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HomeMy WebLinkAboutRESOLUTION - 56-02 - 11/19/2002 - CORRECTIVE ACTION/HOLD HARMLESS AGRMT RESOLUTION NO. 56-02 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A CORRECTIVE ACTION/INDEMNIFICATION-HOLD HARMLESS AGREEMENT BETWEEN MARATHON ASHLAND PETROLEUM LLC, CORRIB CONSTRUCTION, INC. , AND THE VILLAGE OF ELK GROVE VILLAGE (ROHLWING GROVE SHOPPING CENTER/DEVON AVENUE AND ROHLWING ROAD) NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows : Section 1 : That the Mayor be and is hereby authorized to sign the attached documents marked: MARATHON ASHLAND PETROLEUM LLC AGREEMENT ROHLWING GROVE SHOPPING CENTER a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is authorized to attest said documents upon the signature of the Mayor. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 6 NAYS: 0 ABSENT: 0 PASSED this 19" day of November 2002. APPROVED this 19th day of November 2002. APPROVED: Craig B. Johnson, Mayor ATTEST: Ann I. Walsh, Village Clerk resMarathonAshlandAgmt.doc R.Millican Operations Manager ruunto� ��d MARATHON ASHLAND Petroleum LLC 539 South Main Street Findlay,OH 45840.3295 Telephone:419/421-3087 Fax:419/421-3946 E-Mail: RMillicanOMAPLLC.com November 13, 2002 Mr. Michael F. Conneely,President and Craig B. Johnson,Mayor Comb Construction, Inc. Village of Elk Grove 5 Loblolly Court, 901 Wellington, Village Hall Lemont, IL 60479 Elk Grove Village, IL 60007 Re: Property located at Rohlwing Grove Shopping Center at the Corner of Devon and Rohlwing Roads,Elk Grove Village,Illinois 60007 Dear Mr. Connelly and Mayor Johnson: I am writing this letter on behalf of Marathon Ashland Petroleum LLC (MAP'), a Delaware limited liability company authorized to do business in Illinois. MAP hereby represents and warrants that it has sufficient assets to perform all of its obligations under this Agreement. It is my understanding that the Village of Elk Grove, Blinois("The Village") is interested in selling that certain real property located at Rohlwing Grove Shopping Center at the Comer of Devon and Rohlwing Roads, Elk Grove Village, Illinois ("Village Property") and that Corrib Construction, Inc. ("Corrib') is interested in purchasing the Village Property from The Village. The parties acknowledge that the Village Property is located adjacent to MAP's property known and numbered as 1195 Rohlwing Rd., (the"MAP Property"). It is my further understanding that Corrib and The Village are concerned that Petroleum Impacts caused by MAP or its predecessors may migrate onto the Village Property from the MAP Property at some time in the future and they have therefore requested indemnification from MAP regarding same. As you may be aware, MAP has been performing environmental response activities to address petroleum hydrocarbon impacts that resulted from MAP's operations at the MAP Property. Although there is no indication of the migration of Petroleum Impacts, as this term is defined below, onto the Village Property at this time, or that it ever will occur, please be assured, as specified below, of the following as to any Petroleum Impacts occurring at the Village Property which are determined to have been caused by the operations of MAP. 1. If the Agency ("Agency" shall mean any governmental agency with jurisdiction, including but not limited to the United States Environmental Protection Agency and the Illinois Environmental Protection Agency or their successors) require MAP to conduct (160012.DOC 2) Corrib Construction,Inc. Elk Grove Village,IL November 13,2002 Page 2 of 6 Corrective Action of the Petroleum Impacts at the Village Property, MAP will conduct such Corrective Action at its cost to the extent and degree required by all applicable federal and Illinois laws, regulations and lawful orders of the Agency. MAP will observe any and all local, Illinois and federal environmental laws and regulations applicable to the Corrective Action. MAP shall comply with any Corrective Action plan approved by the Agency or a lawful order of the Agency, if applicable, to address the Petroleum Impacts. Comb and The Village acknowledge MAP's right to follow the Approved Corrective Action Plan or a lawful order of the Agency, if applicable. 2. "Petroleum Impacts" shall mean the presence of petroleum hydrocarbons and/or the semi- volatile constituents of oil or gasoline in the soils or ground water beneath the Village Property due to the operations or use of the MAP Property by MAP of which The Village is aware based on data provided to them by MAP as of the date of this Agreement. Such data consists of results of sampling performed in June, 2002 and provided to The Village on or about August 30, 2002; and data included in MAP's Corrective Action Plan submitted to the Illinois Environmental Protection Agency on or about June 18, 1997. 