by all Parties. 17. This Agreement is the compromise of disputed claims and is intended to amicably resolve disputes and to avoid extensive and uncertain litigation. Nothing contained in this {QQ366990) Page 11 of 14 Initials: The City: Green Organics:\Ar) Bristol Ventures: Midwest: Agreement shall be interpreted or construed to be an admission on the part of, or to the prejudice of,any person or party named herein. 18. It is understood and agreed by the Parties that this Agreement shall be construed without regard to any presumption or other rule requiring construction or interpretation against the drafting party. 19. This Agreement may be executed in counterparts, each of which shall be deemed to be an original as against any Parties whose signatures appear thereon, and all of which together shall constitute one and the same Agreement. The Agreement shall be deemed to be fully executed when one or more counterparts, individually or taken together,shall bear the signatures of each of the persons reflected as signatories. Signatures that are photocopied, scanned, emailed, faxed, or otherwise electronically reproduced or transmitted shall be deemed to be originals. 20. The Parties agree that no third party shall have any rights under this Agreement. 21. Each of the Parties represents and warrants that it has full, complete, and valid authority to execute this Agreement, to settle and release all claims covered by this Agreement, and to effect any and all actions contemplated in this Agreement.The signatories to this Agreement further represent that they have the necessary authority to bind their respective Parties. 22. If any provision in this Agreement is adjudicated invalid or unenforceable by a judicial body of competent jurisdiction, but said judicial body determines that such provision would be valid and enforceable if its scope was limited,then the Parties hereby authorize and direct such judicial body to limit the scope of such provision in the minimum amount it deems necessary to make such provision valid and enforceable to the fullest extent permissible under the laws and public policies of that jurisdiction. If any provision of this Agreement is adjudicated invalid or unenforceable by a judicial body of competent jurisdiction, and the judicial body making such (00366990) Page 12 of 14 Initials: The City: Green Organics:trBristol Ventures: Midwest: determination, also, determines that it could not be made valid and enforceable by a limitation thereon, then such provision shall be deleted, and all other provisions of this Agreement shall, in all other respects, remain unmodified and continue in full force and effect, and their validity shall not be affected,provided that the remaining parts,terms, and provisions of the Agreement can be construed in substance to constitute the agreement the Parties intended to enter. This provision shall not preclude a court of competent jurisdiction from refusing to sever any provision if severance would be inequitable. 23. This Agreement shall be governed by the law of the state of Illinois. 24. This Agreement may not be assigned by any party without the advance written consent of the other Parties. Any assignment in violation of this provision shall be void. 25. This Agreement is subject to and conditioned upon approval by the Yorkville City Council. Remainder of Page Intentionally Left Blank;Signature Page Follows (00366990) Page 13 of 14 Initials: The City: Green Organics: (�f/ 7 Bristol Ventures:_ _ Midwest: IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date appearing hereafter. UNITED CITY OF YORKVILLE BRISTOL VENTURES,LLC By: By: Its: Mayor Its: Print name: Print name: Dated: Dated: I GREEN ORGANICS, INC. MIDWEST MATERIALS MANAGEMENT,LLC By: v By. - Its: 0 Its: Print name: .J v,>j�r4 Print name: Dated: _ I� 3vz : _ Dated: i i (00366990) Page 14 of 14 Initials: The City: Green Organics: Bristol Ventures:._. Midwest: SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement') is made by and among the United City of Yorkville, Illinois (the "City"), Green Organics, Inc. (identified as "Green Organics" herein and as the "Composter" in the Second Amendment), Bristol Ventures, LLC (identified as "Bristol Ventures" herein and as the "New Owner" in the Second Amendment), and Midwest Materials Management, LLC ("Midwest") (collectively, the "Parties")on this 25th day of August 2020(the "Effective Date"). RECITALS A. WHEREAS, on September 9, 2004, the City entered into an Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the "First Amendment") with all of the owners of approximately 300 acres of land generally located south of Galena Road and west of Illinois Route 47 and known as the Westbury Village Subdivision("Westbury"). B. WHEREAS, as of the date of the First Amendment, 14.62 acres of Westbury was utilized by Green Organics, an Illinois corporation, as a composting facility for landscape waste and food waste which Green Organics,through Midwest, continues to use for said purposes as of the date hereof. C. WHEREAS, Bristol Ventures, the successor to the Estate of Henrietta Undesser, deceased, and the Estate of Richard J. Undesser, Sr., deceased(the"Prior Owners"), on behalf of Green Organics, approached the City with a proposal to eliminate 10.5 of the original 14.62 acres in the City and reconfigure its operation to approximately 13.73 acres of land in the City of which 9.5 acres are located within Westbury in order to add taller wind rows and increase the capacity of its operation. (003669901 Page 1 of 14 Initials: The City: Green Organics: Bristol Ventutes+ Midwest: D. WHEREAS, as a result of that request, Bristol Ventures and the City entered into the Second Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement(the"Second Amendment")on March 11,2014. E. WHEREAS, the Second Amendment amended the Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the "First Amendment"), pursuant to Section 32F of the First Amendment, to authorize the use of the aforementioned approximately nine and one-half(9.5) acres of land in Westbury as depicted on Exhibit A attached to the Second Amendment(the"subject property")as a composting facility. F. WHEREAS, the Parties are now in dispute regarding the length of the term of the uses,permits and approvals allowed under the Second Amendment. G. WHEREAS, as a