HomeMy WebLinkAbout6.7a Motion to waive the rule requiring two readings of an ordinance and adopt AN ORDINANCE PROHIBITING THE USE OF GROUNDWATER AS A POTABLE WATER SOURCE NEAR 606 WEST NORTHWEST HIGHWAYItem Cover Page
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Mwbubject 6,7a A Motion to waive the rule requiring two
readings of an ordinance and adopt AN ORDINANC:;
PROHIBITING THE USE OF GROUNDWATER AS A
POTABLE WATER SOURCE NEAR 606 WEST
NORTHWEST HIGHWAY
Meeting Ne2020 - REGULAR MEETING OF THE MOUN
PROSPECT BOARD
'iscal Impact r I so
kollar Amount
W dg -Source N/A.
f ry CONSENT AGENDA
ActionType
Information
Graham Enterprise, Incorporated, (Graham Enterprise) the owners of the
commercial • ' at 606 West Northwest !! have '• '! the Village
• ! groundwater • restriction ordinance. i requested
, . 1 ,
restrict the use of groundwater as a drinking water source near the site.
The firm has also asked the Village to enter into a highway authority agreement.
This instrument is 1 institutional •• I allows contamination • ! private
property leaking underground storage tank to remain in place beneath a municipal
Graham Enterprise seeks these accommodations to satisfy Illinois Environmental
Protection Agency (IEPA) requirements for a "No Further Remediation" (NFR)
letter. An NFR letter will formally resolve 1, leaking underground •I'! tank
(LUST) incident associated historic as 1 gasoline station.
Attached for your reference is a memorandum from Dennis Walsh at Klein,,
Thorpe, and Jenkins, LTD. (KTJ) recommending passage of the requested
ordinance as well as execution of a highway authority agreement and ar
environmental indemnity agreement.
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AvenueThe requested ordinance would prohibit the use of groundwater as a drinking
water source for the entire site as well as a portion of Northwest Highway in front
of the affected property. The groundwater use restriction would also apply to the
Fairview right-of-way..' adjacent• the easternof •.
station parcel. A map attached to the ordinance document depicts the affected
area.
The highway authority agreement would allow contamination to remain in place
beneath the Fairview Avenue right-of-way between Northwest Highway and Henry
Street. A separate agreement between Graham Enterprise and IDOT will be
necessary in order o leave contamination. beneath
Highway right-of-way. A map attached to the highway authority agreement
document depicts the affected area.
The environmental indemnity agreement between Graham Enterprise, Inc. and
the Village of Mount Prospect protects the Village from costs and claims that may
arise from any actual or perceived role facilitating contaminated soil at or near the
site. As an example, the provisions of the indemnity agreement provide a means
to recover excess costs for soil disposal if Village crews excavated in the
contaminated area to repair underground utilities.
Staff concurs with the recommendations of the Village attorneys with respect to
this ordinance and agreements..r controls havebeen utilized in the past to
help commercial properties remain saleable and viable. In this instance, the soil
and groundwater contamination left in place poses no health concerns, does not
change the use of impacted properties, and the proposed groundwater use
restriction will not impact any existing public or private water wells.
Alternatives
1. Pass a groundwater use restriction i
West Northwest Highway.
2. Authorize ighway authority agreement for Fairview
Northwest Highway.
3. Authorize it indemnity iEnterprise.
4. Action i ion of the Village Board.
Staff Recommendation
Staff recommends that the Village Board pass an ordinance restricting the use of
groundwater as a potable water source at and near 606 West Northwest Highway.
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Staff also recommends that w Board authorize a highway authority agreement ani
;tnvironmental indemnity agreement as institutional controls to allow contaminated soil to
remain beneath w Avenue right-of-way near 606 West Northwest Highway.
ATTACH M E NTS:
Enviornmental Indemnity Agreement - 606 W Northwest Hy.pdf
Groundwater—Use—Restriction—Ordinance 606_W—Northwest—Hy. pdf
Highway---.,Authority—Agreement---606—W—Northwest—Hy- pdf
Letter from KT] - pdf
Limited Groundwater Ordinance Map.pdf
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ENVIRONMENTAIj INDEMNITY AGREEMENT
This ENVIRONMENTAL INDEMNITY AGREEMENT is entered into as of the
day of 2020, by Graham Enterprise, Inc. ("Indemnitor") and the Village of
Mount Prospect, Cook County, Illinois (the "Village").
RJECITAILS
A. WHEREAS, Indemnitor was the owner of certain real property located at 606 West
Northwest Highway, Mount Prospect, Illinois ("Indemnitor's Property"), which is located at the
northwest comer of the intersection of Northwest Highway and Fairview Avenue in Mount
Prospect, Cook County, Illinois. With respect to the Township and Range coordinate system, the
subject property is situated in the southwest quarter of Section 34, `Township IP ownsh* 42 North, Range 11
East of the Third Principal Meridian in Mount Prospect, Wheeling Township.
