HomeMy WebLinkAboutResolution # 3801RESOLUTION NO. 3801
A RESOLUTION APPROVING A SETTLEMENT AGREEMENT BETWEEN THE CITY OF
CANTON AND INTERNATIONAL TRUCK AND ENGINE CORPORATION AND
AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK OF THE CITY OF
CANTON TO EXECUTE SAID SETTLEMENT AGREEMENT ON BEHALF OF THE CITY
OF CANTON.
WHEREAS, the City of Canton, Illinois ("City") has been engaged in settlement
negotiations with International Truck and Engine Corporation ("International") relating to the
assessment and remediation of certain historic environmental conditions at the property located
at 210 East Elm Street, Canton, Illinois ("IH Site" or "Site") in order to allow for site closure
under the Illinois Environmental Protection Agency's ("IEPA") Site Remediation Program
("SRP"), thereby expediting redevelopment of the Site in a manner consistent with the City's
proposed development plan for the Site; and
WHEREAS, as a historic owner and operator of the Site, International has agreed to
resolve any potential environmental liability relating to historic environmental conditions at the
Site with the City and fund the City's SRP closure efforts at the Site pursuant to the terms and
conditions of the proposed Settlement Agreement by and between the City and International for
the resolution of historic environmental conditions at the Site ("Proposed Settlement
Agreement"); and
WHEREAS, the Legal and Ordinance Committee of the City has reviewed the terms of
the Proposed Settlement Agreement, a copy of said Proposed Settlement Agreement being
attached hereto and made a part hereof as Exhibit A; and
WHEREAS, the Legal and Ordinance Committee of the City has determined that it is
necessary, desirable and in the best interest of the City to approve the Proposed Settlement
Agreement; and
WHEREAS, the City Council of the City has made a similar determination.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF CANTON, FULTON COUNTY, ILLINOIS, AS FOLLOWS:
1. That the Proposed Settlement Agreement between the City and International, a copy
of said Proposed Settlement Agreement being attached hereto and made a part hereof as Exhibit
A, is hereby approved in the form attached as Exhibit A, and said Proposed Settlement
Agreement shall be subject to and effective pursuant to the terms and conditions set forth therein.
2. That the Mayor and City Clerk of the City are hereby authorized and directed to
execute and deliver the Proposed Settlement Agreement with International on behalf of the City.
3. That this Resolution shall be in full force and effect immediately upon its passage by
the City Council of the City and approval by the Mayor thereof.
PASSED by the City Council of the City at a regular meeting this 15i1i day of May, 2007
upon a roll call vote as follows:
AYES: Aldermen Berardi, Sarff, West, Carl, Meade, Strandber Lewis.
NAYS: None.
ABSENT: Alde~nan Schenck.
APP V D:
Rod y W. Heinze, Mayo
ATTEST: ,~
~,
N cy S. Whites, City Clerk
2
f
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made effective this 10th day of May,
2007, by and between the City of Canton, Illinois (the "City"), an Illinois municipal
corporation and International Truck and Engine Corporation ("International"), a Delaware
corporation having its principal place of business in Warrenville, Illinois. (The City and
International are sometimes collectively referred to herein as the "Parties" and individually as
a "Party".)
RECITALS
WHEREAS, pursuant to a court order entered on June 18, 1999, the County of
Fulton, as Trustee, acquired title to the property located at 260 East Elm Street, in Canton,
Illinois, and legally described on Exhibit A which is attached hereto and incorporated herein
(the "Site"); and
WHEREAS, the County of Fulton conveyed the Site to a land trust with the City as
trustee with all of the various taxing districts involved as owners of the beneficial interests of
the land trust; and
WHEREAS, the United States Environmental Protection Agency ("USEPA") has
entered into a Prospective Purchaser Agreement with the City which provides essentially that
the USEPA will not look to the City, the County or any prospective purchasers of the real
estate comprising the Site for contribution toward the environmental remediation costs but at
the same time the USEPA reserved its rights to legally pursue prior owners who may have
contributed to contamination at the Site; and
WHEREAS, International Harvester Corporation ("IH") was the owner and operator
of the Site from 1916 until 1984 where it manufactured farming equipment and implements;
and
WHEREAS, between 1984 and 1999, various entities owned either all or certain
parcels of the Site; and
WHEREAS, the City is interested in redeveloping the Site in an expeditious and
timely manner in order to attract interested end-users to the Site; and
WHEREAS, the City has obtained over $5,000,000 from various state and federal
agency partners, including the Illinois Environmental Protection Agency ("IEPA"), USEPA,
and the United States Geological Survey ("USGS") in the form of grants, loans, and in-kind
services for site assessment and remediation activities at the Site, and the City has
contributed over $1,000,000 in funding and in-kind service for demolition, assessment, and
remedial activities at the Site; and
WHEREAS, the City has entered the Site into IEPA's Voluntary Site Remediation
Program, as set forth in Title XVII of the Illinois Environmental Protection Act, 415 ILLS
5/58 et seq., and the regulations promulgated thereunder (collectively the "SRP") on
September 27, 2000; and
WHEREAS, prior environmental investigations have revealed the presence of VOCs,
PAHs, metals, TPH above default TACO Tier I Remediation Objectives, and light non-
aqueous phase liquid ("LNAPL") had been detected at the Site and that LNAPL had been
detected in at least one off-site groundwater monitoring well; and
WHEREAS, the City and International cooperated to conduct a joint supplemental
environmental investigation of the Site between August and November 2006 to supplement
and update existing soil and groundwater data obtained by the City and more fully delineate
the Site for SRP closure purposes; and
WHEREAS, the City and International have cooperated and desire to continue to
cooperate in addressing various environmental issues known and unknown at the Site (the
"Work"); and
WHEREAS, the parties desire to avoid costly and protracted proceedings and to
resolve their dispute with respect to the issues concerning the Site and agree upon an
expeditious and timely mechanism for completing all necessary SRP Closure Activities and
obtaining No Further Remediation ("NFR") letters pursuant to 35 I11.Adm.Code Part 740 and
742 for all of the Site and/or subdivisions thereof;
NOW THEREFORE, in consideration of the foregoing recitals which are hereby
incorporated as if the same were fully stated herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
1. Incorporation of Recitals. The foregoing recitals are hereby incorporated by
reference into this Agreement as if fully set forth herein.
2. Definitions.
(a) "Days" means business days and shall not include local, state, or federal
holidays nor weekends.
(b) "Development Plan" means the City's schedules and designs, plans and
construction activities relating to the Site, and any amendments thereto, as disclosed to
International.
(c) "Environmental Documents" means (i) the Phase I and/or Phase II
Environmental Site Assessments or other environmental documents prepared by the IEPA,
USEPA, International, or City's environmental consultant for the Site and disclosed to
International; or (ii) documents, reports, data, diagrams or studies created or analyzed by the
City's environmental consultant as a result of its assessment and remediation activities
conducted at the Site and certain adjacent properties.
2
(d) "Environmental Laws" means federal, state, regional, county and local
administrative rules, statutes, codes, ordinances, regulations, licenses, permits, approvals,
authorizations, directives, rulings, decrees, orders, judgments, and common law, relating to
the protection of human health, safety, or the environment including without limitation: (i)
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA") (42 U.S.C. §§ 9601 et seq.), as amended; (ii) the Resource Conservation and
Recovery Act of 1976, as amended by the Solid and Hazardous Waste Act Amendments
("RCRA") (42 U.S.C. §§ 6901 et seq.); (iii) the Solid Waste Disposal Act, as amended by
RCRA (42 U.S.C. § 6901 et seq.); (iv) any state law equivalents of the foregoing federal
laws; (v) Illinois Environmental Protection Act (415 ILLS 5/58 et seq.); and (vi) any and all
laws, rules, regulations, codes, ordinances, licenses, permits, approvals, plans, authorizations,
directives, rulings, injunctions, decrees, orders and judgments enacted or promulgated under
any of the foregoing, all as amended and as may be amended in the future.
(e) "Hazardous Material" means (i) any element, compound, or chemical that is
defined, listed, or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or
hazardous substance, extremely hazardous substance or chemical, hazardous waste, special
waste, or radioactive material under Environmental Laws; (ii) petroleum, petroleum-based or
petroleum-derived products, or soils containing the same; (iii) polychlorinated biphenyls; and
(iv) any substance exhibiting a characteristic of hazardous waste under Environmental Laws,
including but not limited to corrosivity, ignitability, toxicity or reactivity as well as any
radioactive or explosive materials.
(f) "Northeast Development Block" means the area at the Site located from Elm
to Walnut Streets between 3`d and 4`h Avenues.