result of said dispute, Green Organics and Bristol Ventures initiated litigation in the Circuit Court for the Twenty-Third Judicial Circuit, Kendall County, Illinois, in the case entitled Green Organics, Inc. & Bristol Venture, LLC v. United City of Yorkville, Case No. 2019MR000027 (the "Lawsuits"). The Lawsuits involve and include the following: 1. Green Organics and Bristol Ventures filed their Complaint for Declaratory Judgment against the City seeking a declaratory judgment that Green Organics and Bristol Ventures were allowed to continue composting operations on the subject property; 2. The City filed an Answer and Affirmative Defense to Complaint for Declaratory Judgment and Counterclaim against Green Organics and Bristol Ventures seeking a declaratory judgment that the uses, permits and approvals allowed under the Second Amendment terminated on January 14, 2019 and seeking to enjoin Green Organics and Bristol Ventures from allowing Midwest to operate the composting facility on the subject property; and 3. The City filed a Third-Party Complaint for Injunctive Relief against Midwest seeking to enjoin Midwest from operating the composting facility on the subject property. (00366990) Page 2 of 14 Initials: The City: Green Organics: Bristol ventures- Midwest: H. WHEREAS, the Parties desire to settle and dispose of all of the claims that the Parties have against each other(excluding any potential claims stemming from or pursuant to the August 31, 2016 Agreement entered into between Green Organics and Midwest) and avoid the expense and inconvenience of litigation. AGREEMENT NOW THEREFORE, in consideration of the recitals, covenants, and terms contained in this Agreement,the Parties agree as follows: 1. The foregoing Recitals are incorporated into and made a part of this Agreement. 2. The Parties agree that the uses, permits and approvals allowed under the Second Amendment shall continue until March 4, 2023, subject to all of the same conditions and provisions set forth in the Second Amendment and as modified by the terms of this Agreement. 3. A temporary special use, as set forth under Section 2 of the Second Amendment, to continue operation of the compost facility will be permitted until March 4, 2023, (said temporary special use is subject to the modified Section 4(h)(i)-(vi)of the Second Amendment as set forth under Paragraph 8 of this Agreement). 4. The Parties acknowledge and agree that the March 4, 2023 termination date may be extended to a later date if and only if all of the Parties agree. Any such agreement must be in writing and signed by all of the Parties and will be subject to all of the same conditions and provisions set forth in this Agreement and in the Second Amendment. 5. The City approves Midwest as a New User of the subject property and the composting facility on the subject property. (00366990) Page 3 of 14 Initials: The City: Green Organics: Bristol Ventures' Midwest: 6. No expansion or reconfiguration of the composting operations located on the subject property is permitted during the term of the Second Amendment as modified by this Agreement,unless otherwise approved by the City. 7. Section 4(g)of the Second Amendment is null and void. 8. Section 4(h) of the Second Amendment is null and void, and replaced with the following modified Section 4(h)(i)-(vi): Section 4. [...I h. Green Organics and Midwest must complete the full decommissioning and site restoration process in accordance with the closure plan and in accordance with Section 830.213 Standards for Compost Facilities of the IEPA (the "Closure Process"),no later than one(1)year after the agreed termination date or by March 4,2024. i. On or before March 4, 2023, Green Organics and Midwest must submit to the City a written closure plan for the subject property in compliance with Section 830.213 Standards for Compost Facilities of the Illinois Environmental Protection Act("IEPA"). ii. Upon full completion of the Closure Process, Midwest shall issue to the City a "Certificate of Completion" consisting of an affidavit stating that the subject property has been fully decommissioned and restored in accordance with the closure plan and in accordance with Section 830.213 Standards for Compost Facilities of the IEPA. iii. Completion of the Closure Process will be subject to the United City of Yorkville's city engineer certification that decommissioning and site restoration has been fully completed in accordance with the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities. iv. Within seven (7) business days of receiving Midwest's Certificate of Completion, the City shall issue to Green Organics and Midwest either: 1. A written notice of the City's approval of Midwest's Certificate of Completion and confirmation that a city engineer has certified that the Closure Process has been fully completed in accordance with (003669901 Page 4 of 14 Initials: The City: Green Organics: Bristol Ventures - Midwest: the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities; or 2. A written notice of the City's denial of Midwest's Certificate of Completion and of its findings suggesting that the subject property has not been fully decommissioned and restored in accordance with the closure plan and in accordance with IEPA Section 830.213 Standards for Compost Facilities, advising with specificity what requirements under the closure plan and/or IEPA Section 830.213 Standards for Compost Facilities the City is claiming were not fully met/completed. Any such written notice by the City shall be sent via email to: Joe Mazza President Green Organics, Inc. jmazza mcmnc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronica(a)mwcompanies.com v. In the event that the City issues to Green Organics and Midwest a written notice of its denial of Midwest's Certificate of Completion (pursuant to subparagraph 4(h)(iv)(2) above), Midwest will have fourteen (14) days from the date of receiving such written notice during which to complete, correct, remedy, or otherwise address the reportedly incomplete requirements indicated by the City and to respond to the City by submitting a revised Certificate of Completion in accordance with subparagraph 4(h)(ii)above. j vi. The Parties acknowledge and agree that, pursuant to IEPA §830.604 and §830.605, Midwest previously established and continues to maintain a