B. WHEREAS, an underground storage tank system, as defined in 40 CFR Part 280 or
supplanting federal regulations, owned by Indemnitor or its predecessor in 'interest ("UST
System"), was present on Indemnitor's Property; and
C. WHEREAS, a release to the environment of petroleum hydrocarbons, including
gasoline additives, has occurred in the past at the Indemnitor's Property. (All of the previously
mentioned compounds, which may include Benzene, Ethylbenzene, Toluene, Xylene and Methyl
Tertiary Butyl Ether (MT: E) and those identified in TACO modeling calculations for the
groundwater contamination identified at Indemnitor's Property, are hereby collectively referred to
as "Compounds of Concern".) As a result of said release, the soil and groundwater at the
Indemnitor's Property contains detectable concentrations of Compounds of Concern. The
groundwater and soil impacted by Compounds of Concern extends beyond the Indemnitor's
Property. The Illinois Emergency Management Agency has assigned incident number 20041727
to the release at the Indemnitor's Property; and
D. WHEREAS, the Indemnitor has requested that the Village enter into a Highway
Authority Agreement ("HAA") with respect to certain public highways adjacent to the
Indemnitor's Property as identified in Exhibit A (the "Right -of -Way"). In addition, Indemnitor
seeks to enter into a Limited Groundwater Ordinance ("LGWO") for the area depicted and
described in "hlbtt "the I GWO,Ar�ea",. Access to soil and groundwater within the Right -of -
Way will be limited in the manner described in the proposed HAA. Groundwater will be restricted
from use as a potable water supply within the area described in the LGWO. The proposed HAA
and LGWO are attached hereto as Exhibits A and B. The area that is the subject of the HAA and
LGWO shall be the area in, under and adjacent to Indemnitor's Property which is within the
jurisdiction of the Village as described and set forth and described in the HAA ("HAA Area") and
LGWO ("LGWO Area").
El
NOW, THERFFOR-E, in consideration of the terms and covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. This Environmental Indemnity Agreement ("Agreement") is not binding upon the
Village or the Indemnitor until it is executed by the undersigned representative of the Village of
Mount Prospect and, prior to execution, this Agreement constitutes an offer by Indemnitor. The
duly authorized representative of Indemnitor has signed this Agreement, and this Agreement is
binding upon Indemnitor, its successors and assigns, once executed by the Village.
2. The Village agrees that it will agree to the terms of the HAA in the form attached as
Exhibit A and LGWO in the form attached as Exhibit B, and this Environmental Indemnity
Agreement is 'Intended to supplement the parties' rights and obligations provided for in the HAA
and LGWO provided, however, that if the Village does not enter into a HAA and LGWO, this
Agreement shall be deemed null and void, and Indemnitor shall have no other remedy against the
Village. No breach by the Village, its agents, trustees, employees and its successors in interest of
a provision of this Agreement is actionable in law or equity by Indemnitor against the Village, and
Indemnitor hereby releases the Village and Village Affiliates (as defined below) from any cause
of action it may have against them arising under this Agreement or Environmental Laws (as
defined below), regulations or common law.
Specifically, Indemnitor knowingly waives and releases the Village and/or Village
Affiliates from any and all claims, debts, dues and obligations of every kind and nature related to
the subject matter of this Agreement under the Illinois and United States Constitutions as well as
under any federal or state statutes or laws, including but not limited to Environmental Laws.
Indemnitor further waives all remedies (including those which may be available under the Civil
Rights Act) which are available to it for the violations of any of the terms of this Agreement,
including but not limited to the equitable remedy of specific performance, and agrees not to seek
injunctive relief of any sort. Indemnitor covenants not to sue the Village and/or Village Affiliates
for a violation of any provision or terms of this Agreement.
As the pavement in the Right -of -Way may be considered an engineered barrier, the
Indemnitor agrees to reimburse the Village for maintenance activities requested by Indemnitor in
writing in order to maintain it as a barrier. The Village does not agree to perform maintenance of
the Right -of -Way, nor does it agree that the Right -of -Way will always remain a Village highway
or that it will maintain the Right -of -Way as an engineered barrier. In the event that the Right -of -
Way will no longer remain a Village highway Right -of -Way, Indemnitor shall take all steps
necessary to have the Illinois Environmental Protection Agency issue a new no further rernediation
determination to reflect there is no longer a need for the Highway Authority Agreement. This
Environmental Indemnity Agreement does not limit the Village's ability to construct, reconstruct.,
demolish, improve, grade, excavate, repair, maintain and operate the Right -of -Way for any lawful
purpose, nor to allow others to use or do work within the Right -of -Way boundaries.