(g) "Northwest Development Block" means the area at the Site located from
Elm to Pine Streets between 2°d and 3`d Avenues.
(h) "Pre-Existing Environmental Conditions" means environmental conditions
at, on, beneath, or from the Site existing on or before the Effective Date of this Agreement
that exceed TACO Tier I industrial/commercial or construction worker remediation
objectives under TACO standards for soil and/or groundwater, as set forth at 35 Ill. Admin.
Code Part 742. Additionally, "Pre-Existing Environmental Conditions" include, without
limitation, environmental conditions exceeding Site Cleanup Standards which are specifically
identified in the Environmental Documents (collectively, "Known Pre-Existing
Environmental Conditions"); and unknown Pre-Existing Environmental Conditions
including, but not limited to, all other environmental conditions other than Known Pre-
Existing Environmental Conditions that exceed Site Cleanup Standards (collectively,
"Unknown Pre-Existing Environmental Conditions").
(i) "Site Agency Grants" means any and all IEPA, USEPA, and/or other
governmental agency assessment or cleanup grant funds procured by the City that can be
applied to SRP Closure Activities at the Site.
(j) "Site Cleanup Standards" means the industrial/commercial and construction
worker remediation objectives under the IEPA's Tiered Approach to Corrective Action
Objectives at 35 II1.Adm.Code Part 742 ("TACO") that must be satisfied to obtain
comprehensive NFR Letters for each of the Development Blocks at the Site that are
consistent with the Development Plan.
(k) "Development Blocks" or "DBs" means the Western Development Block,
Southern Development Block, Third Street ROW, Northeast Development Block, and
Northwest Development Block, as defined by this Agreement and depicted in a Site diagram
attached hereto as Exhibit B and incorporated herein (collectively, the "Site"). The areas of
the Site comprising the defined Development Blocks may be amended by agreement of the
Parties, and such amendment shall be incorporated into this Agreement.
(1) "Southern Development Block" means the area at the Site located from
Maple Street to Railroad ROW from midway between 2"d and 3`d Avenues to 3~d Avenue and
Walnut Street to Railroad ROW between 3rd and 4`h Avenues.
(m) "SRP Closure Activities" or "Work" includes, but is not limited to, any
assessment, remediation, document preparation or submissions relating to any Pre-Existing
Environmental Conditions that is required to satisfy the IEPA Site Remediation Program
requirements under 35 Il1.Adm.Code Part 740 ("SRP") and the industrial/commercial and
construction worker remediation objectives under the Site Cleanup Standards. The SRP
Closure Activities or Work shall be consistent with the provisions of Exhibit C of this
Agreement.
(n) "Third Street ROW" means the Third Street Right-of--Way located at Third
Street from Elm Street to Maple Street.
(o) "Western Development Block" means the area at the Site located from Pine
to Maple Streets between 2"d and 3rd Avenues (including offsite areas to west which include,
but are not limited to, the public thoroughfare and the northern block of the area commonly
known as the Petersen Property).
3. The Parties Responsibilities Relating to the Work. The Parties agree that all Work
at the Site will be done in accordance with the Development Block Work Scopes (as set forth
in Section 3(a) below) pursuant to the Site Cleanup Standards and all applicable
Environmental Laws, rules and regulations. The Parties agree that the purpose of the Work
is to obtain a comprehensive NFR letter for each Development Block under the SRP in a
commercially reasonable and cost-effective manner pursuant to the Site Cleanup Standards
and consistent with the Development Plan. The Parties agree that all Work at the Site will be
completed in accordance with the Site Cleanup Standards in a commercially reasonable and
cost-effective manner that is consistent with the Development Plan and the provisions of
Exhibit C of this Agreement.
(a) Development Block Work Scopes. The Parties agree to develop work scopes
and cost estimates for each Development Block ("DB Work Scopes") setting forth the
required Work to be completed for each Development Block. The parties agree to
complete the DB Work Scopes pursuant to the DB Work Scope Execution Schedule
set forth in subparagraph (b) below. Each DB Work Scope shall contain: (1) the SRP
4
closure strategy, which shall comply with the Site Cleanup Standards in a
commercially-reasonable and cost-effective manner consistent with the Development
Plan; (2) the required SRP Closure Activities and timeline necessary to complete the
required SRP Closure Activities and obtain a comprehensive NFR Letter within a
timeframe consistent with the Development Plan ("DB SRP Activities"); (3) required
SRP reports or other regulatory deliverables required to complete the required Work
for each Development Block; and (4) available Site Agency Grants (and amounts
available under such grants) that can be applied towards the Work at the specific
Development Block. The Development Blocks with the highest development priority
will be executed first and all Development Block priority determinations will be at
the City's sole discretion. Once the City and International finalize a DB Work Scope
pursuant to the DB Work Scope Execution Schedule set forth below, the DB Work
Scopes will be attached hereto and incorporated by reference into this Agreement as
Exhibits D, E, F, G, and H as each is individually executed.
(b) DB Work Scope Execution Schedule. The parties agree to negotiate in good
faith, with time of the essence, each DB Work Scope. Unless otherwise agreed upon
by the Parties in writing, the parties must complete the DB Works Scopes pursuant to
the following DB Work Scope Execution Schedule:
(1) First DB Work Scope must be completed within 25 days of the
Effective Date of this Agreement.
(2) Second DB Work Scope must be completed within 75 days of the
Effective Date of this Agreement.
(3) Third DB Work Scope must be completed within 125 days of the
Effective Date of this Agreement.
(4) Fourth DB Work Scope must be completed within 175 days of the
Effective Date of this Agreement.
(5) Fifth DB Work Scope must be completed within 225 days of the
Effective Date of this Agreement.
In the event that the Parties do not complete a DB Work Scope within the allotted
timeframe set forth in Section 3(b) and/or the Parties have not otherwise agreed upon
a revised DB Work Scope Execution Schedule, then the Dispute Resolution
procedures set forth in Section 13 shall be triggered and the DB Work Scope will be
completed with the assistance of a third party pursuant to the provisions set forth in
Section 13.
(c) DB SRP Closure Activities/Work Criteria and Assumptions. The Work will
be based on the following criteria and assumptions:
(1) The Work to be conducted at each Development Block must: (a) satisfy
Site Cleanup Standards; and (b) utilize commercially reasonable and cost-
effective closure methods (i.e., engineered barriers and institutional controls) to
the maximum extent practicable that are consistent with the Development Plan.
5
(2) A Groundwater Use Ordinance and Memorandum of Understanding
(MOU) with the State of Illinois currently exist prohibiting the installation or use
of potable groundwater wells within the City proper, which includes the Site.
(3) Site end use will be predominantly commerciaUindustrial and will utilize
engineered barriers and institutional controls to the maximum extent practicable
and consistent with the Development Plan.
(4) Existing concrete foundations will be replaced with IEPA-approved
engineered barriers to the extent required to obtain an NFR Letter for each
Development Block that is consistent with the Development Plan.
(5) No inhabitable subsurface features (i.e., basements) will be constructed
at the Site.
(6) The City and International have nominal information relating to the man-
made pathways at the Site (tunnels, piping runs, former utilities, and other
subsurface features).
(d) Consultant Selection and Direction. The Parties agree that the City will retain
a qualified environmental consultant ("Consultant") for implementing the Work at the
Site. For purposes of this Section, a "qualified environmental consultant" shall mean
a reputable consultant with considerable expertise and a successful track record
relating to: (1) the development and implementation of IEPA SRP Closure Activities
at former industrial sites similar nature and complexity as the Site; (2) technical
assistance associated with procuring environmental insurance policies and associated
site-specific policy endorsements; (3) integration of a property's environmental
remedy with its proposed development plan at mixed-use Brownfield redevelopments;
and (4) utilization and administration of federal and state Brownfield assessment and
remediation grants. The City will be primarily responsible for directing and
overseeing the Consultant's implementation of the Work. International shall be
allowed to participate in the Consultant selection process. The City shall submit its
proposed Consultant selection to International for approval, which shall not be
unreasonably withheld. Except as specifically set forth herein, International, at its
own expense, may also observe and oversee the Consultant's implementation of the
Work. Unless the City is in default of this Agreement, International may not,
however, independently implement or undertake the Work at the Site. In an
emergency situation, where in either Party's sole and reasoned judgment human
health or the environment is in danger, such Party may direct the Consultant to
implement any activities necessary to mitigate the risk to human health or the
environment, approve work or change orders, and take any other necessary actions
without first seeking the other Party's approval. In such circumstances the acting
Party will, however, keep the other Party advised orally of such situations within
twenty-four (24) hours of the emergency situation triggering the action.