cash reserve account with Byline Bank containing financial assurance funds(hereinafter the`Byline Bank Account"). I The Parties acknowledge and agree that, pursuant to IEPA §830.604 and §830.605, the financial assurance funds maintained in the Byline Bank Account must be used by Midwest to cover the cost of closure (decommissioning and site restoration), and that Midwest must maintain full funding in the Byline Bank Account (in an amount equal or greater 100366990) Page 5 of 14 Initials: The City: Green Organics: Bristol Ventures: Midwest: than the amount previously provided as a written cost estimate in the financial assurance plan) pending the expenditure of such funds to cover the costs of closure(decommissioning and site restoration). Furthermore, Midwest agrees and understands that, pursuant to IEPA §830.604, any financial assurance funds remaining in the Byline Bank Account after completion of full decommissioning and site restoration of the subject property cannot and will not be released to Midwest for unrestricted use until Midwest receives written notice from the City, in accordance with subparagraph 4(h)(iv)(1) above, approving Midwest's Certificate of Completion and confirming that a city engineer has certified that decommissioning and site restoration has been fully completed in accordance with the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities. Upon receiving such written notice from the City(pursuant to subparagraph 4(h)(iv)(1)above), any and all financial assurance funds remaining in the Byline Bank Account will be released to Midwest for unrestricted use (pursuant to IEPA §830.604(c)). The City agrees that it will not unnecessarily delay providing its written notice. 9. The City will timely investigate any and all complaints received by it regarding violations of any City Ordinance as they pertain to Green Organics and/or Midwest's operations that are located within the City of Yorkville. a. No later than two(2)business days after receiving any such complaint or upon the City's own investigation into any potential City Ordinance violation,the City will provide written notice of the complaint or City Ordinance violation to Green Organics and Midwest via email to: Joe Mazza President Green Organics,Inc. jmazza-mcminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronig4@Awcomt)anies.com (003669901 Page 6 of 14 Initials: The City: Green Organics: Bristol Ven Midwest: b. In the event that any City Ordinance violation or any such complaint received by the City is related to odor, the City will investigate the complaint/potential City Ordinance violation and perform odor testing in the area/location within the City of Yorkville that the complaint/potential City Ordinance violation stems from as soon as practicable. For complaints received during the City's hours of operation (except for a complaint received during the last two hours before closing), the City will perform said odor testing on the date the complaint is made and as close to the time of the complaint as reasonably possible. For complaints received outside of the City's hours of operation (or less than two hours before closing), the City will perform said odor testing on the next business day. The method used by the City to perform any such odor testing will be by measuring and quantifying the odor in the ambient air in the area/location within the City of Yorkville that the complaint stems from using an ASTM certified portable odor detecting and measuring device known as a field olfactometer. i. No later than two (2) business days after performing any such odor testing,the City will send Green Organics and Midwest written notice of its findings including the following information: the date and time the complaint was made; the area/location within the City of Yorkville that the complaint stems from; the outdoor temperature, wind condition, and ambient air reading from an ASTM certified field olfactometer device measured in said area/location within the City on the date the complaint was made and as close to the time of the complaint as reasonably possible; and all such other information that is relevant to the complaint i (00366990) Page 7 of 14 Initials: The City: Green Organics: Bristol Ventures: _ Midwest: j and the City's investigation of the same. Such written notice shall be sent via email to: Joe Mazza President Green Organics,Inc. imazza mcminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronica anwcompanies.com ii. In the event that the field olfactometer device measurement from any such odor testing exceeds that threshold set forth in the ASTM Standard of Practice E679-91, Green Organics and/or Midwest shall take steps to immediately correct the conditions that are causing the odor. Additionally, within five(5)business days of receiving written notice of the City's findings, Midwest shall send the City a written response, including a description of any steps taken by Green Organics and/or Midwest to correct the conditions complained of,via email to: Peter Ratos Building Code Official ratos c Yorkville.it.us C. In the event that any City Ordinance violation or any such complaint received by the City is related to conditions other than odor, Green Organics and/or Midwest shall take steps to immediately correct any such conditions that are determined reasonably to be a violation of the City's ordinances; (00366990) Page 8 of 14 Initials: The City: Green Organics: Bristol Ventu Midwest: i. Within seven (7) days of receiving any such complaint/potential City Ordinance violation, Midwest shall send the City a written response, including a description of any steps taken by Green Organics and/or Midwest to correct the conditions complained of,via email to: Peter Ratos Building Code Official pratmc�rJ�yarkvi I le,i 1.us 10. Green Organics agrees to pay to the City an annual fee for tipping in the amount of twenty-five cents ($0.25) per ton of composting material received at the composting facility. All fees due to the City shall be paid by Green Organics to the City on or before January 31 st of each year for the prior calendar year. Green Organics shall submit documentation of the annual amount of composting material received at the composting facility with the payment. Failure by Green Organics to pay any amounts due under this paragraph when due shall cause interest at 1.5%per month to be paid by Green Organics. a. Any and all amounts due to the City pursuant to Paragraph 10, including any potential interest, shall be borne by and remain the sole responsibility of Green Organics. These costs will not be passed on to Midwest in any way or form. b. Midwest is required to cooperate with Green Organics and the City to provide documentation showing only the total annual amount of composting material received at the composting facility to the extent such information is in the exclusive control of Midwest. 