3. Indemnitor on behalf of itself, its successors and assigns does hereby covenant and
agree, at its sole cost and expense, to indemnify, defend and hold the Village and the Village's
former, current and future officials, trustees, officers, servants, employees, agents, contractors,
successors and assigns (collectively "Village Affiliates"), both in their capacities as Village
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representatives and as individuals, harmless from and against any loss, actions, responsibilities,
obligations, liability, damage (whether direct or consequential), expenses, claims (whether
asserted or unasserted, direct or indirect, existing or inchoate, known or unknown, having arisen
or to arise in the future), penalties, fines, injunctions, suits (including but not limited to suits
alleging or related to personal injury and/or death), proceedings, disbursements or expenses
(including, without limitation, attorneys' and experts' fees and disbursements and court costs)
(collectively, the "Liabilities"), arising under or relating to any Environmental Laws (as defined
below), or any other Liabilities which may be incurred by or asserted against any of the Village
Affiliates resulting or arising from, alleged to arise from, or caused by, 'in whole or 'in part, from
the presence of Hazardous Material (as defined below) on, in or from the Indemnitor's Property
(including the groundwater thereunder) and/or any condition of any property (including
groundwater) or surface water alleged to have been caused by the migration, transportation,, release
or threatened release of Hazardous Materials on or from the Indemnitor's Property.
Indemnitor shall assume the expense of defending all suits, administrative proceedings and
disputes of any description with all persons, entities, political subdivisions or government agencies
arising out of the matters to be indemnified under this Agreement. In the event that the Village or
I ny of the Village Affiliates is/are named as a defendant(s) in any lawsuit arising out of the matters
to be indemnified under this Agreement, the Village and/or any of the Village Affiliates shall have
the right to choose the attorney(s) who represent(s) them in said lawsuit, and the reasonable costs,
expenses and fees associated with said attorney(s) in relation to said lawsuit shall be paid by
Indemnitor pursuant to the indemnification provisions herein. Indemnitor shall pay, promptly
upon entry, any nonappealable order, judgment or other final resolution of any claim or dispute
arising out of the matters to be indemnified under this Agreement and shall pay promptly when
due any fines, penalties or agreed settlements arising out of the matters to be indemnified under
this Agreement. In the event that such payment is not made, the Village or any Village Affiliate,
at their sole discretion, may proceed to file suit against the Indemnitor to compel such payment.
Indemnitor also agrees that it will not settle or compromise any action, suit or proceeding covered
under this Section 3 without the Village's prior written consent, which consent shall not be
unreasonably withheld.
For purposes of this Agreement, "Hazardous Materials" means and includes Compounds
of Concern., chemicals known or suspected to cause cancer or reproductive toxicity, pollutants,
effluents, contaminants,, emissions or related materials, and any items defined as hazardous, special
or toxic materials, substances or waste under any Environmental Law, or any material which shall
be removed from property located within the Village of Mount Prospect pursuant to any
administrative order or enforcement proceeding or in order to place said property in a condition
thIt is suitable for ordinary use. Hazardous Materials shall include each and every element,
compound, chemical mixture, contaminant, pollutant,, material waste or other substance which 'is
defined, determined or identified as hazardous or toxic under Environmental Laws or the release
of which is regulated under Environmental Laws. "Environmental Laws" collectively means and
includes any present and future local, state, federal or international law, statute, ordinance, order,
decree, rule, regulation or treaty relatin to vublic health, safety or the environment (including
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those laws relating to releases, discharges, emissions or disposals to air, water, land or
groundwater, to the withdrawal or use of groundwater, to the use, handling, storage, disposal,
treatment,, transportation or management of Hazardous Materials) including, without limitation,
the Resource Conservation and Recovery Act, as amended
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the Comprehensive Environmental Response, Compensation and Liability Act ("CER.CLA" ), 42
U.S.C. §96019+et_ .. as amended by the Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et sect., the Clean Water
Act, 33 U.S.C. §1251, et secs, the Clean Air Act, as amended, 42 U.S.C. §7401, , the Toxic
Substances Control Act, 15 U.S.C. §26011 et sem, the Safe Drinking Water Act, 42 U.S.C. §300f,
et sM., the Occupational Safety and Health Act, 29 U.S.C. §655, et secs, the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. § 136, et seq., the National Environmental Policy Act, 42
U.S.C. §4321, et seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
§110019 , and the Illinois Environmental Protection Act, and the amendments, regulations,
orders, decrees, pen-nits, licenses or deed restrictions now or hereafter promulgated thereunder.
In addition to the indemnity provided above, if the Village or Village Affiliates encounter
any soil or groundwater impacted by Hazardous Materials while working in, on or under or near
the HAA Area or encounter Hazardous Materials migrating from Indemnitor's Property,, the
Village has the right to remove contaminated soil or groundwater from the area in which it is
working and intends to do work and to dispose of them as it deems appropriate not inconsistent
with applicable Environmental Laws. If Hazardous Materials are found anywhere within the
boundaries of the proposed HAA Area, there is a rebuttable presumption that the Hazardous
Materials migrated from and are attributable to the Indemnitor's Property.
