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HomeMy WebLinkAbout6.2 A 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 630 WEST RAND ROAD.Mr�GauC �'d'+rt;�iect Subject A motion to waive the rule requiring two readings of an ordinance and adopt ORDINANCE PROHIBITING THE USE OF WN i Rkmf.:k 19 Meeting April 5, 2022 - REGULAR MEETING OF THE MOUNT PROSPECT VILLAGE BOARD - Fiscal Impact false Dollar Amount N/A. Budget Source N/A. Category CONSENT AGENDA Type Consent Information Vequity LLC, (Vequity) the owners of the commercial property at 630 W. Rand Road, have petitioned the Village for a groundwater use restriction ordinance. The requested ordinance would restrict the use of groundwater as a drinking water source near the site. Vequity seeks these accommodations to satisfy Illinois Environmental Protection Agency (IEPA) requirements for a "No Further Remediation" (NFR) letter. An NFR letter will formally resolve a leaking underground storage tank (LUST) incident associated with the site's historic use as a gasoline filling station. The Village Attorney, and leaking underground storage tank advisors, K -Plus Consultants, have reviewed submitted documents and recommend execution an environmental indemnity agreement that would safeguard the Village against potential incremental costs associated with the groundwater use restriction ordinance or any contamination left in place in public rights-of-way. The ordinance requested by Vequity would prohibit the use of groundwater as a drinking water source for the entire site as well as a portion of Rand Road in front 1 of the affected property. A map attached to the ordinance document depicts the affected area. The environmental indemnity agreement with Vequity 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 recommends passing the requested groundwater use restriction ordinance and executing the recommended environmental indemnity agreement. Similar controls have been 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 ordinance for an area at and near 630 West Rand Road. 2. Authorize an environmental indemnity agreement with Vequity, LLC. 3. Action at the discretion 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 near 630 W. Rand Road. Staff also recommends that the Village Board authorize an environmental indemnity agreement as an institutional control to allow contaminated soil to remain beneath the Rand Road right-of-way and Euclid Avenue right-of-way near 630 W. Rand Road. ATTACHMENTS: 31037 Environmental Review Letter (06-09-21).pdf amended ordinance 2.pdf Village Attorney Transmittal.pdf Enviro Indemnity Agmt.pdf 2 K -PLUS ENGINEERING SERVICES June 9, 2021 Mr. Dennis G. Walsh Klein, Thorpe and Jenkins, LTD. Suite 17 15010 South Ravinia Ave. Orland Park, IL 60462-3162 Re: Vequity LLC Series XL 11 630 Rand 630 West Rand Road Mount Prospect, IL LPC No. 0311985104 — Cook County IEMA Incident No. 20181066 Dear Dennis, Direct Dial: 312.207.5700 E -Mail: dan@kplus.com As you requested, K -Plus reviewed the documents provided by you and the Village related to the closure of a LUST incident reported at the above -referenced property in November 2018. The purpose of our review was to evaluate the technical details pertaining to the current environmental condition of the property and to determine if the proposed Ground Water Ordinance will adequately protect the Village and its residents. Our review of the LUST technical reports prepared by Gabriel Environmental Services on behalf of current property owner found that the reports appear to meet the Illinois requirements for a thorough evaluation of the limits of contamination at the property. However, we believe that the limits of the proposed Ground Water Ordinance are not as protective of the Village and its residents as it should be. Specifically, the proposed coverage area for the Ground Water Ordinance as shown in the Highway authority Agreement Map dated October 21, 2019 (attached) include only a small portion of the Euclid Avenue right-of-way that could potentially be impacted by future migration of the contaminants found on the LUST site. This area is an accurate depiction based on the modeling completed for the IEPA. K -Plus recommends that the Village approve the requested ground water ordinance. Due to the likely presence of contaminated soil above Illinois MAC standards in both Euclid and Rand right-of-ways adjacent to this LUST site, any future work on Village -owned utilities in these right-of-ways may be adversely impacted and therefore, any soil excavated will require handling u�1ar•���nLv�nv��_� ����r_v��•�:�L���wz�rr�r��i�nr�uunr�rw:������r•7•�• 3 Mr. Dennis G. Walsh Project No. 31037 June 9, 2021 Page 2 of 2 and disposal