11. Any and all complaints received by the City regarding violations of any Kendall County ordinance as they pertain to Green Organics and/or Midwest's operations that are located within Kendall County shall be forwarded to Kendall County and to Green Organics and (00366990) Page 9 of 14 Initials: The City: Green Organics: Bristol Vcntu Midwest: Midwest in writing. No later than two (2) business days after receiving any such complaint, the City will provide written notice of the complaint received by it to Green Organics and Midwest via email to: Joe Mazza President Green Organics,Inc. 'Mazza mcminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronica@Mwcompanies.com 12. Within fourteen (14) days after the execution of this Agreement by all Parties, counsel for the Parties shall execute a joint stipulation of dismissal of the Lawsuits with prejudice and without costs. The fully executed stipulation shall be filed with the Court and the Parties shall submit to the Court at the earliest practicable time a dismissal order based on the stipulation, which shall contain a provision that to the extent permitted by law, the Court shall retain jurisdiction to enforce this Agreement. 13. The Parties agree that each of the Parties shall bear its own costs, attorneys' fees and other expenses incurred in connection with the Lawsuits and the negotiation and preparation of this Agreement. However, nothing in this Agreement, and specifically in this Paragraph 13, shall be interpreted or construed as a waiver of any potential claims stemming from or pursuant to the August 31,2016 Agreement entered into between Green Organics and Midwest. 14. Should any of the Parties, after the Agreement is deemed to be fully executed pursuant to Paragraph 19 below, institute further legal proceedings, or employ an attorney to institute further legal proceedings, in any way related to this Agreement and/or seeking to (00366990) Page 10 of 14 Initials: The City: Green Organics: Bristol Ventures: _Midwest: enforce any of the provisions in this Agreement, or to protect its interest in any matter arising under this Agreement, or seeking to collect damages for any breach of this Agreement, or to cause any party to complete, correct, remedy, or otherwise address the reportedly incomplete requirements, in order to fully complete the Closure Process in accordance with the closure plan and in accordance with IEPA Section 830.213 Standards for Compost Facilities, modified Section 4(h)(i)-(vi) of the Second Amendment as set forth under Paragraph 8 of this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses incurred therein, including such party's reasonable attorneys' fees and expenses. "Prevailing party" shall mean a party that is successful on any significant issue in the action and achieves some benefit in bringing suit, when it receives a judgment or court order in its favor, or when it achieves an affirmative recovery. A Prevailing party need not win on all claims. 15. This Agreement, including any other writings incorporated by reference herein, contains the entire understandings and agreements of the Parties with respect to the subject matter hereof. All oral or written agreements between the Parties prior to the Effective Date of this Agreement and which relate to this Agreement and the matters set forth herein are declared null and void, except for any and all agreements, documents, leases, and other writings incorporated by reference herein. Specifically, the August 31, 2016 Agreement entered into between Green Organics and Midwest is incorporated by reference herein and, as such, is still valid and binding. 16. 'Any modification and/or amendment to this Agreement shall be made in writing and executed by all Parties. 17. This Agreement is the compromise of disputed claims and is intended to amicably resolve disputes and to avoid extensive and uncertain litigation. Nothing contained in this (00366990) Page 11 of 14 Initials: The City: Green Organics: Bristol Ventures:®&- Midwest: Agreement shall be interpreted or construed to be an admission on the part of, or to the prejudice of,any person or party named herein. 18. It is understood and agreed by the Parties that this Agreement shall be construed without regard to any presumption or other rule requiring construction or interpretation against the drafting party. 19. This Agreement may be executed in counterparts, each of which shall be deemed to be an original as against any Parties whose signatures appear thereon, and all of which together shall constitute one and the same Agreement. The Agreement shall be deemed to be fully executed when one or more counterparts, individually or taken together, shall bear the signatures of each of the persons reflected as signatories. Signatures that are photocopied, scanned, emailed, faxed, or otherwise electronically reproduced or transmitted shall be deemed to be originals. 20. The Parties agree that no third party shall have any rights under this Agreement. 21. Each of the Parties represents and warrants that it has full, complete, and valid authority to execute this Agreement, to settle and release all claims covered by this Agreement, and to effect any and all actions contemplated in this Agreement. The signatories to this Agreement further represent that they have the necessary authority to bind their respective Parties. 