Prior to taking actions to remove, move or remediate soils or groundwater impacted by
Hazardous Materials, unless there is an immediate threat to the health or safety of any 'Individual,
the environment or the public, or unless there is an immediate need to perform work in order to
maintain the flow of, use of, or traffic in the _HAA Area due to an obstruction or structural condition
of the roadway or pavement (including, but not limited to buckling, heaving or cracking of the
roadway surface or subsurface), the Village will endeavor to give the Indemnitor reasonable notice
that it intends to perform work in the HAA Area that may involve the moving, removing or
remediation of soils and/or groundwater impacted by Hazardous Materials. Failure to give notice,
however, is not a violation or breach of this Agreement. The removal or disposal shall be based
upon the site investigation (which may be modified by field conditions during excavation), which
Indemnitor may review or may perform, if requested to do so by the Village. If practicable, as
determined by the Village, the Village may request Indemnitor to remove and dispose of the
contaminated soil and/or groundwater necessary for the Village's work in advance of that work.
In any event, Indemnitor shall reimburse the reasonable costs incurred by the Village to perform
the site investigation and to transport and dispose of any contaminated soil or groundwater, which
costs shall be reasonably documented. The parties -understand and agree that the Village's soil and
groundwater removal will be in conjunction and/or associated with other work being done by the
Village in, on, under or near the Indemnitor's Property, and part of the purpose of this paragraph
is that if Village Affiliate encounters contaminated soil and/or groundwater while working on its
utilities, or on a municipal project or otherwise, it. will not be responsible in any way for the cost
associated with encountering, removing and/or disposing of the contaminated soil and/or
groundwater. In addition, it is specifically understood and agreed between the parties that the
Village Affiliate will not be identified at any time, in any place, document or manifest as the owner,
generator or transporter of contaminated soil or groundwater taken from Indemnitor's Property. If
asked, Indemnitor will cooperate with the Village Affiliate in the removal and disposal of such
soil and groundwater and will sign all necessary documents and manifests for the proper
transportation and disposal of the soil and/or groundwater.
I. This Agreement is intended by the parties hereto to be limited to claims, costs, expenses,
causes of action, penalties, Liabilities, losses and damages actually sustained and incurred by the
Village Affiliates or for which the Village Affiliates are found to be legally liable that arise as a
consequence of Hazardous Materials that were released or alleged to be released into the
environment from the Indemnitor's Property by Indemnitor's prior operations.
5. If requested by the Village, Indemnitor shall reasonably deliver to the Village any and
all records, documents (including writings, drawings, graphs, charts, photographs, phone records,
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and other data compilations from which information can be obtained, translated if necessary,
through detection devices into reasonably usable form), or reports of any kind (including all
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'tten, printed, recorded or graphic matter however roduced or reproduced and all copies, drafts
wri p
and versions thereof not identical in each respect to the original) which relate or refer (which
means, in addition to their customary and usual meaning, assess or assessing, concern or
concerning, constitute or constituting, describe or describing, discuss or discussing, embody or
embodying, evidence or evidencing, mention or mentioning and reflect or reflecting) to
environmental matters and/or conditions associated with the Indemnitor's Property (Including the
groundwater thereunder), including but not limited to written reports or a site assessment,
environmental audits, soil test reports, water test reports, laboratory analysis and documents,
reports or writings relating or referring to the Indemnitor's Property provided, however, that
nothing in this paragraph shall require the Indemnitor to deliver to the Village those
communications and documents that are encompassed by the attorney-client privilege and/or the
attorney work product doctrine.
6. Any notice required or permitted to be given to either party shall be deemed to be
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received by such party (i) three (3) days after deposit in the United States Registered or Certified
Mail Return Recei t Requested or (ii) one (1) business day after deposit with a nationally
ip
recognized overnight delivery service guaranteeing next business day delivery, or (iii) upon
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personal delivery to the party to whom addressed provided that a receipt of such delivery is
obtamed, or (I*v) on the same business day as transmitted and confirmed by telecopy provided that
a confirmation copy is concurrently deposited in United States Certified or Registered Mail, Return
Receipt Requested. Such notices shall be addressed to the parties at the following addresses:
If to Indemnitor-, Graham Enterprises, Inc.
Attn: John Graham
President
750 Bunker Court, Suite 100
Vernon Hills, Illinois 60061
If to, the Vi'lla, e: Village of Mount Prospect
Village Hall
50 South Emerson Street
Mount Prospect, Illinois 60056
Attn: Village President
and with a copy to-, Klein, Thorpe and Jenkins, Ltd.
20 North Wacker Drive, Suite 1660
Chicago, Illinois 60606
Attn: Dennis G. Walsh
Facsimile No.: ('708) 349-1506
or to the parties at such other addresses or telecopy numbers as they may designate by notice to
the other party as herein provided.
7. This Agreement has been made and delivered in Illinois and shall be construed
according to and governed by the internal laws of the State of Illinois without regard to its conflict
of law rules. If any provision hereof shall be held invalid, prohibited or unenforceable under any
applicable laws of any applicable jurisdiction, such invalidity, prohibition or unenforceability shall
be limited to such provision and shall not affect or invalidate the other provisions hereof or affect
the validity or enforceability of such provision in any other jurisdiction, and to that extent, the
provisions hereof are severable. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law.
8. Failure of the Village to require performance of any provision of this Agreement shall
not affect the Village's right to require full performance thereof at any time thereafter, and the
waiver by the Village of a breach of any provision of this Agreement shall not constitute or be
deemed a waiver of a similar breach in the future, or any other breach, or nullify the effectiveness
of such provisions of this Agreement. The rights and remedies of the Village through this
Agreement are cumulative. The exercise or use of any one or more thereof shall not bar the Village
from exercise or use of any other right or remedy provided herein or otherwise provided by law,
nor shall exercise or use of any right or remedy by the Village waive any other right or remedy.
The parties are aware of 42 U.S.C. §9607(e), and waive any rights they may otherwise have to
assert that such statute does not permit, or renders invalid, the waivers or indemnity provisions
contained in this Agreement.
9. This Agreement shall be binding upon the Indemnitor and the Village and their
successors and assigns for so long as any Highway Authority Agreement and Limited Groundwater
Ordinance is required by Indemnitor as an institutional control as defined by the Environmental
Laws. Provided, however, Indemnitor's duty to indemnify Village shall survive if the Liabilities
are incurred during the effective period of the Highway Authority Agreement and Limited
Groundwater Ordinance. No transfer of Indemnitor's or the Village's rights or obligations
hereunder shall be made without the prior written approval of the Village's Board of Trustees,
which approval shall be within their reasonable discretion.
10. This Agreement constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof. This Agreement may not be amended, modified, revised, supplemented
or restated except by a writing signed by each of the parties hereto. In construing this Agreement
or determining the rights of the parties hereunder, no party shall be deemed to have drafted or
created this Agreement or any portion thereof.
11. Indemnitor will pay and discharge all reasonable costs, attorney's fees and expenses
that shall be made and incurred by the Village in enforcing the covenants and agreements of this
Agreement.
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12. The executing representatives of the parties to this Agreement represent and certify
that they are fully authorized to enter into the terms and conditions of this Agreement and to
execute and legally bind that party to it.
IN WITNESS WHEREOF, the parties have executed this Environmental Indemnity
Agreement as of the day, month and year first above written.
Village of Mount Prospect
By. . .................................
Name:
Title:
11
Title:
a
ORDINANCE NUMBER
A LIMITED AREA GROUNDWATER ORDINANCE PROHIBITING THE USE OF
GROUNDWATER AS A POTABLE WATER SUPPLY BY THE INSTALLATION
OR USE OF POTABLE WATER SUPPLY WELLS OR BY ANY OTHER
METHOD IN A DESIGNATED AREA OF THE VILLAGE OF MOUNT
PROSPECT, ILLINOIS
WHEREAS, certain properties in the Village of Mount Prospect, Illinois
have been used over a period of time for commercial/industrial purposes; and
WHEREAS, because of said use, concentrations of certain chemical
constituents in the groundwater beneath the Village may exceed Class I
groundwater quality standards for potable resource groundwater as set forth in
35 Illinois Administrative Code 620 or Tier 1 remediation objectives as set forth in
35 Illinois Administrative Code 742; and
WHEREAS, the Village of Mount Prospect desires to limit potential threats
to human health from groundwater contamination while facilitating the
redevelopment and productive use of properties in the Village of Mount Prospect
within that area depicted on Exhibit A attached hereto and made a part hereof;
BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS:
Section One. Use of groundwater as a potable water supply prohibited.
The use or attempt to use as a potable water supply groundwater
from within the corporate limits of the Village of Mount Prospect in
that area depicted and described on Exhibit A, as a potable water
supply, by the installation or drilling of wells or by any other method
is hereby prohibited. This prohibition includes the Village of Mount
Prospect.
Section Two. Penalties.
Any person violating the provisions of this ordinance shall be
subject to a fine of up to $750-00 for each violation.
Section Three. Definitions.,
"Person" is any individual, partnership, co -partnership, firm,
company, limited liability company, corporation, association, joint
stock company, trust, estate, political subdivision, or any other legal
entity, or their legal representatives, agents or assigns.
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"Potable water" is any water used for human or domestic
consumption, including, but not limited to, water used for drinking,
bathing, swimming, washing dishes, or preparing foods.
Section Four. Repealer,,
All ordinances or parts of ordinances in conflict with this ordinance
are hereby repealed insofar as they are in conflict with this
ordinance.
Section Five. Severability.
If any provision of this ordinance or its application to any person or
under any circumstances is adjudged invalid, such adjudication
shall not affect the validity of the ordinance as a whole or of any
portion not adjudicated invalid.
Section Six. Effective date.
This ordinance shall be in full force and effect from and after its
passage, approval and publication as required by law.
NAYS:
ABSENT:
PASSED AND APPROVED this I day of 2020
Arlene A. Juracek, Village President
ATTEST:
Karen M. Agoranos, Village Clerk
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HIGHWAY AUTHORITY AGREEMENT
This Agreement is entered into this day of 5 20_ pursuant to 35
Ill. Adm. Code 742.1020 by and between the (1) Graham Enterprise, Inc.
(""Owner/Operator"") and (2) Village of Mt. Prospect, Illinois (""Highway Authority"),
collectively known as the "Parties."