(e) Cost Allocation. The Parties agree to allocate the costs of the Work at each
Development Block among themselves as set forth on Exhibit C hereto, as amended
from time to time by written agreement of both Parties, and which is also
incorporated herein by reference and made a part of this Agreement. Exhibit C sets
6
forth the cost allocation to the extent the Work described therein is required by IEPA
under the SRP and TACO to satisfy the Site Cleanup Standards and obtain
comprehensive NFR Letters from the IEPA that are consistent with the Development
Plan and does not purport to describe the Work that will actually be implemented at
the Site. The Cost Allocation between the parties for specific Work to be conducted
at each Development Block will be set forth in each DB Work Scope developed
pursuant to Sections 3(a) and (b) above consistent with the Parties' cost allocations
set forth in Exhibit C.
(f) Funding for Work.
(1) Development Block Environmental Escrow Account(s). A separate
Development Block Environmental Escrow Account ("DB Environmental Escrow")
will be established by the City to fund SRP Closure Activities contained in each DB
Work Scope and will be governed by procedures set forth in Section 3(f)(2) below to
hold and disburse the funds necessary to satisfy the Work contained in each DB Work
Scope.
(i) The specific costs associated with the DB SRP Closure
Activities will be funded by a combination of applicable IH Site Agency
Grants and funds contained in the DB Environmental Escrow. To the extent
practicable, DB Work Scope costs will be paid for by eligible IH Site Agency
Grants before the expiration of the applicable grant utilization period. Any
cost overruns associated with the DB SRP Closure Activities above and
beyond what is covered by available IH Site Agency Grants will be funded by
the DB Environmental Escrow funds. Upon completion of each DB Work
Scope pursuant to this Agreement, International will be required to pay the
City 105% of the estimated DB SRP Closure Activity Costs and the City shall
deposit the same into the designated DB Environmental Escrow ("DB
Environmental Escrow Deposit"). For purposes of this section only "DB SRP
Closure Activity Costs" shall mean the cost estimates established by the
parties to complete each DB Work Scope agreed upon by the parties minus
eligible Site Agency Grants for that Development Block, and the remaining
amount shall be multiplied by 105%.
(ii) In the event that an Unknown Pre-Existing Environmental
Condition is discovered by the City after the Effective Date of this Agreement
that was not contemplated during the development of the original DB Work
Scope and the Unknown Pre-Existing Environmental Condition must be
addressed in order to complete the requisite SRP Closure Activities at a
Development Block and/or comply with Environmental Laws, the City shall
notify International of the discovery of the Unknown Pre-Existing
Environmental Condition within 15 days of the discovery of the Unknown
Pre-Existing Environmental Condition. Within 10 days of International's
receipt of City's notification of an Unknown Pre-Existing Environmental
Condition, International and the City shall agree upon revisions to the original
DB Work Scope and incorporate the Work required to address the Unknown
7
Pre-Existing Environmental Condition ("Amended DB Work Scope"). Upon
the parties' completion of the Amended DB Work Scope, International shall
pay the City the difference between the amount contained in the in the original
DB Environmental Escrow and 105% of the amount to complete the Work set
forth in the Amended DB Work Scope.
(iii) In the event a DB Environmental Escrow is depleted prior to
the completion of the required DB SRP Closure Activities, then International
will be required to pay the City 105% of the remaining DB SRP Closure Costs
(to be agreed upon by both parties prior to the depletion of the DB
Environmental Escrow) and the City shall deposit this amount into the
applicable DB Environmental Escrow to complete the remaining DB SRP
Closure Activities ("Supplemental DB Environmental Escrow Deposit"). The
same procedures set forth in this paragraph shall apply in the event the
Supplemental DB Environmental Escrow Deposit is depleted prior to
completion of the DB SRP Closure Activities.
(iv) Upon the completion of the DB SRP Closure Activities
associated with a specific Development Block, any funds remaining in the DB
Environmental Escrow for that Development Block shall be transferred to the
next priority DB Environmental Escrow or any open DB Environmental
Escrow determined by the City (if more than one DB Environmental Escrow
is open at one time) if multiple DB Work Scopes are being implemented at the
Site.
(2) Development Block Environmental Escrow Procedures. The City shall
deposit the DB Environmental Escrow Funds specified in Section 3(f)(1) hereof with
MidAmerica National Bank, Canton, Illinois (the "Escrow Agent"), which shall
disburse the Escrow Funds in accordance with the terms of this paragraph. The
Escrow Agent shall invest the DB Environmental Escrow Funds in money market
accounts or other low risk investments, which are jointly designated by the City and
International from time to time. All interest and other investment earnings on the DB
Environmental Escrow Funds shall be added to, and shall constitute a part of, the DB
Environmental Escrow Funds and shall be held, invested and applied in the same
manner as the other DB Environmental Escrow Funds. All taxable income for
purposes of federal, state or local income tax laws arising from the investment of the
portion of the DB Environmental Escrow Funds comprising the DB Environmental
Escrow Deposit and Supplemental DB Environmental Escrow Deposit shall be
allocated to the City and any income taxes directly associated with the DB
Environmental Escrow Funds shall be paid for by DB Environmental Escrow Funds.
In connection herewith, the parties shall concurrently with execution of each DB
Work Scope enter into Escrow Trust Instructions consistent with the provisions
hereof.
(i) The Escrow Agent shall disburse DB Environmental Escrow
Funds only to such parties and in such amounts as may be designated by the
City on account of implementation of the SRP Closure Activities (excluding
attorneys' fees and in-house administrative costs) performed by such parties
as specified in the various DB Work Scopes in total amounts of any item set
forth in each DB Work Scope. The City agrees to direct Escrow Agent to
disburse DB Environmental Escrow Funds to parties designated by the City in
amounts of one hundred and five (105%) of any item or component set forth
in the each DB Work Scope upon the City's reasonable approval of such
amounts, which approval shall not be withheld if consistent with the
components of the DB Work Scope agreed upon by the parties.
(ii) Following completion of the DB SRP Closure Activities and
the issuance of the final NFR Letter(s) for all of the Development Blocks at
the Site, the DB Environmental Escrow Funds shall continue to be held for a
period of two (2) year after recording of the final NFR Letter(s) ("Post-SRP
Closure Period"). During the Post-SRP Closure Period, in the event that the
City encounters an Unknown Pre-Existing Environmental Condition that was
not addressed by the SRP Closure Activities, the City shall have the right to
notify International of such discovery and take such response actions as are
necessary, provided that: (a) the condition constitutes a Pre-Existing
Environmental Condition; (b) each response action complies with the
Agreement; and (c) each response action complies with the SRP Closure
Activities and all applicable Environmental Laws, including applicable terms
of the DB NFR Letter ("Response Actions"). In the event that the City
completes any Response Actions after first notifying International regarding
same, the City shall direct the Escrow Agent to disburse to the City portions
of any remaining DB Environmental Escrow Funds to reimburse the City for
the costs of Response Actions. In the event that all DB Environmental
Escrow Funds have been depleted upon completion of the DB SRP Closure
Activities at the Site prior to the initiation of the Post-SRP Closure Period,
International shall be required to pay the City $100,000 to fund the remaining
DB Environmental Escrow to address potential Unknown Pre-Existing
Environmental Conditions encountered during the Post-SRP Closure Period
that would otherwise be the responsibility of International pursuant to this
Agreement and not otherwise covered by the Environmental Insurance Policy
because either: (1) the Environmental Insurance Policy self-insured retention
amount has not yet been satisfied for a discovered Pre-Existing Environmental
Condition covered by the Environmental Insurance Policy; or (2) the
discovered Pre-Existing Environmental Condition is an excluded pollution
condition under the Environmental Insurance Policy. Upon the expiration of
the Post-SRP Closure Period, any DB Environmental Escrow Funds
remaining in a DB Environmental Escrow (including interest accrued thereon)
shall be returned to International as soon as practicable upon the termination
of the DB Environmental Escrow.
(g) Sharing of Information. Any and all information collected, received, obtained,
or prepared by the Parties or the Parties' Consultants, now or during the term of this
Agreement, including, without limitation, data, laboratory analyses, reports, and
correspondence from or to government agencies and any other documents reasonably
9
related to the subject matter of this Agreement (excluding documents prepared by or for
the Parties' attorneys and which are privileged under applicable laws governing attorney-
client privilege or which constitute privileged attorney work product), shall be provided
promptly by that Party or that Party's Consultant ("Producing Party") upon the request
of the other Party or the other Party's Consultant ("Receiving Party"), as the case may
be.
