HomeMy WebLinkAboutOrd 5628 05/01/2007
ORDINANCE NO. 5628
AN ORDINANCE PROHIBITING THE USE OF GROUNDWATER AS A
POTABLE WATER SUPPLY BY THE INSTALLATION OR USE OF PORTABLE
WATER SUPPLY WELLS OR BY ANY OTHER METHOD
PASSED AND APPROVED BY
THE PRESIDENT AND BOARD OF TRUSTEES
THE 1st DAY OF MAY 2007
Published in pamphlet form by
authority of the corporate
authorities of the Village of
Mount Prospect, Illinois,
the 2nd day of May 2007.
ORDINANCE NO. 5628
AN ORDINANCE PROHIBITING THE USE OF GROUNDWATER AS
A POTABLE WATER SUPPLY BY THE INSTALLATION OR USE
OF POT ABLE WATER SUPPLY WELLS OR BY ANY OTHER METHOD
WHEREAS, the Village of Mount Prospect is a home rule unit pursuant to the
provisions of Article VII, Section 6 of the Constitution of the State of Illinois; and
WHEREAS, the Village has authority and power to regulate for the protection of the
public health and welfare; and
WHEREAS, the President and Board of Trustees of the Village of Mount Prospect have
found that the property legally described below is located in the Village of Mount Prospect and
has been used over a period of time for commerciallindustrial purposes; and
WHEREAS, because of said use, concentrations of certain chemical constituents in the
groundwater in the vicinity of the said property may exceed Class I groundwater quality
standards for potable resource groundwater as set forth in 35 Illinois Administrative Code 620 or
Tier 1 residential 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 the properties that are or may be impacted with the said chemical constituents;
NOW, THEREFORE, Be It Ordained by the President and Board of Trustees of the
Village of Mount Prospect, Cook County, Illinois, as follows:
SECTION 1: Use of Groundwater as a Potable Water Supply Prohibited.
Except for uses or methods in existence before the effective date of this Ordinance, the
use or attempt to use as a potable water supply groundwater from within a 500 foot radius of the
property legally described below by the installation or drilling of wells or by any other method is
hereby prohibited, including points of withdrawal by the Village of Mount Prospect:
That part of Lot 4 in Linneman's Division of the South 3/4 of the East half of the
North East quarter and of the West half of the North East quarter of Section 23,
Township 41 North, Range 11, East of the Third Principal Meridian and the
South 477.78 feet of the West half of the South East quarter of Section 14,
Township 41 North, Lange 11, East of the Third Principal Meridian, described as
follows:
Beginning at the South East comer of said Lot 4, being also the South East comer
of the said North East quarter of Section 23, and 9.22 feet North of the center line
of Algonquin Road: thence North along the East line of said Lot 4 and the East
line of said North East quarter for a distance of 240.78 feet; thence West along a
line which is 200 feet (as measured along said East line) North of and parallel
with the North line of Algonquin Road, as dedicated by document record in the
Recorder's Office of Cook County, Illinois, as No. 11195787, for a distance of
250 feet; thence South parallel with the East line of Lot 4 for a distance of 239.63
feet to a point on the South line of said Lot 4, which point is 39.63 feet South of
the North line and 10.37 feet North of the center line of Algonquin Road; thence
East along the South line of Lot 4 and the South line of the North East quarter of
said Section 23, for a distance of 250 feet to the place of beginning, (excepting
from the above described premises that part of Elmhurst Road and Algonquin
Road included in said dedication recorded as document 11195787), all in Cook
County, Illinois.
PIN: 08-23-203-020-0000
COMMONLY KNOWN AS: 1798 S. Elmhurst Rd., Mt. Prospect, IL
SECTION 2: Repealer.
All ordinances or parts of ordinances in conflict with this Ordinance are herein repealed
insofar as they are in conflict with this Ordinance.
SECTION 3: 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 ofthe Ordinance
as a whole or of any portion not adjudged invalid.
SECTION 4: Effective Date.
This Ordinance shall be in full force and effect from and after its passage, approval and
publication in pamphlet form in the newspaper as required by law.
Ayes: Corcoran, Hoefert, Korn, Lohrstorfer, Skowron, Zadel
Nays: None
Absent: None
Passed and Approved this 15t day of May, 2007.
~ J:ttf~
Irvana K. Wilks, Mayor
Attest:
iManage: 186136_1
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LIMITED ENVIRONMENTAL INDEMNITY AGREEMENT
This LIMITED ENVIRONMENTAL INDEMNITY AGREEMENT is entered into as of the
day of April, 2007, by Equilon Enterprises LLC d/b/a Shell Oil Products US ("Indemnitor")
and the Village of Mount Prospect, Cook County, Illinois (the "Village").