WHEREAS, Graham Enterprises, Inc. is the owner or operator of one or more
leaking underground storage tanks presently or formerly located at 606 West Northwest
Highway, Mt. Prospect, Illinois (the "s1*teff). 1
WHEREAS, as a result of one or more releases of contaminants at the above
referenced USTs "(the "Release"), soil and/or groundwater contamination at the Site
exceeds the Tier I residential remediation objectives of 35 111. Adm. Code 742:
WHEREAS, the soil and/or groundwater contamination exceeding Tier I
residential remediation objectives extends or may extend into the Highway
Authority's right-of-way:
WHEREAS, the Owner/Operator is conducting corrective action 'in response to
the Release;
WHEREAS, the Parties desire to prevent groundwater beneath the Highway
Authority's right-of-way that exceeds Tier I remediation objectives from use as a supply
of potable or domestic water and to limit access to soil within the right-of-way that
exceeds Tier I residential remediation objectives so that human health and the
environment are protected during and after any access;
NOW, THEREFORE, the Parties agree as follows:
L The recitals set forth above are incorporated by reference as if fully set forth
herein.
2. The Illinois Emergency Management Agency has assigned Incident Number
20041727 to the Release.
3. Attached as Exhibit A are scaled maps prepared by the Owner/Operator that
shows the Site and surrounding area and delineates the current and estimated
future extent of soil and groundwater contamination above the applicable
Tier I residential remediation objectives as a result of the Release.
4. Attached as Exhibit B are tables prepared by the Owner/Operator that lists
each contaminant of concern that exceeds its Tier I residential remediation
objective, its Tier I residential remediation objective and its concentrations
w *thin the zone where Tier I residential remediation objectives are exceeded.
w*
thin
14
The locations of the concentrations listed in Exhibit B are identified on the
maps in Exhibit A.
5. Attached as Exhibit C is a scaled map prepared by the Owner/Operator
showing the area of the Highway Authority's right-of-way that is governed by
this agreement ("Right -of -Way"). Because Exhibit C is not a surveyed plat,
the Right -of -Way boundary may be an approximation of the actual Right -of -
Way lines.
6. The Highway Authority stipulates it has jurisdiction over the Right -of -Way
that gives it sole control over the use of the groundwater and access to the soil
located within or beneath the Right -of -Way.
7. The Highway Authority agrees to prohibit within the Right -of -Way all potable
and domestic uses of groundwater exceeding Tier I residential remediation
objectives.
8. The Highway Authority further agrees to limit access by itself and others to
soil within the Right -of Way exceeding Tier I residential remediation
objectives. Access shall be allowed only if human health (including worker
safety) and the environment are protected during and after any access. The
Highway Authority may construct, reconstruct, improve, repair, maintain and
operate a highway upon the Right -of -Way, or allow others to do the same by
permit. In addition, the Highway Authority and others using or working in the
Right -of -Way under permit have the right to remove soil or groundwater from
the Right -of -Way and dispose of the same in accordance with applicable
environmental laws and regulations. The Highway Authority agrees to issue
all permits for work in the Right -of -Way, and make all existing permits for
work in the Right -of -Way, subject to the following or a substantially similar
condition:
As a condition of this permit the permittee shall request the office issuing this permit to
identify sites in the Right -of -Way where a Highway Authority Agreement governs access
to soil that exceeds the Tier I residential remediation objectives of 35 111. Adm. Code
742. The permittee shall take all measures necessary to protect human health (including
worker safety) and the environment during and after any access to such soil.
9. This agreement shall be referenced in the Agency's no further remediation
determination issued for the Release.
10. The Agency shall be notified of any transfer of jurisdiction over the Right -of -
Way at least 30 days prior to the date the transfer takes effect. This agreement
shall be null and void upon the transfer unless the transferee agrees to be
bound by this agreement as if the transferee were an original party to this
agreement. The transferee's agreement to be bound by the terms of this
agreement shall be memorialized at the time of transfer in a writing ("Rider")
I)
15
that references this Highway Authority Agreement and is signed by the
Highway Authority, or subsequent transferor, and the transferee.
11. This agreement shall become effective on the date the Agency issues a no
further remediation determination for the Release. It shall remain effective
until the Right -of -Way is demonstrated to be suitable for unrestricted use and
the Agency issues a new no further remediation determination to reflect there
is no longer need for this agreement, or until the agreement is otherwise
terminated or voided.
1-2. In addition to any other remedies that may be available, the Agency may
bring suit to enforce the terms of this agreement or may, in its sole discretion,
declare this agreement null and void if any of the Parties or any transferee
violates any term of this agreement. The Parties or transferee shall be notified
in writing of any such declaration.
13. This agreement shall be null and void if a court of competent jurisdiction
strikes down any part or provision of the agreement.
14. This agreement supersedes any prior written or oral agreements or
understandings between the Parties on the subject matter addressed herein. It
may be altered, modified or amended only upon the written consent and
agreement of the Parties.
15. Any notices or other correspondence regarding this agreement shall be sent to
the Parties at following addresses:
Manager, Division of Remediation Management
Bureau of Land
Illinois Environmental Protection Agency
P.O. Box 19276
Springfield, Illinois 62974-9276
Village of Mt. Prospect
Village Hall
50 South Emerson Street
Mt. Prospect, Illinois 60056
(Phone): (,4'7 392-6000
ATTN,-, Village President
91
Graham Enterprises, Inc.
Attn: John Graham
President
750 Bunker Court, Suite 100
Vernon Hills, Illinois 60061
im
IN WITNESS WHEREOF, the Parties have caused this agreement to be signed by
their duly authorized representatives.
By: Arlene A. Juracek, Mayor
Date: 2020 By: Karen Agoranos, Village Clerk
Date: . . . . . . . ......... -172020
51
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Graham Enterprise, Inc.
606 West Northwest Highway
Mount Prospect, Cook County, Illinois
Table 1
Soil Analytical Data - BTEXIVI
MTBE = Methyl tent -butyl ether
mg/kg = milligrams per kilogram or parts per million (ppm)
<# = concentration not detected above the method detection limit
Bold = concentration exceeds the Title 35 IAC Part 742 Tier SROs
Shaded =location was resampled at a later date
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SIMON
KLEIN, THORPE AND JENKINS, LTD,,
Attorneys at Law
L. . . . . . . . ............ . ............. i"", . . ............. ..
Mr. Sean Dorsey
Director of Public Works
Village of Mount Pros•-
'" . !
Mount Prospect, IL 60051,
IN
20 N. Wacker Drive, Ste 1660
Chicago, Illinois 60606-2903
T 312 984 6400 IF 312 984 6444
DD 708-349-3888
1l!1:1i!ll1F#i Wit
61 i
15010 S. Ravinia Avenue, Ste 10
Orland Park, Illinois 60462-5353
T 708 349 3888 F 708 349 1506
7 Northpoint Drive
Streator, Illinois 61364-1159
T 815 672 3116 IF 815 672 0738
www.ktjlaw.com
Highway Authority Agreement/Groundwater Ordinance
606 W. NorthwesLffig M11t nois
ct, Illi
Graham Enterprise, Inc. ("Graham") is asking the Village of Mt. Prospect to adopt an
ordinance that would ban the use of groundwater wells within a certain limited area around the
s ite located at 606 W. Northwest Highway, Mt. Prospect, Illinois, so that Graham can obtain a
i
No Further Remediation Letter from the Illinois Environmental Protection Agency ("IEPA")
using the Tiered Approach to Cleanup Objectives with respect to this contaminated site. The
groundwater restriction would be in effect in the area found on the figure attached to the draft
ordinance which is enclosed.
From a legal standpoint, 'if the Village of Mt. Prospect was to adopt an ordinance that
would prohibit the use of groundwater as a potable water supply by the installation or drilling of
new wells by all parties, including the Village itself, the regulations do not call for the Village to
take any further action but, rather, places the burden on Graham for monitoring the Village's
activities with respect to this ordinance. Simply put, from a legal perspective, the Village would
not be required to'lake any further steps other than to adopt (and presumably not modify or
rescind) the groundwater ordinance. As noted however, no new wells, inclu Villa2e wells,
could be placed in the groundwater ordinance area.
Protection against future claims and contamination is provided to the Village through
Environmental Indemnity Agreement which is enclosed. 1
The Village should also keep in mind that by adopting the groundwater ordinance, the
Village of Mt. Prospect will aid in allowing the contamination to remain in place not only on the
Graham property but also on any public and/or private property within the Groundwater
Ordinance area. If the Village were to adopt the ordinance, Graham would be obligated only to
notify the affected property owners of the existence of the ordinance and the IEPA would not
require the approval orinvolvement of those property owners.
4536121 22
Mr. Sean Dorsey
Page 2
October 6, 2020
Graham is also asking the Village to enter into a Highway Authority Agreeme
("HAA") for this site because of the migration of soil contaminants onto the Fairview StreI
Right -of -Way adjacent to the property.
A HAA would allow contamination under the Right -of -Way to remain 'in-place. A HAA
is commonly used when contamination has migrated off private property and under a village
highway or road. These agreements are not the 'invention of the companies asking for them, but
rather, are the result of the Illinois Department of Transportation (IDOT) getting involved in the
Tiered Approach to Corrective Action Objectives (TACO) rule chane which required the
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Illinois Pollution Control Board to consider land use controls in determining risk to human health
from contaminated soil and groundwater. As a result of IDOT's efforts, HAAs became one of
the land use controls reconized a
'in TACO, nd TDOT has signed literally hundreds of the
gm.