(1) While the Work is being conducted at the Site, the City agrees to
provide International with drafts of documents concerning Work for each
Development Block that it proposes to submit to the IEPA SRP project
manager ("Site SRP Submissions") for International's review and comment
prior to their submission to the IEPA. International will be required to
provide its reasonable comments, if any, to the City within ten (10) days of
International's receipt of the City's draft Site SRP Submissions so as not delay
SRP Closure Activities or Site development activities and associated
timelines. Unless otherwise agreed upon by both Parties, to the extent
International does not provide substantive comments or revisions to the City's
draft Site SRP submissions within the ten (10) day timeframe, it will then be
assumed that International approves of the Site SRP Submissions in their
current form. The City agrees to incorporate any reasonable written
comments provided by International within the timeframe discussed above to
the extent such comments are consistent with the Work required to obtain a
comprehensive NFR Letter for each Development Block and are consistent
with the Development Plan. In the event of a dispute between the parties
relating to the substance of the City's Site SRP Submissions, it will be
governed by the dispute resolution provisions set forth in Section 13.
(2) If any applicable Agency initiates any meeting with the City or its
Consultant concerning the Pre-Existing Environmental Condition(s) or the
Work, or any component thereof, the City shall notify International at least five
(5) days in advance of such meeting (or as soon as practicable if the Agency
requires a meeting with less than five (5) days notice to the City or its
Consultant), and International or its Consultant or other representative may
attend such meeting and participate if it so chooses. The City shall promptly
provide International with copies of all written comments, notices,
communications, suggestions, permits and permit applications and requirements,
if any, from or to any Agency with respect to the Pre-Existing Environmental
Condition(s), the Work, or any other plan or activity covered by this Agreement
and in no case more than five (5) days after receipt.
(3) If any applicable Agency initiates any meeting with International or its
Consultant concerning the Pre-Existing Environmental Condition(s) or the
Work, or any component thereof, International shall notify the City at least five
(5) days in advance of such meeting (or as soon as practicable if the Agency
requires a meeting with less than five (5) days notice to International or its
Consultant), and the City or its Consultant or other representative may attend
such meeting and participate if it so chooses. International shall promptly
10
provide the City with copies of all written comments, notices, communications,
suggestions, pemuts and permit applications and requirements, if any, from or to
any Agency with respect to the Pre-Existing Environmental Condition(s), the
Work, or any other plan or activity covered by this Agreement and in no case
more than five (5) days after receipt.
(4) The City and International each agree to promptly notify the other party
if either party discovers aPre-Existing Environmental Condition not identified at
the time of the Effective Date of this Agreement or if either the City or
International has reason to believe that a newly discovered or an additional Pre-
Existing Environmental Condition may be present in, on, under or migrating
from the Site.
(5) The City and International shall each provide the other with a copy of
each report to any Agency of a release of Hazardous Material on or from the Site
within five (5) days of submission of such report. The City and International
shall also notify the other in writing of any discovery of an Unknown Pre-
Existing Environmental Conditions at, on, under, or migrating from the Site
which may impact the Site or contribute to any Pre-Existing Environmental
Conditions or proposed Work within five (5) days of such discovery. Upon
request, the City or International shall also provide to the other any existing data
for the City or International to deternune whether the Hazardous Material
released or discovered constitutes aPre-Existing Environmental Condition.
Either Party's failure to notify the other within the time periods provided in this
Section shall not alter in any way each parties respective obligations under this
Agreement.
(g) Access to Property.
(1) The City, as Trustee of the Site under the land trust holding title to the
Site, shall afford International, its consultant, representatives, agents, contractors,
subcontractors, and employees access to the Site at any reasonable time for the
purpose of reviewing or observing the Work; provided, however, such access
may not unduly interfere with the City's activities at the Site. International shall
give the City reasonable notice of any proposed entry upon the Site by
International, its consultant or its representatives, agents, contractors,
subcontractors, and employees.
(2) International, its consultant or its representatives, agents, contractors,
subcontractors, and employees shall comply with the City's reasonable safety
and security requirements and with all Environmental Laws and other laws,
regulations and ordinances applicable to the Work or any other activities
conducted at the Site by International, International's Consultant or its
representatives, agents, contractors, subcontractors, and employees while the
same are on the Site.
(3) The City shall indemnify International, International's Consultant or its
representatives, agents, contractors, subcontractors, and employees for any and
all costs, losses or liabilities arising out of or resulting from any grossly
negligent or willful acts or omissions of the City's employees, the City's
Consultant or its representatives, agents, contractors, subcontractors, and
employees.
(4) International shall indemnify, protect, defend and hold harmless the City,
the City's Consultant, the City's partners, employees, agents, and representatives
from and against any and all costs, losses or liabilities arising out of or resulting
from any grossly negligent or willful acts of International, its affiliates,
Consultant, representatives, agents, contractors, subcontractors, or employees of
each of them, on the Site pursuant to the access granted hereby.
(5) International shall indemnify, protect, defend and hold harmless the City,
the City's Consultant, and the City's partners, employees, agents, and
representatives from and against any and all costs, losses or liabilities arising out
of or resulting from the handling, treatment, storage or disposal of Hazardous
Materials generated as a result of the Work or used or produced in connection
with the access to the Site. International's indemnification obligation under this
Section shall also apply to any costs, losses or liabilities resulting from its
obligations under Section 23(c). International's indemnification obligations
under this Section shall not apply to any costs, losses or liabilities resulting from
negligent or willful conduct by the City, its consultants, partners, employees,
agents, or representatives. This indemnity shall survive the termination of this
Agreement.
(h) Obligation to Cooperate. The City and International shall each cooperate with
the other to enable the completion of the Work in a timely and cost effective manner in
that is consistent with the Development Plan and in accordance with this Agreement.
4. Subcontractors. The City will direct its Consultant to select appropriate
subcontractors to perform aspects of the Work on an as needed basis. The City will direct its
Consultant to use its best efforts to identify and select qualified disadvantaged business
enterprises ("DBEs"), minority-owned business enterprises ("MBEs"), woman-owned
business enterprises ("WBEs") or local community-based businesses as subcontractor
whenever appropriate.
Settlement.
(a) The Parties stipulate that this Agreement is entered into for the purpose of
settlement only and shall not be construed as an admission of any fault or liability
with respect to the Site. Neither the fact that a Party has entered into this Agreement
nor any of the facts set forth herein shall be used for any purpose except to enforce
the terms of this Agreement.
12
(b) Subject to paragraph (c) of this Section, the remedies available to the Parties
pursuant to the terms of this Agreement shall be the Parties' sole means of recovery
from the other Party to the Agreement as it relates to either Party's potential liability
for Pre-Existing Environmental Conditions at the Site.
(c) To the extent that either International or the City is found to be in breach of
any of the terms or conditions of this Agreement by the arbitrator ("Breach"), as set
forth in the dispute resolution procedures in Section 13 of this Agreement
("Breaching Party"), and the Breach in question is not promptly remedied by the
Breaching Party pursuant to the arbitrator's binding decision, the party that was
successful in the arbitration proceedings ("Non-Breaching Party") shall, to the extent
the Breach has not been fully remedied by the Breaching Party pursuant to the
arbitrator's binding decision, be allowed to pursue any other statutory or common law
remedies, either at law or in equity, available to the Non-Breaching Party against the
Breaching Party at the earlier of the following events: (1) the one-year anniversary of
the arbitrator's decision in favor of the Non-Breaching Party; or (2) affirmation of
the arbitrator's binding decision relating to the Breach by a court of law having
jurisdiction over the subject matter relating to the Breach.
6. Mutual Release From Liability.
(a) Following the City's receipt of a final, comprehensive NFR letter for each
Development Block from the Illinois Environmental Protection Agency, for good and
valuable consideration, including the actions that International is required to take
pursuant to this Agreement, the City, on its own behalf and on behalf of its elected
and appointed officials, officers, agents and employees, releases, waives and
discharges International, its past and present directors, officers, employees, agents,
representatives, attorneys, predecessors, successors, parents, subsidiaries, affiliates,
joint ventures, insurers, assignees, and all other persons (natural or otherwise) acting
by, through, under or in concert with International, in their individual, fiduciary and
corporate capacities, from any and all claims, demands, damages, losses or actions
from the beginning of time to the date of the execution of this Agreement, whether
known or unknown, absolute or contingent, made or asserted or those that could be
asserted by the City against International related to the Site, including any claims
arising out of any action International has taken or failed to take with respect to the
Site. The release set forth in this paragraph shall not apply to any and all claims for
contribution (whether equitable, legal, statutory or otherwise) arising out of claims
asserted by non-Parties to this Agreement
(b) Following the City's receipt of a final, comprehensive NFR letter for each
Development Block from the Illinois Environmental Protection Agency, for good and
valuable consideration, including the actions that the City shall take pursuant to this
Agreement, International, on its own behalf and on behalf of its past and present
directors, officers, employees, agents, representatives, attorneys, predecessors,
successors, parents, subsidiaries, affiliates, joint ventures, partners, insurers,
assignees, and all other persons (natural or otherwise) acting by, through, under or in
concert with International, releases, waives and discharges the City, its elected and
13
appointed officials, officers, agents, and employees, in their individual and/or official
capacities, from any and all claims, demands, damages, losses or actions from the
beginning of time to the date of the execution of this Agreement, whether known or
unknown, absolute or contingent, made or asserted or those that could be asserted by
International against the City related to the Site, including any claims arising out of
any action the City has taken or failed to take with respect to the Site. The release set
forth in this paragraph shall not apply to any and all claims for contribution (whether
equitable, legal, statutory or otherwise) arising out of claims asserted by non-Parties
to this Agreement.