as a non -hazardous contaminated material according to Illinois CCDD regulations. Based a GIS map showing Village -owned utilities in the area, both the Rand and Euclid right-of- way immediately adjacent the north and south sides of this LUST site contain Village -owned water mains and sanitary sewers that could be adversely impacted by off-site migration of contamination. For this reason, we recommend that as a condition of granting the requested ground water ordinance, the Village should require that the property owner agree to be responsible for incremental costs the Village may occur as a result of petroleum contamination in the full right- of-ways along both the Euclid and Rand sides of this LUST site. This evaluation has been performed in conformance with all applicable legal requirements and accepted practices prevailing in the environmental engineering and consulting industries. K -Plus, its officers, and its employees have no present or contemplated interest in the property or the parties involved. Our employment and compensation for preparing this report are not contingent upon any action or event resulting from the analyses, opinions, observations, or conclusions, in or from the use of, this report. The reported opinions and conclusions are unbiased, professional, and limited only by the reported assumptions, qualifications, and conditions stated herein. If you have any questions concerning my evaluation, findings, or recommendations, please call me. Sincerely, K4iel PLUS ENGIN ERING SERVICES, LLC . Caphce, P.E. Attachments (1) cc. S. Dorsey KO www.kplus.com 4 f, I-fighway Authority Agreement area Modeled Benzene Plume GVV FLOW Highway Authority Agreetnent Map Client: Vequity LLC Series XL H Site location: 630 West Rand Rd. Mount Prospect, IL 60056 Project # 0501930EXHIBITC Date: 10/28/19 1 Drawn by. PB -------- -- 0 30 1421 N. Elston Ave. phone (773) 486-2123 iel EnvironmentaW l Services Chicago, 11. 60642 fax (773) 486-0004 1 feet ORDINANCE NUMBER AN 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 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 l 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 that are the source of said chemical constituents; NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE BOARD OF THE VILLAGE OF MOUNT PROSPECT, 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 area illustrated in Figure 1 and described in Exhibit A, as a potable water supply, by the installation or drilling of wells or by any other method is hereby prohibited. This prohibition expressly 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 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. "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. C:1 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 adjudged invalid. Section Six. Effective date. ADOPTED: This ordinance shall be in full force and effect from and after its passage, approval and publication as required by law. (Date) (Village Clerk) APPROVED: (Mayor) Officially published this day of , 20 (Date) 7 Village of Mount Prospect Limits per Order Of Counsel Document 254372102 dated March 18, 1980 03-27-302-018 630 W Rand Rd Mt Prospect -, HATCHED AREA = AREA IN WHICH THE USE OF GROUNDWATER AS A POTABLE WATER SUPPLY BY THE INSTALLATION OR USE OF POTABLE WATER SUPPLY WELLS IS PROHIBITED up East Euclid Avenue Point of Beginning 03-27-302-036 1130 Thomas Moore Ter Mt Prospect V Ordinance Boundary Map Project # 0501930 k Client: Vequity LLC Series XL II Drawn by: PB FIGURE I N Site location: 630 West Rand Rd. Date: 8/31/2021 A Mount Prospect, IL 60056 0 40 80 1421 N. Elston Ave. phone (773) 486-2123 Gabriel Environmental Services Chicago, IL 60642 fax (773) 486-0004 feet81 Exhibit A The portion of Rand Road that lies within the Village of Mount Prospect, extending from a point on the North side of Rand Road and the Limits of the Village of Mount Prospect, shown on the Plat of Annexation to the Village of Mount Prospect, Order of Counsel Document # 25437102, dated March 18, 1980 extending Southeast to the Northwest Corner of Parcel 03-27-302-036 then Northwest to a point on the South side of Rand Road and the Limits of the Village of Mount Prospect then back to the point of beginning as depicted on Figure 1. 