22. If any provision in this Agreement is adjudicated invalid or unenforceable by a judicial body of competent jurisdiction, but said judicial body determines that'such provision would be valid and enforceable if its scope was limited, then the Parties hereby authorize and direct such judicial body to limit the scope of such provision in the minimum amount it deems i necessary to make such provision valid and enforceable to the fullest extent permissible under i 100366990) Page 12 of 14 Initials: The City: Green Organics: Bristol Ventures: Midwest: the laws and public policies of that jurisdiction. If any provision of this Agreement is adjudicated invalid or unenforceable by a judicial body of competent jurisdiction, and the judicial body making such determination, also, determines that it could not be made valid and enforceable by a limitation thereon,then such provision shall be deleted, and all other provisions of this Agreement shall, in all other respects, remain unmodified and continue in full force and effect, and their validity shall not be affected, provided that the remaining parts, terms, and provisions of the Agreement can be construed in substance to constitute the agreement the Parties intended to enter. This provision shall not preclude a court of competent jurisdiction from refusing to sever any provision if severance would be inequitable. 23. This Agreement shall be governed by the law of the state of Illinois. 24. This Agreement may not be assigned by any party without the advance written consent of the other Parties. Any assignment in violation of this provision shall be void. 25. This Agreement is subject to and conditioned upon approval by the Yorkville City Council. Remainder of Page Intentionally Left Blank;Signature Page Follows 100366990) Page 13 of 14 Initials: The City: Green Organics: Bristol Ventures: Midwest: IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date appearing hereafter. UNITED CITY OF YORKVILLE BRISTOL VENTURES,LLC By: By: Its:Mayor Its. �Manaqer Print name: Print name: John Undesser Dated: Dated: August Z/ , 2020 GREEN ORGANICS,INC. MIDWEST MATERIALS MANAGEMENT, LLC By By: Its: Its: Print name: Print name: Dated: Dated: (00366990) Page 14 of 14 Initials: The City: Green Organics: Bristol Ventures Midwest: SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made by and among the United City of Yorkville, Illinois (the "City"), Green Organics, Inc. (identified as "Green Organics" herein and as the "Composter" in the Second Amendment), Bristol Ventures, LLC (identified as "Bristol Ventures" herein and as the "New Owner" in the Second Amendment), and Midwest Materials Management, LLC (`Midwest') (collectively, the "Parties") on this 25`I' day of August 2020 (the "Effective Date"). RECITALS A. WHEREAS, on September 9, 2004, the City entered into an Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the "First Amendment") with all of the owners of approximately 300 acres of land generally located south of Galena Road and west of Illinois Route 47 and known as the Westbury Village Subdivision ("Westbury"). B. WHEREAS, as of the date of the First Amendment, 14.62 acres of Westbury was utilized by Green Organics, an Illinois corporation, as a composting facility for landscape waste and food waste which Green Organics, through Midwest, continues to use for said purposes as of the date hereof. C. WHEREAS, Bristol Ventures, the successor to the Estate of Henrietta Undesser, deceased, and the Estate of Richard J. Undesser, Sr., deceased (the "Prior Owners"), on behalf of Green Organics, approached the City with a proposal to eliminate 10.5 of the original 14.62 acres in the City and reconfigure its operation to approximately 13.73 acres of land in the City of which 9.5 acres are located within Westbury in order to add taller wind rows and increase the capacity of its operation. (00366990: Page 1 of 14 Initials: The Citv: Green Organics: Bristol Ventures:_ __ Midges D. WHEREAS, as a result of that request, Bristol Ventures and the City entered into the Second Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the "Second Amendment") on March 11, 2014. E. WHEREAS, the Second Amendment amended the Amendment to Annexation Agreement, Annexation Agreement and Planned Unit Development Agreement (the "First Amendment"), pursuant to Section 32F of the First Amendment, to authorize the use of the aforementioned approximately nine and one-half(9.5) acres of land in Westbury as depicted on Exhibit A attached to the Second Amendment(the "subject property") as a composting facility. F. WHEREAS, the Parties are now in dispute regarding the length of the term of the uses, permits and approvals allowed under the Second Amendment. G. WHEREAS, as a result of said dispute, Green Organics and Bristol Ventures initiated litigation in the Circuit Court for the Twenty-Third Judicial Circuit, Kendall County, Illinois, in the case entitled Green Organics, Inc. & Bristol Venture, LLC v. United City of Yorkville, Case No. 2019MR000027 (the "Lawsuits"). The Lawsuits involve and include the following: 1. Green Organics and Bristol Ventures filed their Complaint for Declaratory Judgment against the City seeking a declaratory judgment that Green Organics and Bristol Ventures were allowed to continue composting operations on the subject property; 2. The City filed an Answer and Affirmative Defense to Complaint for Declaratory Judgment and Counterclaim against Green Organics and Bristol Ventures seeking a declaratory judgment that the uses, permits and approvals allowed under the Second Amendment terminated on January 14, 2019 and seeking to enjoin Green Organics and Bristol Ventures from allowing Midwest to operate the composting facility on the subject property; and 3. The City filed a Third-Party Complaint for Injunctive Relief against Midwest seeking to enjoin Midwest from operating the composting facility on the subject property. ;00360990; Page 2 of 14 Initials: The City: Green Organics:_ Bristol Ventures: Midwest! H. WHEREAS, the Parties desire to settle and dispose of all of the claims that the Parties have against each other (excluding any potential claims stemming from or pursuant to the August 31, 2016 Agreement entered into between Green Organics and Midwest) and avoid the expense and inconvenience of litigation. AGREEMENT NOW THEREFORE, in consideration of the recitals, covenants, and terms contained in this Agreement, the Parties agree as follows: 1. The foregoing Recitals are incorporated into and made a part of this Agreement. 2. The Parties agree that the uses, permits and approvals allowed under the Second Amendment shall continue until March 4, 2023, subject to all of the same conditions and provisions set forth in the Second Amendment and as modified by the terms of this Agreement. 