(c) Notwithstanding the mutual release provisions set forth in paragraphs (a) and
(b) above, in the event that an Unknown Pre-Existing Environmental Condition is
discovered at the Site or new information is obtained from either Party or a third party
that could potentially invalidate a NFR Letter or NFR Letter(s) previously issued by
the IEPA for the Site or a Development Block at the Site ("Potential NFR Letter
Invalidation Event"), the Parties will bring the Potential NFR Invalidation Event to
the attention of the IEPA Project Manager having responsibility for the Site to obtain
a determination from the IEPA regarding whether the Potential NFR Letter
Invalidation Event does in fact invalidate a NFR Letter or NFR Letters at the Site. If
the IEPA determines that the Potential NFR Letter Invalidation Event does invalidate
a NFR Letter at the Site, the mutual release provisions contained in paragraphs (a)
and (b) in this Section will be suspended until the Potential NFR Letter Invalidation
Event is remedied and a revised NFR Letter is issued by the IEPA for the Site or the
specific Development Block in question, or in the alternative, the IEPA issues a letter
or other written determination to the City that the prior NFR Letter is valid (either
because the Potential NFR Letter Invalidation Event has been remedied or the
Potential NFR Letter Invalidation Event does not negatively effect the validity of the
previously-obtained DB NFR Letter). Any Work required to restore the validity of an
invalidated NFR Letter at the Site shall be governed by the provisions of this
Agreement. To the extent SRP Closure Activities are required to remedy a Potential
NFR Letter Invalidation Event, such costs shall be applied against the Environmental
Insurance Policy for the Site, and to the extent such costs are not covered by the
Environmental Insurance Policy, they shall be paid for by any remaining funds in the
DB Environmental Escrow.
(d) However, nothing in this Agreement shall be construed as a waiver by either
Party to prosecute or otherwise take action with regard to a breach of the terms and
conditions of this Agreement or obtain fines or penalties, if any, for any violations of
law, including but not limited to Environmental Laws, that arise or result from acts,
omissions, or new Site conditions that occur after the Effective Date of this
Agreement (i.e., Hazardous Material releases that occur from chemicals brought onto
the Site after the Effective Date of this Agreement).
(e) The City shall obtain certification from any party that purchases the Property
that such party will continue to maintain the property in accordance with the terms
and conditions of the applicable DB NFR letter. In the alternative, the City may enact
ordinances and impose other restrictive covenants on future purchasers to ensure
14
compliance with the terms and conditions of the DB NFR letter(s). In addition, the
City shall use its best efforts to obtain a written acknowledgement from any
purchasers of the Site, or any portion thereof, that such purchasers agree to be subject
to the mutual release from liability provisions set forth in Section 6 of this
Agreement.
(f) The provisions of this Section 6 shall survive the termination of this
Agreement.
7. Environmental Insurance. Within 30 days of the Effective Date of this Agreement,
International hereby agrees to procure and bind pollution legal liability insurance coverage
for Unknown Pre-Existing Environmental Conditions at the Site ("Environmental Insurance
Policy"). International shall contribute the full premium amount for this Environmental
Insurance Policy and associated taxes. The City and International shall be named as first
named insureds under such Environmental Insurance Policy, with any future Site end-users
to be named as additional insureds. To the extent that any claim with respect to such
Unknown Pre-Existing Environmental Conditions arises (an "Environmental Insurance
Policy Claim"), the City or International agrees to submit such Environmental Insurance
Policy Claim upon becoming aware thereof directly to the insurer with reasonable notice to
the other party and undertake all necessary notices and communications with the insurer
under the Environmental Insurance Policy for potential payment. Any proceeds received by
the City or International pursuant to claim filed under the Environmental Insurance Policy
shall be promptly deposited into the DB Environmental Escrows) open at the time the
proceeds are received by either Party pursuant to the terms and conditions set forth in Section
3(f) of this Agreement. The Environmental Insurance Policy specifications shall include, at a
minimum: (1) $IOMM in aggregate limits; (2) aself-insured retention (i.e., deductible) not to
exceed $100K; (3) a one-time policy premium that is between $75K and $300K; and (4) a ten
(10) year policy term.
8. Remedies.
(a) Default. The following events are hereby deemed an event of default by a party
under this Agreement:
(1) If the City or International ("Non-Defaulting Party") reasonably and in
good faith determines that the other party ("Defaulting Party") has failed to
comply with its obligations under this Agreement, the Non-Defaulting Party
shall provide written notice to the Defaulting Party of such default. The notice
shall describe the nature of the default. If the default concerns a failure to pay
money which is a breach of this Agreement, the Defaulting Party shall have
fifteen (15) days from receipt of the notice to cure the default. If the default is
not monetary, the notice shall describe the action(s) to be taken within the next
twenty-five (25) days to cure the default, and the Defaulting Party shall have
twenty-five (25) days from receipt of such notice to cure the default. If, after
receiving a notice of anon-monetary default, the Defaulting Party reasonably
believes that the default can and should be cured by actions different from those
15
specified in the notice, and such actions can be accomplished within the twenty-
five (25) days, or within a reasonable period thereafter (such period to be
determined by the Non-Defaulting Party in its sole discretion), the Defaulting
Party shall so notify the Non-Defaulting Party, and the Non-Defaulting Party and
the Defaulting Party shall promptly meet and confer. If the Defaulting Party's
proposed method of curing the default is acceptable to the Non-Defaulting Party
then such default shall be cured if, within twenty-five (25) days of first receiving
notice of anon-monetary default, (or within such other reasonable period
approved in writing by the Non-Defaulting Party in its sole discretion), the
Defaulting Party has commenced and completed the action(s) specified in the
original notice or any revised notice of default.
(2) In the event that International defaults in the performance of any of its
monetary obligations under this Agreement, and fails to cure that default
within fifteen (15) days, pursuant to Section 8(a) above, the City has the right
to perform the Work itself with International fully indemnifying and
reimbursing the City for any reasonable and appropriate Work activities the
City performs pursuant to this Section 8, within twenty five (25) days of the
City's written demand for payment of same.
(3) The Non-Defaulting Party's exercise of any and all of its rights under
Section 8(a) shall not alter in any way the Defaulting Party's obligation to
indemnify the Non-Defaulting Party and its Related Parties as provided in this
Agreement.
(b) No Waiver. In the event the Non-Defaulting Party is required to undertake any
Work, or component thereof, or otherwise undertakes any action the Non-Defaulting
Party deems reasonably necessary in response to any emergency, deficiency, violation,
or hazard at the Site arising from the Work, such action shall not constitute a waiver of
any right or remedy for any breach or default under this Agreement; provided, however,
that such action shall be preceded by written notice, if feasible, prior to such action and,
if feasible, by providing the Defaulting Party reasonable opportunity to respond to such
emergency, deficiency, violation or hazard.
9. Clean Site. If International conducts any activities at the Site, International shall cause
its contractors and subcontractors to remove from the Site any tools, equipment, materials, or
debris placed on the Site by International's contractors or subcontractors resulting from any
activities conducted by International at the Site, and such obligations shall include but not
limited to maintaining, removing and properly disposing (in accordance with applicable
Environmental Laws) of any Hazardous Material excavated by International's Consultant or
contractors during the performance of the Work.
10. Termination. Except for those provisions which by their own terms survive
termination of this Agreement, this Agreement shall terminate upon the completion of all Work
at each of the Development Blocks and the issuance of comprehensive NFR Letters by the IEPA
for all of the Development Blocks at the Site.
16
11. Community Relations. The Parties agree to use their mutual best efforts to keep the
local community apprised of the status of the Work at the Site. The Parties agree to use their
best efforts to cooperate in all such communications with the local community.