RECIT ALS
A. WHEREAS, Indemnitor is the owner of certain real property located at 1798 S.
Elmhurst, Mount Prospect, Illinois ("Indemnitor's Property") and legally described in Exhibit A;
and
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. Used/waste oil and hydraulic oil
may be present on Indemnitor's Property. (All of the previously mentioned compounds 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 groundwater at the Indemnitor's Property contains detectable concentrations of
Compounds of Concern. The groundwater impacted by Compounds of Concern extends beyond the
Indemnitor's Property. The Illinois Emergency Management Agency has assigned incident number
20030423 to the release at the Indemnitor's Property; and
D. WHEREAS, Indemnitor desires to limit any potential threat to human health from
groundwater impacted with the Compounds of Concern and has requested that the Village enact a
groundwater ordinance ("Groundwater Ordinance") that prohibits the installation of new
groundwater wells for potable water supply in an area adjacent to and including the Indemnitor's
Property. The proposed Groundwater Ordinance is attached hereto as Exhibit B. The area subject
to this Agreement shall be the area in, under and adjacent to Indemnitor's Property which is
described within the Groundwater Ordinance ("Groundwater Ordinance 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 Limited Environmental Indemnity Agreement ("Agreement") is not binding upon
the Village 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.
2. The Village agrees that it will adopt the Groundwater Ordinance provided, however, that
if the Village does not adopt the Groundwater Ordinance or rescinds the Groundwater Ordinance,
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 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 related to the subject matter of this Agreement. 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.
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, 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 attomey(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
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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 with 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 or those chemicals or substances which are or were commonly used at Indemnitor's
Property which are defined as hazardous, special or toxic materials, substances or waste under any
Environmental Law. "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 D.S.C. S6901, et seq., the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. S9601, et seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Hazardous Materials
Transportation Act, 49 D.S.C. S1801, et seq., the Clean Water Act, 33 D.S.C. S1251, et seq., the
Clean Air Act, as amended, 42 D.S.C. S7401, et seq., the Toxic Substances Control Act, 15 U.S.C.
S2601, et seq., the Safe Drinking Water Act, 42 D.S.C. S300f, et seq., the Occupational Safety and
Health Act, 29 U.S.c. S655, et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. S136, et seq., the National Environmental Policy Act, 42 D.S.C. S4321, et seq., the
Emergency Planning and Community Right-to-Know Act, 42 D.S.C. SllOOl, et seq., 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
Hazardous Materials while working in, on or under or near the Indemnitor's Property (including but
not limited to such areas as within municipal easements and/or Right-of-Ways) or encounter
Hazardous Materials migrating from Indemnitor's Property, the Village has the right to remove
contaminated soil or groundwater above Tier 1 residential remediation objectives (as set forth in the
Tiered Approach to Cleanup Objectives, Title 35, Part 742) from the area it is working and intends
to do work and to dispose of them as it deems appropriate not inconsistent with applicable
Environmental Laws so as to avoid causing a further release of the Hazardous Materials and to
protect human health and the environment. If Hazardous Materials are found anywhere within the
boundaries of the proposed Groundwater Ordinance, there is a presumption that the Hazardous
Materials migrated from and are attributable to the Indemnitor's Property.
Prior to taking any action noted above, the Village will first give Indemnitor written notice,
unless there is an emergency or an immediate threat to the health or safety to any individual or to
the public, that it intends to perform a site investigation and remove or dispose of contaminated soil
or groundwater to the extent necessary for its work. Failure to give notice is not a violation 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
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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 dispose of any
contaminated soil or groundwater. 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 the Village 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 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 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 within the Groundwater Ordinance Area.
5. If requested by the Village, Indemnitor shall immediately deliver to the Village any and
all records, documents (including writings, drawings, graphs, charts, photographs, phono 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) environmental matters
and/or conditions associated directly or indirectly 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 party (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
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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:
John Robbins
Shell Oil Products US
603 E. Diehl Road - Suite 103
N aperville, Illinois 60563
Facsimile No.: (281) 212-3256
If to the Village:
Village of Mount Prospect
50 S. Emerson Street
Mount Prospect, IL 60056
Attn: Michael Janonis, Village Manager
Facsimile No.: (847) 392-6022
and with a copy to:
Klein, Thorpe and Jenkins, Ltd.
20 North Wacker Drive - Suite 1660
Chicago, Illinois 60606-2903
Attn: Dennis G. Walsh
Facsimile No.: (312) 984-6444
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 ofthe 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 of this Agreement are
cumulative. The exercise or use of anyone 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. s9607(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.
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9. This Agreement shall be binding upon the Indemnitor and the successors and assigns for
so long as the 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 Groundwater
Ordinance. No transfer of Indemnitor's rights or obligations hereunder shall be made without the
prior written approval of the Village's Board of Trustees, which approval shall be with 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 ofthis Agreement and to execute and
legally bind that party to it.
IN WITNESS WHEREOF, the parties have executed this Limited Environmental Indemnity
Agreement as ofthe day, month and year first above written.
BY:~b. JIJ,~
Name: JryIAM.-~, \,/; 'k-~
lIf~
EQUILON ENTERPRISES LLC d/b/a
SHELL OIL PRODUCTS US
By: ~~
Name: n Robbins
VILLAGE OF MOUNT PROSPECT
Title:
Title: Project Manager
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