3. A temporary special use, as set forth under Section 2 of the Second Amendment, to continue operation of the compost facility will be permitted until March 4, 2023, (said temporary special use is subject to the modified Section 4(h)(i)-(vi) of the Second Amendment as set forth under Paragraph 8 of this Agreement). 4. The Parties acknowledge and agree that the March 4, 2023 termination date may be extended to a later date if and only if all of the Parties agree. Any such agreement must be in writing and signed by all of the Parties and will be subject to all of the same conditions and provisions set forth in this Agreement and in the Second Amendment. 5. The City approves Midwest as a New User of the subject property and the composting facility on the subject property. 00366990; Paw 3 of 14 Initials: The City:_ Green Organics: Bristol Ventures: Midwest 6. No expansion or reconfiguration of the composting operations located on the subject property is permitted during the term of the Second Amendment as modified by this Agreement, unless otherwise approved by the City. 7. Section 4(g) of the Second Amendment is null and void. 8. Section 4(h) of the Second Amendment is null and void, and replaced with the following modified Section 4(h)(i)-(vi): Section 4. [...I h. Green Organics and Midwest must complete the full decommissioning and site restoration process in accordance with the closure plan and in accordance with Section 830.213 Standards for Compost Facilities of the IEPA (the "Closure Process"), no later than one (1) year after the agreed termination date or by March 4, 2024. i. On or before March 4, 2023, Green Organics and Midwest must submit to the City a written closure plan for the subject property in compliance with Section 830.213 Standards for Compost Facilities of the Illinois Environmental Protection Act("IEPA"). ii. Upon full completion of the Closure Process, Midwest shall issue to the City a "Certificate of Completion" consisting of an affidavit stating that the subject property has been fully decommissioned and restored in accordance with the closure plan and in accordance with Section 830.213 Standards for Compost Facilities of the IEPA. iii. Completion of the Closure Process will be subject to the United City of Yorkville's city engineer certification that decommissioning and site restoration has been fully completed in accordance with the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities. iv. Within seven (7) business days of receiving Midwest's Certificate of Completion, the City shall issue to Green Organics and Midwest either: 1. A written notice of the City's approval of Midwest's Certificate of Completion and confirmation that a city engineer has certified that the Closure Process has been frilly completed in accordance with 0036090; Page 4 of 14 Initials: t he City: Green Organics: Bristol Ventures: Ytidwe tt the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities; or 2. A written notice of the City's denial of Midwest's Certificate of Completion and of its findings suggesting that the subject property has not been fully decommissioned and restored in accordance with the closure plan and in accordance with IEPA Section 830.2131 Standards for Compost Facilities, advising with specificity what requirements under the closure plan and/or IEPA Section 830.213 Standards for Compost Facilities the City is claiming were not fully met/completed. Any such written notice by the City shall be sent via email to: Joe Mazza President Green Organics, Inc. jmzz;t ot}meminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronieard?mw companies.com v. In the event that the City issues to Green Organics and Midwest a written notice of its denial of Midwest's Certificate of Completion (pursuant to subparagraph 4(h)(iv)(2) above), Midwest will have fourteen (14) days from the date of receiving such written notice during which to complete, correct, remedy, or otherwise address the reportedly incomplete requirements indicated by the City and to respond to the City by submitting a revised Certificate of Completion in accordance with subparagraph 4(h)(ii) above. vi. The Patties acknowledge and agree that, pursuant to IEPA §830.604 and §830.605, Midwest previously established and continues to maintain a cash reserve account with Byline Bank containing financial assurance funds (hereinafter the `'Byline Bank Account"). The Parties acknowledge and agree that, pursuant to [EPA §830.604 and §830.605, the financial assurance funds maintained in the Byline Bank- Account must be used by Midwest to cover the cost of closure (decommissioning and site restoration), and that Midwest must maintain frill funding in the Byline Bank Account (in an amount equal or greater 00366990; Page 5 of 14 Initials: The City: Green Organics: Bristol Ventures: than the amount previously provided as a written cost estimate in the financial assurance plan) pending the expenditure of such funds to cover the costs of closure (decommissioning and site restoration). Furthermore, Midwest agrees and understands that, pursuant to IEPA §830.604, any financial assurance funds remaining in the Byline Bank Account after completion of full decommissioning and site restoration of the subject property cannot and will not be released to Midwest for unrestricted use until Midwest receives written notice from the City, in accordance with subparagraph 4(h)(iv)(1) above, approving Midwest's Certificate of Completion and confirming that a city engineer has certified that decommissioning and site restoration has been fully completed in accordance with the closure plan and in compliance with IEPA Section 830.213 Standards for Compost Facilities. Upon receiving such written notice from the City (pursuant to subparagraph 4(h)(iv)(I) above), any and all financial assurance funds remaining in the Byline Bank Account will be released to Midwest for unrestricted use (pursuant to IEPA §830.604(c)). The City agrees that it will not unnecessarily delay providing its written notice. 