HomeMy WebLinkAboutRes 49-20 Highway Authority Agreement and Environmental Indemnity Agreement with Graham EnterprisesRESOLUTION NO. 49-20
A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A HIGHWAY
AUTHORITY AGREEMENT AND ENVIRONMENTAL INDEMNITY
AGREEMENT WITH GRAHAM ENTERPRISE, INC.
WHEREAS, Graham Enterprise, Inc. was the owner of certain real property located at
606 West Northwest Highway, Mount Prospect, Illinois
("Graham Enterprise, Inc.'s Property"), which is located at the northwest comer of the
intersection of Northwest Highway and Fairview Avenue in Mount Prospect,
Cook County, Illinois; and
WHEREAS, an underground storage tank system owned by Graham Enterprise, Inc. or
its predecessor in interest, was present on Graham Enterprise, Inc.'s Property; and
WHEREAS, a release to the environment of petroleum hydrocarbons has occurred in the
past at the Graham Enterprise, Inc.'s Property. The groundwater and soil impacted by
compounds of concern extends beyond the Graham Enterprise, Inc.'s Property; and
WHEREAS, Graham Enterprise, Inc. has requested that the Village enter into a Highway
Authority Agreement ("HAA") as with respect to certain public highways adjacent to the
Graham Enterprise, Inc.'s Property and Graham Enterprise, Inc. seeks to enter into a
Limited Groundwater Ordinance ("LGWO") for a certain area adjacent to the Graham
Enterprise, Inc.'s Property. Protection against future claims and contamination is
provided to the Village through an Environmental Indemnity Agreement. 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; and
WHEREAS, the Corporate Authorities have determined that it is in the best interests of
the Village to execute the Highway Authority Agreement attached hereto as Exhibit A
and the Environmental Indemnity Agreement as Exhibit B.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF
TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY,
ILLINOIS, ACTING PURSUANT TO ITS HOME RULE POWERS:
SECTION 1: That the Mayor and Village Clerk are hereby authorized to execute a
Highway Authority Agreement in substantial conformity with the document attached
hereto as Exhibit A and the Mayor is hereby authorized to execute an Environmental
Indemnity Agreement in substantial conformity with the document attached hereto as
Exhibit B.
455291 ,,,,1
SECTION 2: That this Resolution shall be in full force and effect from and after its
passage and approval in the manner provided by law.
AYES: Grassi, Hatzis, Hoefert, Rogers, Saccotelli, Zadel
NAYS: None
ABSENT: None
PASSED AND APPROVED this 4th day of November, 2020.
A rl ene A J ur acek
Mayor
..............
Karen Agoranos,
Village Clerk
APPROVED this 4'h day of November, 2020.
455291_1
HIGHWAY AUTHORITY AGREEMENT
This Agreement is entered into this C( day of Mq 20ZPpursuant 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 "Site");
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:
1. 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
within the zone where Tier I residential remediation objectives are exceeded.
1
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 1 residential remediation objectives of 35 Ill. 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")
2
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.
12. 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 followink 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): (847) 392-6000
AT"TN: Village President
Owner/Operator
Graham Enterprises, Inc.
Attn: John Graham
President
750 Bunker Court, Suite 100
Vernon Hills, Illinois 60061
IN WITNESS WHEREOF, the Parties have caused this agreement to be signed by
their duly authorized representatives.
Date: 2020
ATTEST:
Date:2020
t� /
Date: R — 2020
VILLAGE OF MT. PROSPECT
..........
By: Arlen A. Juracek, Ma.
By: Karen Clerk
By: \JqA Graf
Title: President,
4
Inc.
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Graham Enterprise, Inc,
606 West Northwest Highway
Mount Prospect, Cook County, Illinois
Table 1
Salt Analytical data - BTEXM
MTBE > Methyl tart -butyl ether
mg/kg - milligrams per kilogram or parts per million (ppm)
cq a concentration not detected above the method detection limit
Bold - concentration exceeds the Title 35 IAC Pan 742 Ter SROs
Shaded - location was resemplad at a later date
Page 1 of 1
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This ENVIRONMENTAL INDEMNITY AGREEMENT is entered into as of the
day of&' U(YY?. MI
, 2020, by Graham Enterprise, Inc. ("Indemnitor") and the Village of
Mount Prospect, Cook County, Illinois (the "Village").
RECITALS
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 42 North, Range I I
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, Ethylben7ene, Toluene, Xylene and Methyl
Tertiary Butyl Ether (MTBE) 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 Ex it B ("thq-LQ)yQ 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 lri ids Anand 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").
NOW, THEREFORE, 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
duty 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 remediation
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
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
any 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 attomey(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
that 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 relating to public health, safety or the environment (including
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 ("RCRA"), 42 U.S.C. §6901, et ea.,
the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42
U.S.C. §9601, et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seg. the Glean Water
Act, 33 U.S.C. §1251, et seg. the Clean Air Act, as amended, 42 U.S.C. §7401, et seg., the Toxic
Substances Control Act, 15 U.S.C. §2601, et seg., the Safe Drinking Water Act, 42 U.S.C. §300f,
et seg., the Occupational Safety and Health Act, 29 U.S.C. §655, et seg., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. § 136, et seg., the National Environmental Policy Act, 42
U.S.C. §4321, �e , the Emergency Planning and Community Right -to -Know Act, 42 U.S.C.
§11001, et seg., and the Illinois Environmental Protection Act, and the amendments, regulations,
orders, decrees, permits, 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.
4. 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,
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
written, printed, recorded or graphic matter however produced or reproduced and all copies, drafts
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
received by such patty (i) three (3) days after deposit in the United States Registered or Certified
Mail, Return Receipt Requested, or (ii) one (1) business day after deposit with a nationally
recognized overnight delivery service guaranteeing next business day delivery, or (iii) upon
personal delivery to the party to whom addressed provided that a receipt of such delivery is
obtained, or (iv) 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:
Graham Enterprises, Inc.
Attn: John Graham
President
750 Bunker Court, Suite 100
Vernon Hills, Illinois 60061
If Ig thq Yilla -
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 aegwire hall performance .thereof at any time thereafter, and the-
waiver
he .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.
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
Name: 1
Title: /`74/ 16 a
Graham Enterprise, ,
By:
Name:
Title: