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HomeMy WebLinkAboutResolution # 3769RESOLUTION NO. 3769 A RESOLUTION APPROVING A TIERED APPROACH TO CORRECTIVE-ACTION OBJECTIVES AGREEMENT (TACO AGREEMENT) WITH THE MARATHON PETROLEUM CQMPANY, LCC AND AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK OF THE CITY OF CANTON TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF CANTON WHEREAS, the Marathon Petroleum Company, LLC has requested that the City of Canton consider entering into a Highway Authority Agreement, also referred to as a TACO Agreement with Marathon for the former Marathon Station located at 610 North Main Street, Canton, Illinois; and WHEREAS, the City Council of the City of Canton, Illinois has reviewed the terms of the proposed TACO Agreement, a copy of which is attached hereto and incorporated herein as Exhibit A; and WHEREAS, the City Council of the City of Canton, Illinois has determined that it is desirable and in the best interest of the City of Canton to approve said TACO Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF CANTON, ILLINOIS, AS FOLLOWS: 1. That the TACO Agreement between the City of Canton and Marathon Petroleum Company, LLC, which is attached hereto and incorporated herein as Exhibit A, is hereby approved in the form attached as Exhibit A, said TACO Agreement to be subject to and effective pursuant to the terms and conditions set forth therein. 2. That the Mayor and the City Clerk of the City of Canton, Illinois are hereby authorized and directed to execute said TACO Agreement on behalf of the City of Canton. 3. That this Resolution shall be in full force and effect immediately upon its passage by the City Council of the City of Canton, Illinois and approval by the Mayor thereof. PASSED by the City Council of the City of Canton, Illinois at a regular meeting this 5th day of September , 2006 upon a roll call vote as follows: AYES: Aldermen Reed, Schenck, Meade, Sarff, West, Hartford.., Berardi.. NAYS: None. ABSENT: ~-dern~an Carl, APPROVED: Rodney W. Heinze Mayor ATTEST: Nancy S. Whites City Clerk TIERED APPROACH TO CORRECTIVE-ACTION OBJECTIVES AGREEMENT This Agreement is entered into this day of 2006 pursuant to 35 III. Admin. Code Section 742.1020 by and between Marathon Petroleum Company LLC, referred to herein as "Owner/Operator", and the City of Canton. Illinois ("City") as follows: 1. This Agreement is not binding upon the City until it is executed by the undersigned representative of the City and prior to execution, this Agreement constitutes an offer by Owner/Operator. 2.a. Owner/Operator is pursuing a corrective action of a Site and of the right-of-way adjacent to the boundary of the Site located at 610 N. Main St. Canton. Illinois (the "Site"). 2.b. Attached as Exhibit A are site maps prepared by Owner/Operator which show the area of estimated contaminant impacted soil and groundwater at the time of this Agreement in the right- of-way above Tier 1 residential levels under 35 III. Admin. Code Part 742. Also shown in Exhibit Aare tables prepared by Owner/Operator showing the concentration of contaminants of concern attributable to Owner/Operator, hereafter "Contaminants", in soil and/or groundwater within the Site and which shows the applicable Tier 1 soil remediation objectives for residential property and Tier 1 objectives for groundwater of the Illinois Pollution Control Board ("IPCB") which are exceeded along the boundary of the Site adjacent to the Right-of-Way. The right-of- way, and only the right-of-way, as described in Exhibit B, hereinafter the "Right-of-Way", adjacent to the Site is subject to this Agreement. As the drawings in the Exhibits are not surveyed plats, the boundary of the Right-of Way in the Exhibits may be an approximation of the actual right-of-way lines. The Right-of-Way has been sampled for Contaminants and the parties believe that the area of the Right-of-Way is adequate to encompass soil and/or groundwater within the Right-of-Way possibly impacted with Contaminants from a release at the Site. 2.c. The Illinois Emergency Management Agency ("IEMA") has assigned incident number 971107 to the release at the Site. 2.d. Owner/Operator intends to request (or has requested) risk-based, site specific soil and/or groundwater remediation objectives from the Illinois Environmental Protection Agency ("IEPA") under 35 III. Admin. Code Part 742. 2.e. Under these rules, use of risk-based, site specific remediation objectives in the Right-of- Way may require the use of a Highway Authority Agreement as defined in 35 III. Admin. Code Section 742.1020. 3. The City holds a fee simple interest or a dedication for highway purposes in the Right-of- Way, or the Right-of-Way is a platted street, and has jurisdiction of the Right-of-Way. For purposes of this Agreement, "jurisdiction" means that the City exercises access control over the use of groundwater beneath the Right-of-Way and over access to the soil beneath the Right-of- Way because it requires a permit for that access. 4.a. Under 35 III. Admin. Code Section 742.1020, this Agreement is intended to be an acceptable "Highway Authority Agreement" to IEPA, as the City is willing to agree that it will not allow the use of groundwater under the highway Right-of-Way as a potable or other domestic supply of water and that it will limit access as described herein to soil under the highway Right- of-Way that is contaminated from the release at levels above residential Tier 1 remediation objectives. 4.b. The IEPA must review and approve this Agreement, and this Agreement shall be referenced in the IEPA's "No Further Remediation" determination in the chain of title for the Site in the county where the Site is located. 4.c. This Agreement shall be null and void as a Highway Authority Agreement should the IEPA not approve it or should it not be referenced in the "No Further Remediation" determination, provided, however, that this Agreement shall be effective between the Owner/Operator and the Village immediately upon signature by their representatives. 5. The City promises IEPA and the Owner/Operator that it will prohibit the use of groundwater that is contaminated from the release at the Site at levels above Tier 1 remediation objectives 2 beneath its Right-of-Way as a potable or other domestic supply of water and will limit access to soil as described herein under the Right-of-Way that is contaminated from the release at the Site at levels above Tier 1 remediation objectives. As the pavement in the Right-of-Way may be considered an engineered barrier, the Owner/Operator agrees to reimburse the City for maintenance activities requested by Owner/Operator in writing in order to maintain it as a barrier. The City does not otherwise agree to pertorm maintenance of the Right-of-Way, nor does it agree that the highway Right-of-Way will always remain a highway or that it will maintain the Right-of Way as an engineered barrier. 6. The Owner/Operator agrees to defend, indemnify and hold harmless the City, and other highway authorities, if any, maintaining the highway Right-of-Way by an agreement with the City, and the City's agents, contractors or employees for all obligations asserted against or costs incurred by them, including reasonable attorney's fees and court costs, resulting from the release of Contaminants from the Site, regardless whether said obligations or costs were caused by the negligence, but not the gross negligence, of them. 7. As an additional consideration, Owner/Operator agrees to reimburse the City for the reasonable costs it has incurred in protecting human health and the environment, including, but not limited to, identifying, investigating, handling, storing and disposing of contaminated soil and groundwater in the Right-of-way as a result of the release of Contaminants at this Site. 8. This Agreement shall be binding upon all successors in interest to the Owner/Operator and to the interest of the City in the highway Right-of-Way. A successor in interest of the City would include a highway authority to which the City would transfer jurisdiction of the highway. 9. Violation of the terms of this Agreement by Owner/Operator or its successors in interest, may be grounds for voidance of this Agreement as a Highway Authority Agreement. Violation of the terms of this Agreement by the City will not void this Agreement, unless the IEPA has determined that the violation is grounds for voiding this Agreement as a Highway Authority Agreement and the City has not cured the violation within such time as IEPA has granted to cure the violation. 10. This Agreement shall continue in effect from the date of this Agreement until the Right-of- Way is demonstrated to be suitable for Tier I residential use and there is no longer a need for this Agreement as a Highway Authority Agreement, and the IEPA has, upon written request to the IEPA by the Owner/Operator and notice to the City, amended the notice in the chain of title of the Site to reflect Tier 1 residential future use of that highway Right-of-Way. 11. This Agreement is in settlement of claims the City and its successors in interest may have arising from the release of Contaminants into the Right-of-Way associated with incident number, 971107. 