12. Insurance. If International or its Consultant observes or oversees the Work
conducted by the City or its Consultant on the Site or conducts any of the Work activities at
the Site, International shall procure and maintain, or cause to be procured and maintained, at
International's sole expense (or the expense of its contractors or subcontractors as
applicable), during the entire term of this Agreement, the types and amounts of insurance set
forth below with insurance companies authorized to do business in the State of Illinois.
(a) Worker's Compensation and Employer's Liability Insurance. International
and its contractors and subcontractors shall procure and maintain Worker's
Compensation Insurance, as prescribed by applicable law, covering all
employees who are to provide a service under this Agreement, and
Employer's Liability Insurance with limits of not less than $500,000 each
accident or illness.
(b) Commercial General Liability Insurance (Primary and Umbrella).
International and/or its contractors and subcontractors shall procure and
maintain Commercial General Liability Insurance, or equivalent, with limits
of not less than $1,000,000 for bodily injury, personal injury, and property
damage liability; provided, however, subcontractors performing work in
connection with this Agreement may maintain limits of $1,000,000 if the
subcontract amount is less than $100,000. Coverage shall include, at a
minimum, all premises and operations, products/completed operations,
independent contractors, separation of insureds, defense, and contractual
liability (with no limitation endorsement). The City of Canton shall be named
as an additional insured on a primary, non-contributory basis for any liability
arising directly or indirectly from the Work.
(c) Automobile Liabili~ Insurance (Primary and Umbrella). When any motor
vehicles (owned, non-owned and hired) are used in connection with the Work,
International and/or its contractors and subcontractors shall procure and
maintain Automobile Liability Insurance with limits of not less than
$1,000,000 for bodily injury and property damage; provided, however,
subcontractors performing work in connection with this Agreement may
maintain limits of $1,000,000 if the subcontract amount is less than $100,000.
The City of Canton shall be named as an additional insured with respect to
such coverage on a primary, non-contributory basis.
International shall deliver, or cause its contractors or subcontractors to deliver, to the City
certificates of insurance required hereunder. International shall have the City and its
Consultant named as an additional insured on such certificates of insurance. The receipt of
any certificate does not constitute agreement by the City that the insurance requirements in
this Agreement have been fully met or that the insurance policies indicated on the certificate
are in compliance with all requirements set forth herein. The failure of the City to obtain
17
certificates or other evidence of insurance from International (or its contractors or
subcontractors as applicable) shall not be deemed to be a waiver by the City of the insurance
requirements set forth herein. International shall advise all insurers of the insurance
requirements set forth herein.
13. Dispute Resolution. The Parties shall use their best efforts to cooperate in
effectuating the terms of this Agreement. If the Parties are unable to reach agreement,
however, the Parties agree to seek binding review by an independent third party.
(a) In the event that International or the City cannot otherwise resolve a dispute
relating to the Work, or any component thereof ("Work Conflict") in good faith, then, within
ten (10) days after either party notifies the other party in writing that a Work Conflict exists
pursuant to this paragraph, the City's designated consultant and International's designated
consultant shall confer and identify a third independent environmental consultant (the "Third
Consultant") who shall be jointly retained and compensated by the City and International and
who will issue a binding determination on the appropriate approach and resolution relating to
the Work Conflicts(s). The Third Consultant shall be provided with a document submission
setting forth the position of the parties on the Work Conflict(s) and any other documents or
information that the Third Consultant requests. Further, each party shall simultaneously
provide a written submission to the Third Consultant, not to exceed ten (10) pages, setting
forth its rationale and conclusions as to their position on the Work Conflict(s). The Third
Consultant, within 15 days of receiving the parties' written submissions, shall issue a written
Third Consultant Determination setting forth its findings and proposed solution for the Work
Conflict(s). The Third Consultant Determination shall be: (1) binding on both Parties; (2)
consistent with Environmental Laws, including but not limited to SRP, the Site Cleanup
Standards, and other applicable TACO rules and regulations; (3) consistent with the terms
and conditions of this Agreement; (4) consistent with the Development Plan; and (5) shall be
incorporated into the DB Work Scope in question and implemented accordingly by the
Parties. Each party shall bear its own costs with the fees and expenses of the Third Party
Consultant which will be shared equally by the parties.
(b) In the event that either the City or International provides written notice to the
other party within 10 days of the rendering of the Third Consultant Determination
challenging the Third Consultant Determination, or if the dispute between the Parties consists
solely of a question of law (unrelated to an interpretation of SRP and/or TACO requirements)
or a legal interpretation of the provisions of this Agreement ("Legal Dispute"), the parties
agree to resolve the Work Conflict or Legal Dispute by taking part in an arbitration
proceeding governed by the Arbitration Rules of the American Arbitration Association
("AAA"). The arbitrator shall be jointly selected and agreed upon by the parties. These
discussions shall be treated as confidential settlement discussions. In the event of an
arbitration, each party shall bear its own costs with the fees and expenses of the arbitrator to
be shared equally by the parties. Any decision(s) rendered by the arbitrator may be appealed
by either Party.
14. Waiver. Any waiver by either party of any breach of any term or condition of this
Agreement shall not operate as a waiver of any other breach of such term or condition or of any
other term of condition, nor shall any failure to enforce such provision hereof operate as a
18
waiver of such provision or of any other provision hereof, nor constitute nor be deemed as a
waiver or release of any other party for anything arising out of, connected with or based upon
this Agreement.
15. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective transferees, successors, lenders, tenants, purchasers and
assigns. Either party shall be entitled to assign or transfer its rights hereunder or delegate its
duties hereunder without the prior written consent of the other party provided, however, in the
event of any such assignment or transfer, the assignor shall not be released from its obligations
hereunder.
16. Attorneys' Fees. In the event of any arbitration (pursuant to Section 13(b)) or litigation
(collectively, a "Legal Action") involving the parties to this Agreement to enforce any provision
of this Agreement, to enforce any remedy available upon default under this Agreement, or
seeking a declaration of the rights of either party under this Agreement, the prevailing party
shall be entitled to recover from the other reasonable attorneys' fees and costs as may be
reasonably incurred by the prevailing party, including the costs of reasonable investigation,
preparation, and professional or expert consultation incurred by reason of a Legal Action as
deternuned by the arbitrator or court. The term "prevailing party" as used herein includes a
party: (i) who obtains all of the relief it has sought; or (iii) against whom a Legal Action is
dismissed (with or without prejudice).
17. Severabilitv. If any term, covenant, condition or provision of this Agreement, or the
application thereof to any person or circumstance shall to any extent be held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
covenants, conditions, and other provisions of this Agreement, or the application thereof to any
person or circumstance, shall remain in full force and effect and shall in no way be affected,
impaired, or invalidated thereby.
18. Time is of the Essence. Time is of the essence in the execution and performance of this
Agreement and each provision hereof.
19. Entire Agreement. This Agreement, together with all Exhibits to it, constitute the
entire agreement between the parties respecting the subject matter hereof and supersedes all
prior understandings and agreements, whether oral or in writing, between the parties respecting
the subject matter hereof.
20. Legal Advice; Neutral Interpretation; Captions. Each party has received
independent legal advice from its attorneys with respect to the advisability of executing this
Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be
construed as to their fair meaning, and not for or against any party based upon any attribution to
such party as the source of the language in question. Headings used in this Agreement are for
convenience of reference only and shall not be used in construing this Agreement.
21. Exhibits: Sections. All exhibits to which reference is made in this Agreement are
deemed incorporated in this Agreement, whether or not actually attached. References to
Sections are to sections of this Agreement unless stated otherwise.
19
22. Amendment. This Agreement including any Exhibit to it may be amended at any time
by the written agreement of the City and International. All amendments, changes, revisions and
discharges of this Agreement, in whole or in part, and from time to time, shall be binding upon
the parties despite any lack of legal consideration, so long as the same shall be in writing and
executed by the parties hereto.
23. Relationship of Parties• Generator Status; Documents.
(a) The City and International are independent parties and neither one is acting on
behalf of the other with respect to the Work. Any contractors or subcontractors
performing Work on the Site and any other persons entering the premises in connection
with the Work on behalf of the City shall be deemed to be agents of the City.
(b) The parties agree that nothing contained herein shall constitute either party to be
the agent or legal representative of the other for any purpose whatsoever, nor shall this
Agreement be deemed to create any form of business organization between the parties
hereto, nor is either party granted any right or authority to assume or create any
obligation or responsibility on behalf of the other party, nor shall either party be in any
way liable for any debt of the other except as specifically provided otherwise herein.