9. The City will timely investigate any and all complaints received by it regarding violations of any City Ordinance as they pertain to Green Organics and/or Midwest's operations that are located within the City of Yorkville. a. No later than two (2) business days after receiving any such complaint or upon the City's own investigation into any potential City Ordinance violation, the City will provide written notice of the complaint or City Ordinance violation to Green Organics and Midwest via email to: Joe Mazza President Green Organics, Inc. jmazza!ii mcminc.net and Veronica Berglund Partner Midwest Materials Management. LLC veronicas t;mwcoinpanies.com 0036ee90 l Page 6 of 14 In is: The Cite: Green Organics: Bristol ventures: Midwest:-)_ b. In the event that any City Ordinance violation or any such complaint received by the City is related to odor, the City will investigate the complaint/potential City Ordinance violation and perform odor testing in the area/location within the City of Yorkville that the complaint/potential City Ordinance violation stems from as soon as practicable. For complaints received during the City's hours of operation (except for a complaint received during the last two hours before closing), the City will perform said odor testing on the date the complaint is made and as close to the time of the complaint as reasonably possible. For complaints received outside of the City's hours of operation (or less than two hours before closing), the City will perform said odor testing on the next business day. The method used by the City to perform any such odor testing will be by measuring and quantifying the odor in the ambient air in the area/location within the City of Yorkville that the complaint stems from using an ASTM certified portable odor detecting and measuring device known as a field olfactometer. i. No later than two (2) business days after performing any such odor testing, the City will send Green Organics and Midwest written notice of its findings including the following information: the date and time the complaint was made; the area/location within the City of Yorkville that the complaint stems from; the outdoor temperature, wind condition, and ambient air reading from an ASTM certified field olfactometer device measured in said area/location within the City on the date the complaint was made and as close to the time of the complaint as reasonably possible; and all such other information that is relevant to the complaint (00366990: Page 7 of 14 Initials: The Citv: Grecn Oreanics: Bristol Ventures: Midwcst� and the City's investigation of the same. Such written notice shall be sent via email to: Joe Mazza President Green Organics, Inc. i mazzwd,mcmi ne.net and Veronica Berglund Partner Midwest Materials Management. LLC veronica(r��mwcompanies.com ii. In the event that the field olfactometer device measurement from any such odor testing exceeds that threshold set forth in the ASTM Standard of Practice E679-91, Green Organics and/or Midwest shall take steps to immediately correct the conditions that are causing the odor. Additionally, within five (5) business days of receiving written notice of the City's findings, Midwest shall send the City a written response, including a description of any steps taken by Green Organics and/or Midwest to correct the conditions complained of, via email to: Peter Ratos Building Code Official ratios cry��rl:�ill�,_,t(,r�; C. In the event that any City Ordinance violation or any such complaint received by the City is related to conditions other than odor, Green Organics and/or Midwest shall take steps to immediately correct any such conditions that are determined reasonably to be a violation of the City's ordinances; 00366990: Page 8 of 14 Initials: The City: Green Organics:_ Bristol Ventures: Midwest: -./ i. Within seven (7) days of receiving any such complaint/potential City Ordinance violation, Midwest shall send the City a written response, including a description of any steps taken by Green Organics and/or Midwest to correct the conditions complained of, via email to: Peter Ratos Building Code Official pr�ttps Wit,orl.villc:.lLus 10. Green Organics agrees to pay to the City an annual fee for tipping in the amount of twenty-five cents (S0.25) per ton of composting material received at the composting facility. All fees due to the City shall be paid by Green Organics to the City on or before January 31st of each year for the prior calendar year. Green Organics shall submit documentation of the annual amount of composting material received at the composting facility with the payment. Failure by Green Organics to pay any amounts due under this paragraph when due shall cause interest at 1.5% per month to be paid by Green Organics. a. Any and all amounts due to the City pursuant to Paragraph 10, including any potential interest, shall be borne by and remain the sole responsibility of Green Organics. These costs will not be passed on to Midwest in any way or form. b. Midwest is required to cooperate with Green Organics and the City to provide documentation showing only the total annual amount of composting material received at the composting facility to the extent such information is in the exclusive control of Midwest. 11. Any and all complaints received by the City regarding violations of any Kendall County ordinance as they pertain to Green Organics and/or Midwest's operations that are located within Kendall County shall be forwarded to Kendall County and to Green Organics and 00366990: Page 9 of 14 Initials: The City: Grecn Organics: Bristol Ventures: Midwest- Midwest in writing. No later than two (2) business days after receiving any such complaint, the City will provide written notice of the complaint received by it to Green Organics and Midwest via email to: Joe Mazza President Green Organics, Inc. jmarza`cimcmine.net and Veronica Berglund Partner Midwest Materials Management. LLC veronicas i,mr%�companies.com 12. Within fourteen (14) days after the execution of this Agreement by all Parties, counsel for the Parties shall execute a joint stipulation of dismissal of the Lawsuits with prejudice and without costs. The fully executed stipulation shall be filed with the Court and the Parties shall submit to the Court at the earliest practicable time a dismissal order based on the stipulation, which shall contain a provision that to the extent permitted by law, the Court shall retain jurisdiction to enforce this Agreement. 