0 KLEIN, THORPE AND JENKINS, LTD„ Attorneys at Law Mr. Sean Dorsey Deputy Director of Public Works Village of Mount Prospect 1700 West Central Road Mount Prospect, IL 60056 Dear Mr. Dorsey: 20 N. Wacker Drive, Ste 1660 Chicago, Illinois 60606-2903 T 312 984 6400 F 312 984 6444 DD 708 349 3888 dgwalsh@ktjlaw.com March 10, 2022 Re: Groundwater Ordinance 630 Rand Road Mount:Ilrosnect Illinois 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 F 815 672 0738 www.ktjlaw.com As you know, VEQUITY LLC -SERIES XL 630 RAND has asked the Village of Mount Prospect to adopt an ordinance that would ban the use of groundwater wells within a certain limited area around the site located at 630 Rand Road so that VEQUITY LLC -SERIES XL 630 RAND can obtain a 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 Village has asked K -Plus Environmental Engineering Group and the undersigned to provide the Village with our recommendations regarding VEQUITY LLC - SERIES XL 630 RAND 's request. K -Plus recommends that the Village approve the requested groundwater ordinance with the condition that the Village require that the property owner agree to be responsible for the incremental costs the Village may incur as a result of petroleum contamination in the full right-of-way along both the Euclid and Rand sides of this site. The Environmental Indemnity Agreement addresses this concern. A copy of K -Plus' opinion is enclosed. As we discussed in the past, from a legal standpoint, if the Village of Mount Prospect was to adopt an ordinance that would prohibit the use of groundwater as a potable water supply (within a distance acceptable to the Village and the IEPA of the VEQUITY LLC -SERIES XL 630 RAND site) 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 VEQUITY LLC -SERIES XL 630 RAND for monitoring the Village's activities with respect to this ordinance. Simply put, from a legal perspective, the Village would not be required to take any further steps other than to adopt (and presumably not modify or rescind) the groundwater ordinance. As noted however, no new wells, including Village wells, could be placed in the groundwater ordinance area. Protection against future claims and contamination is provided to the Village through an Environmental Indemnity Agreement. VEQUITY LLC -SERIES XL 630 RAND has agreed on behalf of itself, its successors and assigns, at its sole costs and expense to indemnify, defend and 516802 1 10 Mr. Sean Dorsey Page 2 March 10, 2022 hold the Village and the Village's former, current and future officials, trustees, officers, servants, employees, agents, successors and assigns (collectively referred to as Village Affiliates") both in their capacities as Village representatives and as individuals, harmless from and against any loss, actions, responsibilities, obligations, liability, damage, claims, penalties, fines, injunctions, suits, proceedings, disbursements or expenses arising under or relating to any environmental laws or any other liabilities which may be incurred by or asserted against any of the Village Affiliates directly or indirectly, resulting or arising from, alleged to arise from, or caused by, in whole or in part, from the presence of hazardous materials on, in or from VEQUITY LLC -SERIES XL 630 RAND's property (including the groundwater thereunder) and/or any condition of any property (including groundwater) or surface water alleged to have been caused from the presence of those chemicals or substances which are or were commonly used at VEQUITY LLC -SERIES XL 630 RAND's property and which are defined as hazardous, special or toxic materials, substances or waste under any environmental law. In addition to this indemnity, if the Village encounters hazardous materials while working in, under or near the VEQUITY LLC -SERIES XL 630 RAND's property (including but not limited to such areas as within municipal easements and/or anywhere within the full Right -of -Ways along both the Euclid and Rand Road sides of Indemnitor's Property) or encounters hazardous materials migrating from VEQUITY LLC - SERIES XL 630 RAND 's property, the Village has the right to remove the contaminated soil or groundwater from the area it is working in and intends to do work and to dispose of those materials as it deems appropriate not inconsistent with the applicable environmental laws so as to avoid causing a further release of the hazardous materials and to protect human health and the environment. If asked, VEQUITY LLC -SERIES XL 630 RAND 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. The Groundwater Ordinance area is limited to only the Rand Road ROW as such no private property will be impacted. Please let me know how the Village would like to proceed at this point. Of course, if you should have any questions, please do not hesitate to call me. Very truly yours, KLEI THORPE AND JENKINS, LTD. /� al, Dennis G. Walsh Enclosures 5168021 11 Y6 This document prepared by: Dennis G. Walsh Klein, Thorpe and Jenkins, Ltd. 20 N. Wacker Drive — Suite 1660 Chicago, Illinois 60606 For Recorder's Use Only ENVIRONMENTAL INDEMNITY AGREEMENT This ENVIRONMENTAL INDEMNITY AGREEMENT is entered into as of the ------ - _ day of 2021, by VEQUITY LLC -SERIES XL 630 RAND ("Indemnitor") and the VILLAGE OF MOUNT PROSPECT, Cook County, Illinois (the "Village"). RECITALS A. WHEREAS, Indemnitor is the owner of certain real property located at 630 Rand Road, Mount Prospect, Illinois ("Indemnitor's Property") and legally described in Exhibit A; and B. WHEREAS, a release to the environment of contaminants associated with a leaking underground storage tank has occurred in the past at the Indemnitor's Property. As a result of said release, the groundwater at the Indemnitor's Property contains detectable concentrations of contamination. The groundwater impacted by contamination may extend beyond the Indemnitor's Property; and C. WHEREAS, Indemnitor desires to limit any potential threat to human health from groundwater impacted with the contaminants 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 the Indemnitor's Property. The proposed Groundwater Ordinance is attached hereto as Exhibit B. 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. 475310,_„1 M r 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 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 475310 1 d' r 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 contaminants, 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 Law 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 sea., the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9601, et sea., as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et sea., the Clean Water Act, 33 U.S.C. §1251, et sea., the Clean Air Act, as amended, 42 U.S.C. §7401, et sea., the Toxic Substances Control Act, 15 U.S.C. §2601, et sea., the Safe Drinking Water Act, 42 U.S.C. §300f, et sea., the Occupational Safety and Health Act, 29 U.S.C. §655, et seq., 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. §11001, 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 anywhere within the full Right -of - Ways along both the Euclid and Rand Road sides of the Indemnitor's Property) or encounter Hazardous Materials migrating from Indemnitor's Property, the Village has the right to remove contaminated soil or groundwater 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. 475310, 1 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 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 such contaminated soil or groundwater. 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. 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. 5. 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 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: 47531Q 9 cfl If to the Village: Village of Mount Prospect 50 S. Emerson Street Mount Prospect, IL 60056 Attn: Michael Cassady, 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. 6. 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. 7. 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 of 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. 8. This Agreement shall be binding upon the Indemnitor and the successors and assigns. 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. 475310,,,,11 9. The parties shall record a certified (by the Village Clerk) copy of this Environmental Indemnity Agreement in the office of the Cook County Recorder of Deeds and upon recordation thereof, the covenants, conditions and obligations of the Indemnitor hereto shall be binding upon its successors in title and shall be deemed covenants which shall run with the land until the termination of this Agreement. In addition, this Environmental Indemnity Agreement shall constitute a lien on the Indemnitor's Property for the payment of all sums due the Village under the terms hereof as well as for the performance of all other covenants, conditions and obligations required of the Indemnitor. In the event the Indemnitor or the current or any subsequent owner of the Indemnitor's Property fails to pay the amounts owed to the Village under this Agreement in its entirety or fails to meet its/their other covenants, conditions and obligations hereunder, any such unpaid amount or expenses incurred by the Village shall accrue interest at the rate of nine percent (9%) annually until paid, and the Village shall be entitled to foreclose this lien against the Indemnitor's Property, for said unpaid amount in the same manner as provided by law for the foreclosure of mortgages. The lien of this Agreement shall be superior to any subsequent liens or encumbrances which may attach to the Indemnitor's Property, except real estate taxes, and the lien of any future mortgage, encumbrance or evidence of indebtedness shall be subject and subordinate to the lien of this Agreement. The Village shall be entitled to all fees (including reasonable attorney's fees) and expenses incurred in connection with recording this lien and foreclosing on the same. The payment of said sums of money to be paid hereunder shall be the obligation of Indemnitor and any successors in title to the Indemnitor's Property, and no conveyance of the aforesaid Indemnitor's Property shall relieve Indemnitor, or any subsequent owner, of said obligation. In the event of a default in any payment to the Village, in addition to the remedy of foreclosure of this lien, the Village shall have all other rights and remedies against Indemnitor or any subsequent owner of the Property for the collection of said monies. Indemnitor specifically represents and warrants it is the legal titleholder of the Indemnitor's Property and that title to the Indemnitor's Property will not be transferred to any other persons or entity until this Environmental Indemnity Agreement has been first recorded in the office of the Cook County Recorder of Deeds. 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. 475310 ,,,,,1 IN WITNESS WHEREOF, the parties have executed this Limited Environmental Indemnity Agreement as of the day, month and year first above written. VILLAGE OF MOUNT PROSPECT By: Title: 475310,,,,w 1 VEQUITY LLC -SERIES XL 630 RAND By: Name: Christopher Ilekis Title: Manager Subscribed and Sworn to before me this day of O&M , 2021. fW U Notary Public Ol iclal Seal Kknbody Ward E ary Public of Illinoismmission E4Ues 03/18/2025 Exhibit A Legal Description 0 N The portion of Rand Road that lies within the Village of Mount Prospect, extending from a point on the North side of Rand Road and the Limits of the Village of Mount Prospect, shown on the Plat of Annexation to the Village of Mount Prospect, Order of Counsel Document # 25437102, dated March 18, 1980 extending Southeast to the Northeast Corner of the Intersection of Rand Road and Prospect Manor Avenue then Southwest to the Northwest Corner of the Intersection of Rand Road and Prospect Manor Avenue then Northwest to a point on the South side of Rand Road and the Limits of the Village of Mount Prospect then back to the point of beginning as depicted on Figure 1. Exhibit B Legal Description AL AL ORDINANCE NUMBER AN 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 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 that are the source of said chemical constituents; NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE BOARD OF THE VILLAGE OF MOUNT PROSPECT, 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 area illustrated in Figure 1, as a potable water supply, by the installation or drilling of wells or by any other method is hereby prohibited. This prohibition expressly 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 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. "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. M 04 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 adjudged 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. ADOPTED: APPROVED: (Date) (Date) (Village Clerk) (Mayor) Officially published this ._.._,_ day of , 20_. It N The portion of Rand Road that lies within the Village of Mount Prospect, extending from a point on the North side of Rand Road and the Limits of the Village of Mount Prospect, shown on the Plat of Annexation to the Village of Mount Prospect, Order of Counsel Document # 25437102, dated March 18, 1980 extending Southeast to the Northeast Corner of the Intersection of Rand Road and Prospect Manor Avenue then Southwest to the Northwest Corner of the Intersection of Rand Road and Prospect Manor Avenue then Northwest to a point on the South side of Rand Road and the Limits of the Village of Mount Prospect then back to the point of beginning as depicted on Figure 1. 1 Village of Mount Prospect Limits per Order of Counsel Document 254372102 dated March 18, 1980 Modeled Benzene Plume 03-27-302-018 630 W Rand Rd Mt Prospect , East Euclid Avenue Point of Beginning .1 03-27-308-021 03-27-302-036 1101 N Forest Ave 1130 Thomas Moore Ter Mt Prospect Mt M; Prospect :NN ly 0S (Or� qz" tk 6N b, 0"' 6 / I 'ti1. 4a roti 165C-) OR b, 'ZIP -1 L0 04 Northeast Comer of Rand Road and North Prospect O 0G Manor Avenue, Mount Prospect, Illinois HATCHED AREA AREA IN WHICH THE USE OF GROUNDWATER AS A POTABLE 7 /1' /' WATER SUPPLY BY THE INSTALLATION Northwest Comer of Rand Road and North Prospect OR USE OF POTABLE WATER SUPPLY Manor Avenue, Mount WELLS IS PROHIBITED Prospect, Illinois Ordinance Boundary Map Project # 0501930 Client: VeqWty LLC Series XL H Drawn by: PB FIGURE I N Site location: 630 West Rand Rd. Date: 10/5/2020 A Mount Prospect, EL 60056 0 1421 N. Elston Ave. phone (773) 486-2123 feet Gabriel Environmental Services Chicago, IL 60642 fax (773) 486-0004