(c) Generator Status. If wastes are generated in conjunction with the Work that
require off-site disposal pursuant to applicable Environmental Laws ("Regulated
Waste(s)"), and/or if it becomes necessary to obtain a United States Environmental
Protection Agency identification number, or to handle, transport, and/or dispose of such
Regulated Waste(s), then International shall obtain such identification number for the
transport and disposal of the Regulated Waste(s), and International shall designate itself
as such generator in any agreement or document required by a third party in connection
with the handling, transportation, and/or disposal of such Regulated Waste(s). Subject
to International's obligations set forth in this Agreement, including but not limited to the
Parties' Work Cost Allocations in Exhibit C, and to the extent the City, the City's
consultants and/or subcontractors undertake the Work on the Site, the City shall be
responsible for the handling, transport and disposal of any Regulated Waste(s) subject to
International executing all necessary documents as the generator of such Regulated
Waste(s).
(d) Documents. Following completion of any phase of the Work, the City shall
deliver to International copies of all contracts, rights, warranties, guaranties, files, books
and records and plans and specifications and other materials relating to the Work except
that the City shall be entitled to retain copies thereof.
24. Survival of Covenants. The covenants, representations, warranties, commitments, and
obligations which by their terms are not to be performed or completed before the expiration or
earlier termination of this Agreement, shall, where applicable, survive the expiration or early
termination of this Agreement for any reason.
20
25. Good Faith. Notwithstanding anything to the contrary contained in this Agreement, the
City and International agree and acknowledge that they are entering into this Agreement in
reliance on the other party's agreement to use "good faith" in carrying out the terms of the
Agreement and in the exercise of all of their respective rights and obligations hereunder.
Accordingly, (i) whenever the consent, approval, authorization, certification, preparation of
scopes of work and reports, comments and objections, or other actions of either party
(collectively "Approvals") is required or taken hereunder except as otherwise specifically
provided for herein, such Approvals shall not be unreasonably withheld or unduly delayed and
(ii) whenever any request is made by the City or International for documents or information, or
request is made to the City or International to take some specific action (collectively "Request"),
such Request shall not be unreasonably made and, in connection with all of the foregoing, all
actions by the City or International hereunder shall take into account the sophistication of the
parties, the complexity of the transaction, and the parties hereto shall act in a manner consistent
with the standards by which similar parties would act under the circumstances.
26. Further Acts. Each party agrees to perform any further acts and to execute,
acknowledge, and deliver any documents which may be reasonably necessary to carry out the
provisions of this Agreement, including but not limited to the development of DB Work Scopes
required by this Agreement.
27. Notice. Any notice required pursuant to the terms of this Agreement shall be
delivered to the respective Parties at the following addresses:
To the City: Canton City Government
Attn: Mayor of Canton
2 North Main Street
Canton, IL 61520
With a copy to: Canton City Government
Attn: City Attorney
2 North Main Street
Canton, IL 61520
With a copy to: Bell, Boyd & Lloyd LLP
Attn: Michael K. Ohm or Jay Truty
70 West Madison Street, Suite 3100
Chicago, Illinois 60602
To International: Vice President, Environmental Affairs
International Truck & Engine Corporation
4201 Winfield Road
P.O. Box 1488
Warrenville, IL 60555
With copy to: Senior Counsel
International Truck & Engine Corporation
4201 Winfield Road
21
P.O. Box 1488
Warrenville, IL 60555
28. Counterparts. This Agreement may be executed in counterpart originals, each of
which shall be deemed an original, with the same effect as if the signatures thereto were on
the same instrument. This Agreement together with the Exhibits hereto contains the entire
understanding of the Parties and it supersedes and replaces all prior negotiations, statements,
and representations except as contained herein.
29. Choice of Law. This Agreement shall be governed by the laws of Illinois irrespective
of its conflict of laws principles.
30. Tolling. To the extent that the terms and conditions of Section 5(c) of this
Agreement are triggered, the City and International agree to toll any and all statutes of
limitation (including any similar limitations or repose periods) during the Tolling Period
regarding any civil action which the City may file against International relating in any way to
the issues resulting from historic International operations. For purposes of this Agreement,
"Tolling Period" shall be that period of time commencing on. the Effective Date of this
Agreement up and until the date on which the IEPA issues the last final NFR Letter for the
Site and/or subdivision therein. The City and International agree that any defenses or claims
asserting laches, estoppel, waiver, or other similar equitable defenses based upon the running
or expiration of any time period, which International may assert in defense of a claim by the
City shall not include the Tolling Period. International understands and agrees that the City
retains the right to pursue available legal remedies during the Tolling Period. By signing this
Agreement, the City does not admit or acknowledge that any statute of limitations or similar
defense concerning the timeliness of commencing a civil action, is applicable in any civil
action which the City may file against International. The City understands and agrees that,
through this Tolling Agreement, International does not admit or acknowledge that the City
has any valid claims against International.
22
May 16 07 09:OSa Canton Mayor's Office 3096472349 p•2
MAY. 10, 2007~14:17Ah~,PM nLAW DEPARTMEflT N0. 140 P. 2'z
1N R'ES S '~oF, uic gas hereto hsve duly execated this ~ as
of the date fast writtea abovo.
nV'rERNATYONaL T~t~OCI{ & ENGxN~ CQgpoRATION
Br
L ~ ~~~~
Tlsle: t G r~l ~~~n.T" ~ ~~'~''7rht~+~
CITY OF C~dN, iL~O~
..
n
.; ,
B ~.
~r
T i~tle:
23
Exh_
Former International Harvester Site Legal Description
Lots 1, 2, 3, 4, 5, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 28, 29, 30, 31, 32, 33, 34, 35,
36, 37, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 67, 68, 69, 70, 71, 72, 89, 90, 91, 92, 93, 94,
111, 112, 113, 114, 115, 116, 134, 135, 136, 137, 138, and 139; all in WRIGHT'S
ADDITION to the City of Canton, situated in the County of Fulton and State of Illinois.
8 feet off the South side of Lot 4; North 33 feet of West 99 feet of Lot 5; the South
Half of Lot 5; Lots 6, 10, 11, 12, 13, 14; Lot 15; EXCEPT the North 50 feet; Lots 44, 57, 58,
61, 154, 155, 156 and 157; all in BARNES AND JONES ADDITION to the City of Canton,
situated in the County of Fulton and State of Illinois.
Blocks 1, 2, 3 and 4 in PARLIN AND ORENDORFF CO. SUBDIVISION of part of
Barnes and Jones Addition to the City of Canton situated in the County of Fulton and State of
Illinois.
Blocks 5 and 6 in PARLIN AND ORENDORFF CO. SECOND SUBDIVISION of
part of Barnes and Jones Addition to the City of Canton, situated in the County of Fulton and
State of Illinois.
The East Half of Lot 71; the East Half of Lot 72; the South 37 feet of Lot 73; the East
Half of Lot 73; EXCEPT the South 37 feet thereof; Lots 74 and 75; all in JONES SECOND
ADDITION to the City of Canton, situated in the County of Fulton and State of Illinois.
Part of the Southeast Quarter of Section 27, Township 7 North, Range 4 East of the
Fourth Principal Meridian, Fulton County, Illinois, lying South of Lot 75 in JONES
SECOND ADDITION to the City of Canton lying North of the Section line dividing the
Southeast Quarter of Section 27 and the Northeast Quarter of Section 34, in Township 7
North, Range 4 East of the Fourth Principal Meridian, situated in Fulton County, Illinois.
The North Half of vacated East Walnut Street from the East line of South Second
Avenue to the West line of South Fourth Avenue in the City of Canton.
The South Half of vacated East Walnut Street from the East line of South Second
Avenue to the West line of the Burlington Northern (formerly C.B. & Q) Railroad right of
way in the City of Canton.
The vacated alley lying West of Lots 3, 14, 19, 30, 35, 46 and 51 and East of Lots 4,
13, 20, 29, 36, 45 and 52 in WRIGHT'S ADDITION to the City of Canton.
Vacated South Third Avenue lying South of East Walnut Street and North of East
Maple Street in the City of Canton.
The vacated alley lying West of Lots 1, 16, 17, 32, 33, 48 and 49 and East of Lots 2,
15, 18, 31, 34, 47 and 50 in WRIGHT'S ADDITION to the City of Canton.
Vacated Maple Street from the center line of the main track of the Burlington
Northern (formerly C.B. & Q) Railroad West to a line extended from the Southwest corner of
Lot 51 to the Northwest corner of Lot 67 in WRIGHT'S ADDITION to the City of Canton.