13. The Parties agree that each of the Parties shall bear its own costs, attorneys' fees and other expenses incurred in connection with the Lawsuits and the negotiation and preparation of this Agreement. However, nothing in this Agreement, and specifically in this Paragraph 13, shall be interpreted or construed as a waiver of any potential claims stemming from or pursuant to the August 31, 2016 Agreement entered into between Green Organics and Midwest. 14. Should any of the Parties, after the Agreement is deemed to be fully executed pursuant to Paragraph 19 below, institute further legal proceedings, or employ an attorney to institute further legal proceedings, in any way related to this Agreement and/or seeking to ,00366990; Page 10 of 14 Initials: The City: Green Organics: Bristol Ventures: Mid��•ea�t5a 1 enforce any of the provisions in this Agreement, or to protect its interest in any matter arising under this Agreement, or seeking to collect damages for any breach of this Agreement, or to cause any party to complete, correct, remedy, or otherwise address the reportedly incomplete requirements, in order to fully complete the Closure Process in accordance with the closure plan and in accordance with [EPA Section 830.213 Standards for Compost Facilities, modified Section 4(h)(i)-(vi) of the Second Amendment as set forth under Paragraph 8 of this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses incurred therein, including such party's reasonable attorneys' fees and expenses. "Prevailing party" shall mean a party that is successful on any significant issue in the action and achieves some benefit in bringing suit, when it receives a judgment or court order in its favor, or when it achieves an affirmative recovery. A Prevailing party need not win on all claims. 15. This Agreement, including any other writings incorporated by reference herein, contains the entire understandings and agreements of the Parties with respect to the subject matter hereof. All oral or written agreements between the Parties prior to the Effective Date of this Agreement and which relate to this Agreement and the matters set forth herein are declared null and void. except for any and all agreements, documents, leases, and other writings incorporated by reference herein. Specifically, the August 31, 2016 Agreement entered into between Green Organics and Midwest is incorporated by reference herein and, as such, is still valid and binding. 16. Any modification and/or amendment to this Agreement shall be made in writing and executed by all Parties. 17. This Agreement is the compromise of disputed claims and is intended to amicably resolve disputes and to avoid extensive and uncertain litigation. Nothing contained in this :00366990; Page 11 of 14 (nitials: The Cite: __ Green Organics: Bristol Ventures: _ Midxvest� Agreement shall be interpreted or construed to be an admission on the part of, or to the prejudice of, any person or party named herein. 18. It is understood and agreed by the Parties that this Agreement shall be construed without regard to any presumption or other rule requiring construction or interpretation against the drafting party. 19. This Agreement may be executed in counterparts. each of which shall be deemed to be an original as against any Parties whose signatures appear thereon, and all of which together shall constitute one and the same Agreement. The Agreement shall be deemed to be fully executed when one or more counterparts, individually or taken together, shall bear the signatures of each of the persons reflected as signatories. Signatures that are photocopied, scanned, emailed, faxed, or otherwise electronically reproduced or transmitted shall be deemed to be originals. 20. The Parties agree that no third party shall have any rights under this Agreement. 21. Each of the Parties represents and warrants that it has full, complete, and valid authority to execute this Agreement, to settle and release all claims covered by this Agreement, and to effect any and all actions contemplated in this Agreement. The signatories to this Agreement further represent that they have the necessary authority to bind their respective Parties. 22. If any provision in this Agreement is adjudicated invalid or unenforceable by a judicial body of competent jurisdiction, but said judicial body determines that such provision would be valid and enforceable if its scope was limited, then the Parties hereby authorize and direct such judicial body to limit the scope of such provision in the minimum amount it deems necessary to make such provision valid and enforceable to the fullest extent permissible under ;00366990; Page 12 of 14 Initials: The City: Green Organics. Bristol Ventures: Mid,.%€ the laws and public policies of that jurisdiction. If any provision of this Agreement is adjudicated invalid or unenforceable by a judicial body of competent jurisdiction, and the judicial body making such determination, also, determines that it could not be made valid and enforceable by a limitation thereon, then such provision shall be deleted, and all other provisions of this Agreement shall, in all other respects, remain unmodified and continue in full force and effect, and their validity shall not be affected, provided that the remaining parts, terms, and provisions of the Agreement can be construed in substance to constitute the agreement the Parties intended to enter. This provision shall not preclude a court of competent jurisdiction from refusing to sever any provision if severance would be inequitable. 23. This Agreement shall be governed by the law of the state of Illinois. 24. This Agreement may not be assigned by any party without the advance written consent of the other Parties. Any assignment in violation of this provision shall be void. 25. This Agreement is subject to and conditioned upon approval by the Yorkville City Council. Remainder of Page Intentionally Left Blank;Signature Page Follows 00306990; Page 13 of 14 Initials: The City: Green Organics: Bristol Ventures: Midwest IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date appearing hereafter. UNITED CITY OF YORKVILLE BRISTOL VENTURES, LLC By:_______ By: Its: Mayor Its: —_-- Print name: Print name: Dated: Dated: GREEN ORGANICS, INC. MIDWEST MATERIALS MANAGEMENT, LLC By: By: Its: _._ _ Its: Print name: Print name: E _� �► �-lr�•t Dated: Dated: 'R — t00366990: Page 14 of 14 Initials: "the City: Green Organics: Bristol Ventures: Midwest