3. "Corrective Action" shall mean one or more of the following activities as applied to the Petroleum Impacts: investigation, assessment, monitoring, sampling, analysis, cleanup, removal, disposal, on-site treatment, off-site treatment, active remediation, passive remediation, remediation alternatives including but not limited to the use of risk-based, site-specific corrective action or other similar risk-based policy or cleanup objectives and/or other activities required or concurred in by the Agency. The use of risk-based, site-specific corrective action or other similar risk-based policy or cleanup objectives may include the use of activity restrictions and/or engineering controls that may require deed recordation running with the land to ensure the protection of public health, safety or welfare and the environment. Such activity restrictions and/or engineering controls, if necessary, shall not prohibit or materially interfere with the use of the Village Property for commercial purposes and may only be adopted or imposed with the concurrence of the owner of the Village Property at that time. 4. Comb and The Village hereby grant MAP and its subsidiaries, and their consultants, contractors, agents and representatives an irrevocable license at no cost to MAP to enter upon the Village Property at any reasonable time to conduct Corrective Action and to place and remove all equipment and improvements on the Village Property necessary to perform such Corrective Action. MAP, or its subsidiaries or contractors, shall maintain ownership or control of all such equipment placed on the Village Property. MAP shall provide the owner of the Village Property at the time access is sought with at least seventy-two hours prior notice before entering the Village Property for Corrective Action activities. In addition, prior to any entry on the Village Property, MAP shall provide the Village and any successor owner of the Village Property with a certificate of insurance for with coverage of at least one million per occurrence for property damage, personal injury and errors and omissions naming the Village and any successor owner as additional insureds. Such insurance shall be maintained by MAP at least until an NFA for (I60012.DOC 2) Corrib Construction,Inc. Elk Grove Village,IL November 13,2002 Page 3 of 6 the MAP and Village Property is recorded. Notwithstanding any provision hereof to the contrary, MAP is, and expects to remain during the term of this Agreement, self-insured for the risks identified above as risks to be insured against, and MAP will maintain coverage of these risks during the term of this Agreement under its plan of self-insurance in accordance with the terms of the letter or letters describing such coverage which are attached hereto and incorporated herein by reference or, at its option, by commercial insurance as is called for by the foregoing provisions. If MAP, its contractors or agents damage or remove any improvements belonging to The Village or Corrib in relation to Corrective Actions, such improvements shall be replaced or repaired to the condition they were in prior to the Corrective Action at MAP's sole cost and expense within a reasonable period of time following completion of the onsite aspects of the Corrective Action on the Village Property and if the Agency will permit same. Any wastes, spoils or extracted ground water generated by MAP or its contractors or agents on the Village Property shall be removed from that Property within thirty(30)days of their generation. 5. MAP will defend, indemnify, and hold Comb and The Village harmless from any and all actions, claims, demands, costs, liabilities and damages asserted against Corrib and The Village solely by an Independent Third Party arising out of or in connection with the Petroleum Impacts. ( "Independent Third Party" shall mean any person or entity other than Corrib, The Village and MAP: (i) who is not an agent of Corrib, The Village or MAP; and (ii) who does not claim through Comb, The Village or MAP. A person or entity who claims through Corrib, The Village or MAP includes, but is not limited to, mortgagees and tenants of Comb and The Village and the respective Affiliates, subsidiaries, parents, officers, employees, directors/managers, representatives, successors, assigns, or other related parties of Comb, The Village and MAP. The term, "Independent Third Party" shall include, but not limited to, the Agency and any other governmental authorities, agencies or instrumentalities with jurisdiction. "Independent Third Parties" is the plural form of the term, "Independent Third Party") In order for Comb and The Village to receive the protections of this paragraph, Corrib and The Village must first: (1) provide MAP with access to the Village Property pursuant to paragraph 4 above; (2) give MAP written notice within twenty(20) days after Corrib or The Village obtain knowledge of the claim by the Independent Third Party which is claimed to be covered by this paragraph and (3) tender defense to MAP of the claim of the Independent Third Party which is claimed to be covered by this paragraph. MAP will then be given a reasonable period of time to cure the claim before having to provide the protections granted by this paragraph. This indemnity shall survive the termination of this Agreement unless terminated due to breach by The Village or Comb. 6. MAP's obligations under this Agreement shall continue until MAP obtains a No Further Action("NFA") letter, or its functional equivalent,regarding Petroleum Irnpacts from the Agency for the MAP Property and the Village Property. 7. If this Agreement is not duly executed and returned by Comb and The Village to MAP within thirty (30) days following execution by MAP then this Agreement shall be null and void. (I 60012.130C 2) Corrib Construction,Inc. Elk Grove Village,IL November 13,2002 Page 4 of 6 8. In return for MAP's obligations herein, Corrib and The Village hereby covenant not to sue and agree to release MAP, its parent, affiliates and subsidiary companies, and their respective officers, employees, and agents for any claim based upon or arising out Petroleum Impacts. This release shall not extend to any claims for enforcement of this Agreement and shall not release MAP from its indemnity obligations pursuant to paragraph 5 herein. Further, this release shall become effective upon proper recordation of an NFA letter for the MAP Property and Village Property issued by the Illinois Environmental Protection Agency or its successor or assign. 