IDOT has its own HAA form but the amendment to the TACO regulations now requir
that municipal HAAs submitted to the IEPA match the form and contain the same substance a.
the model HAA set forth in Appendix D of the regulations which provides 'in pertinent part a
follows: I
1. The identity of the owner or operator of the leaking underground storage tanks;
2. The owner of the property where the leaking underground storage tanks occurred;
3. That soil and/or groundwater contamination at the site exceeds Tier I residential
remediation objectives',
4. That the soil and groundwater contamination exceeding Tier I residential remediation
objectives extends or may extend under the right-of-way;
5. That the owner/operator or the property owner is conducting corrective action in
response to the release;
6. That the parties desire to prevent groundwater beneath the right-of-way that exceeds
Tier I Remediation Ob ectives from use as a supply of potable or domestic water and
j
to limit access to soil within the right-of-way that exceeds Tier I residential
remediation, objectives so human health and the environment are protected during any
access;
7. A map that shows the site and surrounding area that delineates the current and
estimated future extent of soil and groundwater contamination above applicable Tier
I residential remediation. objectives as a result of the release is attached as an exhibit;
4536121 23
IMr. Sean Dorsey
Page 3
October 6, 2020
8. A table prepared by the owner/operator that lists each contaminant that exceeds the
remedial objective as attached as an exhibit-,
9. A map prepared by the owner showing the area of the HAA's right-of-way that is
governed by the agreement is attached as an exhibit. The municipality stipulates it
has jurisdiction over the right-of-way and that it gives sole control over the use of the
groundwater and access to soil located within or beneath the right-of-way;
10. The municipality agrees to prohibit within the right-of-way all potable and domestic
uses of groundwater exceeding Tier I residential remediation objectives;
1. The municipality agrees to limit access by 'Itself and others to soil within the right-of-
way which exceeds Tier I residential remediation objectives. Access will be allowed
only if human health (including worker safety) and the environment are protected
during and after any access. The municipality may construct, reconstruct, improve,
repair, maintain and operate a highway or allow others to do so by pen -nit (although
the HAA does not specifically state that utilities can be in the right-of-way where a
HAA is in place, it is presumed that existing and future utilities can be in such right-
of-ways). In addition, the municipality and others using or working in the right-of-
way under permit have the right to remove soil and groundwater from the right-of-
way and dispose of the same in accordance with applicable environmental laws and
regulations. The municipality agrees to issue all permits for the work in the right-of-
way and make all existing permits for work in the right-of-way subject to the
following or of substantially similar condition: "As a condition of this permit, the
permitee shall request the office issuing this permit to identify sites in the Right -of -
Way where a Highway Authority Agreement governs access to soil that exceeds the
Tier I residential remediation objectives of 35 Ill.Adm. Code 742. The permitee shall
take all measures necessary to protect human health (including worker safety) and the
environment during and after any access to such soil.";
12. The IEPA shall be notified of any transfer of Jurisdiction over the Right -of -Way at
least 30 days prior to the date the transfer takes effect. This agreement shall be null
and void upon the transfer unless the transferee agrees to be bound by this agreement
as if the transferee were an original party to this agreement. The transferee's
agreement to be bound by the terms of this agreement shall be memorialized at the
time of transfer in a writing ("Rider") that references the HAA and is signed by the
municipality or a subsequent transferor and the transferee. The HAA becomes
effective on the date the IEPA issues a no further remediation determination for the
release(s) on the site. It remains in effect until the Right -of -Way is demonstrated to
4536121-1-1 24
Mr. Sean Dorsey
Page 4
October 6. 2020
be suitable for unrestricted use and the IEPA 'issues a new no further remediation
determination letter to reflect there is no longer a need for the HAA or until the
agreement 'is otherwise terminated or voided;
13. In addition to other remedies that may be available, the IEPA may bring suit to
enforce the terms of the HAA or may, 'in its sole discretion, declare the HAA null and
void 'if any of the parties or the transferee violates any of the terms of theThe
parties or transferees shall be notified in writing of any such declaration. The HAA
becomes null and void 'if a court strikes down any part or provision of the HAA; and
14. The HAA supercedes any prior written or oral agreements or understandings between
the parties on the subject matter addressed in the agreement and may be altered,
modified or amended only upon the written consent and agreement of the parties. (It
0
is unclear to me what this means as it is my understanding the agency will not accept
any altered, modified or amended HAAs to act as an 'institutional control.)
Again, protection against future claims and contamination in the Fairview Street Right -of -
Way 'is provided to the Villae through the enclosed Environmental Indemnity Agreement. The
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long and the short of 'it is that a number of municipaes enter into HAAsmakes technical
sense to do so. From a legal standpoint, it resolves the liability and damage issues without going
through the expensive and uncertain process of litigating against an alleged polluter. In fact,
through this process, the Village probably will get more (i.e., protection against future claims and
contamination throuh the Indemnity Agreement) than it evea r would 'in cost recovery a
gction.
The recovery of these costs was extremely difficult before the advent of HAAs as it was nearly
impossible to prove where contamination 'in the right-of-way comes from.
Please let me know how the Villae would like to proceea
d t this point. Of course
g , if you
should have any questions, please do not hesitate to call me.
Very truly yours,
KLE',f, N� AND JENK"I'NS, LTD.
Dennis G. Walsh
4536121 25
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