The vacated North 18 feet of East Maple Street from the East line of Second Avenue
to the Southwest corner of Lot 51 in WRIGHT'S ADDITION to the City of Canton.
Vacated Fourth Avenue from the South line of East Elm Street to the centerline of
East Walnut Street and being 8.5 feet West of the Center line of the main track of the
Burlington Northern (formerly C.B. & Q) Railroad in the City of Canton.
The vacated alley lying East of Lots 68, 71, 90, 93, 112, 115, 135 and 138 and West
of Lots 69, 70, 91, 92, 113, 114, 136 and 137 in WRIGHT'S ADDITION to the City of
Canton.
Vacated Second Avenue from the South line of East Pine Street to the North line of
East Maple Street in the City of Canton.
Vacated East Walnut Street from the West line of Second Avenue to the East line of
Van Buren Court in the City of Canton.
Vacated South Third Avenue from the South line of East Maple Street to the North
line of Railroad Street in the Ciry of Canton.
All situated in Fulton County, Illinois.
' ~ g
O
~ 2 ~
a N
~ O
4
1A x
n oq
0
a~o~d uos~apuy
laa~lS a~doW ls~3
laarlShuluMlso3 F
~'
a~
m
vi
0
c
0
V
N
t
J
O
o laa~IS wl3lso3
N
M
~~b
n`
ti
C C « q
w g e o
d es=
-=
~b a
~ ! O ~
m ~ ~ C
C'e"=U
E H e
O G
n ~
o e e
> 0 0
D c~
.~. y e
= LL
0
°o
a
0
0
c
0
a `e
a
~ E
a ~
c Z
A A
O G
G V
v
e °
a m
0
0
z
ti
a,
`o
n
a:
`w
v
0
m
O
O
'a
as
m
0
W
' o
Exhibit C
Allocation of Costs of Work
FENCING. The City will maintain necessary fencing at the Site. City shall be
responsible for 100% of the costs associated with this component of the Work.
2. UNDERGROUND STORAGE TANKS ("USTs"). International will remove and/or
properly close any USTs and associated piping in accordance with Environmental
Laws. For purposes of this paragraph, a UST shall be any enclosed physical tank,
vessel, metal, or synthetic plastic material and any associated piping directly attached
to the UST and/or required to be removed by the Office of State Fire Marshall or
government agency having jurisdiction at the Site (i.e., US EPA, IEPA, etc.).
International shall be responsible for 100% of the costs associated with this
component of the Work.
3. SITE SECURITY. The City will maintain necessary security at the Site. The City
shall be responsible for 100% of the costs associated with this component of the
Work.
4. PRE-EXISTING ENVIRONMENTAL CONDITIONS. The City will conduct all
necessary and appropriate investigations and remediation (including disposal if
required by Environmental Laws) of any Pre-Existing Environmental Condition(s) as
are necessary to complete SRP Closure Activities and obtain comprehensive NFR
Letters from the IEPA, that are consistent with the Development Plan, for each of the
Development Blocks at the Site; PROVIDED HOWEVER, the City shall utilize
commercially reasonable and cost-effective SRP closure methods (i.e., IEPA-approved
engineered barriers and institutional controls) to the maximum extent practicable that are
consistent with the Development Plan. International shall be responsible for 100% of
the costs associated with this component of the Work.
5. DEVELOPMENT-DRIVEN ALTERNATIVE REMEDY COSTS. The City may
require specific engineered barriers and/or more stringent remedial standards (i.e.,
residential) as a part of the SRP Closure Activities for a certain Development Block
or Blocks as a result of certain specifications contained in the Development Plan(s) or
otherwise required by a future Site end-user for its facility that are above and beyond
what would otherwise be required by the IEPA under TACO that are necessary to
obtain acommercial/industrial use NFR Letter under the SRP that would also allow
commercially-reasonable development activities at the Site to occur. International,
however, will only be responsible for paying the costs associated with IEPA SRP-
approved engineered barriers and TACO commercial/industrial remediation
objectives utilized as a necessary part of the overall required SRP Closure Activities
that satisfy Site Cleanup Standards and allow for commercially-reasonable
development activities to occur at the Site ("Basic Commercial SRP Closure
Components"). The City or the potential Site end-user agrees to pay any incremental
cost increases in the DB SRP Closure Activities due to the utilization of more
expensive engineered barriers (i.e., concrete foundation) or more stringent TACO
remedial objectives (i.e., residential use) required by the Development Plan and/or
preferences of a specific end-user at the Site ("Development-Driven SRP Closure
Component"). In the event of a disagreement related to the City's notification of an
alternate remedy, the dispute shall be resolved pursuant to Section 13 of this
Agreement. See Section 8 below for examples of the operation of the provisions of
Sections 5 and 6 of this Exhibit C.
6. APPLICATION OF SITE AGENCY GRANTS BY THE CITY. In the event that the
City applies a Site Agency Grant or Grants towards Work that International
otherwise has financial responsibility for under this Agreement (including this Exhibit
C) pursuant to the provisions of this Agreement, International shall be required to
reimburse the City for 65% of the amount of the Site Agency Grant(s) applied to SRP
Closure Activity costs offset by such Site Agency Grants that would otherwise be the
responsibility of International pursuant to this Agreement and the allocation of costs
set forth in this Exhibit C ("Site Agency Grant Reimbursement Funds"). See Section
8 below for an example of the operation of the provisions of Sections 5 and 6 of this
Exhibit C.
7. SITE REMEDIATION PROGRAM COSTS. International will pay 100% of the
programmatic and administrative costs associated with the Site's participation in the
State of Illinois' SRP, including but not limited to the preparation of all submissions
required by the SRP to obtain NFR Letters for all of the Development Blocks
comprising the Site.
8. EXAMPLES OF OPERATION OF PROVISIONS OF SECTIONS 5 AND 6 OF
EXHIBIT C. For purposes of this example only (and the costs are purely for
demonstration purposes only and should not be considered the actual SRP Closure
Activity Costs associated with any Development Block used in the example below), it
shall be assumed that the following components and hypothetical costs of the SRP
Closure Activities, Site Agency Grants, and DB Work Scope Cost Estimates for the
Western Block are as follows.
(i) Example A: Western Development Block Work Scope Costs: $250,000
(cost estimate for completion of required SRP Closure Activities for
Western Development Block as determined by the Parties pursuant to the
Work Scope development procedures set forth in the Agreement. SRP
Closure Activities includes $100,000 for asphalt-based engineered barrier -
"Basic Commercial SRP Closure Component").
(ii) Example B: Western Development Block Work Scope Costs: $300,000
(cost estimate for completion of required SRP Closure Activities for
Western Development Block as determined by the Parties pursuant to the
Work Scope development procedures set forth in the Agreement. SRP
Closure Activities includes $150,000 for concrete-based engineered barrier
required by the parcel end-user and/or the City pursuant to the Site
Development Plan (Under this Example, there is a $50,000 increase between
estimated SRP Closure Activity costs due to utilization of a concrete-based
engineered barrier - "Development-Driven SRP Closure Component").
(iii) Eligible Site Agency Grants for Western Block for Western Block SRP
Closure Activities (same amount applicable to both Scenario A and B
above) -- $100,000 (Site Agency Grants).
Under Scenario A above, $100,000 (Site Agency Grants) would be
deducted from $250,000 and the balance ($150,000) would be multiplied
by 105% _ $157,500. This amount would be paid to the City and the
City would deposit this amount in the DB Environmental Escrow
established for the Western Development Block to implement the DB
Work Scope for the Western Development Block pursuant to the terms
and conditions of this Agreement. International would then be required
to reimburse the City for $65,000 (65% of Site Agency Grants applied to
SRP Closure Activity Costs for the Western Block that would otherwise
the responsibility of International under this Agreement ("Site Agency
Grant Reimbursement")). The City would be allowed to utilize the Site
Agency Grant Reimbursement for other activities at the Site. Therefore,
International's total cost obligation in this example would be $225,500
($157,500 + $65,000).
The components of Scenario B would operate exactly the same as
Scenario A above, with the only difference being that the City (or parcel
end-user) would be required to contribute $50,000 (difference between
cost of an IEPA-approved asphalt barrier (Basic Commercial SRP
Closure Component) and the cost of an IEPA-approved concrete barrier
(Development-Driven SRP-Closure Component). The $65,000 Site
Agency Grant Reimbursement could then be applied by the City to the
increased-costs associated with the implementation of the concrete
engineered bamer. Therefore, International's total cost obligation in this
example would be $225,500 ($157,500 + $65,000).
Exhibit D
[First DB Work Scope]
Exhibit E
[Second DB Work Scope]
Exhibit F
[Third DB Work Scope]