9. All notices with respect to this Agreement shall be deemed to have been completed upon receipt after mailing by first class mail postage prepaid or by recognized overnight courier to the following: To MAP: Manager Real Estate Department Marathon Ashland Petroleum LLC Room 1604 539 South Main Street Findlay,Ohio 45840 and Manager Environmental and Technical Services Marathon Ashland Petroleum LLC Room 3610 539 South Main Street Findlay,Ohio 45840 with a copy to Group Counsel,Environmental Law Organization Marathon Ashland Petroleum LLC 539 South Main Street Findlay,Ohio 45840 To Comb: Michael F. Conneely,President Corrib Construction,Inc. 5 Loblolly Court Lemont,Illinois 60479 (160012.DOC 2) Corrib Construction,Inc. Elk Grove Village,IL November 13,2002 Page 5 of 6 To The Village: Gary E. Parrin,Village Manager 901 Wellington,Village Hall Elk Grove Village, Illinois 60007 10. It is agreed that the terms and provisions of this Agreement shall not be construed or interpreted against any party as the drafter and provider of said terms and provisions. 11. This Agreement shall be governed by and construed in accordance with the law of Illinois. 12. This Agreement is in no way to be construed as or deemed to be evidence of any admission of fact or law, or wrongdoing by any party. This Agreement may not be offered in evidence against the parties in any action,except to enforce this Agreement. 13. This Agreement and each of the covenants and obligations herein shall be binding upon, and inure to the benefit of, all the parties hereto, and their respective successors and assigns. It shall not, however, be assigned by any party without the prior written approval of the other parties, which will not be unreasonably withheld. Furthermore, in the event that Comb purchases the Village Property from the Village and that Corrib then transfers or sells the Village Property prior to MAP's completion of Corrective Action, if any is required, Corrib hereby agrees, that Comb will take the following actions: (a) notify MAP in advance of any such transfer or sale; and (b) require any person or entity who receives title to or purchases the Village Property from Comb to agree to assume and to be bound by all the terms and conditions of this Agreement. If the above does not occur this Agreement is null and void. In the event that Corrib shall lease the Village Property to any person or entity, Comb agrees to require as part of the lease agreement that the lessee assume and be bound by all the terms and conditions of this Agreement. In the event that Corrib does not purchase the Village Property,but that Corrib alternatively leases the Village Property, The Village agrees to require as part of the lease that the lessee assume and be bound by all the terms and conditions of this Agreement. 14. The parties executing this Agreement have been duly authorized to execute and deliver this Agreement on behalf of Corrib,The Village and MAP. 15. This Agreement is supported by valuable consideration, the sufficiency of which is hereby acknowledged by Corrib,The Village and MAP. 16. The Village represents and warrants that The Village alone holds title to the Village Property in fee simple. Corrib represents and warrants that if it purchases the Village property that it alone will hold title to the Village Property in fee simple. 17. This Agreement may be executed in counterparts, each of which shall be deemed an original,but all of which together shall constitute one and the same instrument. t160MDOC 21 Corrib Construction,Inc. Elk Grove Village,IL November 13,2002 Page 6 of 6 The performance of any and all Corrective Action by MAP as described herein is expressly conditional upon The Village and Comb granting reasonable access to the Village Property for purposes of performing such Corrective Action, if or when necessary. If MAP is ever denied reasonable access to the Village Property for purposes of performing such activities, then this letter and any requirements of MAP provided herein shall be deemed null and void. MAP expressly reserves its legal appeal rights with respect to any orders, directives or requests of the Agency concerning, but not limited to, Corrective Action and/or Petroleum Impacts. Should Corrib purchase of the Village Property,The Village shall provide documentation of the same to MAP. In the event that Corrib does not purchase or lease the Village Property this Agreement shall be null and void. However,MAP agrees that it will enter into a similar agreement with The Village and the alternate purchaser. This Agreement will be effective upon its execution. If you are in agreement with this letter,please sign below and return a copy to my attention. We look forward to working with you on matters of mutual concern at the Village Property. Sincerely, R. Millican It is so agreed: Corrib Construction,Inc. By: Its: President Date: It is swagreed The Village of Elk Grove By: Craig B. Johnson Its:Mayor Date: Y'/9' /9X g cc: M. W. Ehrman P. C. Claypool (160012.noC 2)