12. This Agreement does not limit the City's ability to construct, reconstruct, improve, repair, maintain and operate a highway upon its property or to allow others to use the highway Right-of- Way by permit. To that extent, the City reserves the right and the right of those using its property under permit to remove contaminated soil or groundwater above Tier 1 residential remediation objectives from its Right-of-Way and to dispose of them as they deem appropriate not inconsistent with applicable environmental regulations so as to avoid causing a further release of the Contaminants and to protect human health and the environment. Prior to taking any such action, the City shall first give Owner/Operator written notice, unless there is an immediate threat to the health or safety to any individual or to the public, that it intends to perform a site investigation in the Right-of-Way and remove or dispose of contaminated soil or groundwater to the extent necessary for its work. Failure to give notice is not a violation of this Agreement. The removal or disposal shall be based upon the site investigation (which may be modified by field conditions during excavation). A copy of the Site investigation report will be provided to Owner/Operator. 4 If practicable, as reasonably determined by the City, the City will provide Owner/Operator with an opportunity to perform the Site investigation and to remove and dispose of the contaminated soil and/or groundwater necessary for the City's work in advance of that work. The Owner/Operator shall reimburse the reasonable costs incurred by the City to perform the site investigation and to dispose of any contaminated soil or groundwater resulting from the release of Contaminants from the Site, provided, however, that if notice to Owner/Operator has not been given and there was no immediate threat to health or safety, reimbursement for those costs shall be limited to $10,000.00. There is a rebuttable presumption that the Contaminants found in the highway Right-of-Way arose from the release of Contaminants from the Site. Owner/Operator reserves the right to challenge such rebuttable presumption at law or in equity. Should Owner/Operator not reimburse the reasonable costs under the conditions set forth herein, this Agreement shall be null and void, at the City's option, upon written notice to Owner/Operator by the City that those costs have not been reimbursed. Owner/Operator may cure that problem within twenty (20) working days by making payment, or may seek to enjoin that result. Written notice required by this Agreement shall be mailed to the following: if to Owner/Operator: ; Ms. P.C. (Beth) Claypool. Attorney. Marathon Petroleum Company LLC. 539 South Main Street. Findlay, OH 45840-3295. and if to City: Rodney Hienz. Mavor of Canton. 2 N. Main St.. Canton. IL 61520. 14. The City's sole responsibility under this Agreement with respect to others using the highway Right-of-Way under permit from the City is to include the following, or similar language, in the future standard permit provisions and to make an effort to notify its current permit holders of the following: As a condition of this permit, the permittee shall request the City to identify sites in the Right-of-Way where access to contaminated soil or groundwater is governed by Tiered Approach to Corrective-Action Objectives ("TACO") Agreements. The permittee shall take measures before, during and after any access to these sites to protect worker safety and human health and the environment. Excavated, contaminated soil should be managed off-site in accordance with all environmental laws. Owner/Operator hereby releases the City from liability for breach of this Agreement by others under permit and agrees to defend and indemnify the City against claims resulting from the release of Contaminants from the Site that may arise from others under permit causing a breach of this Agreement. Owner/Operator agrees that its personnel, if any, at the Site who are aware of this Agreement will notify anyone they know is excavating in the Right-of-Way about this Agreement. 15. Should the City breach this Agreement, Owner/Operator's sole remedy is for an action for damages in the Illinois Circuit Court for Cook County. Any and all claims for damages against the City, its agents, contractors, employees or its successors in interest arising at any time for a breach of paragraph 5 of this Agreement are limited to an aggregate maximum of $20,000.00. Except as provided herein, no other breach by the City, its agents, contractors, employees and its successors in interest of a provision of this Agreement is actionable in either law or equity by Owner/Operator against the City and Owner/Operator hereby releases the City, its agents, contractors, employees and its successors in interest, for any cause of action it may have against them, other than as allowed in this paragraph, arising under this Agreement or environmental laws, regulations or common law governing the Contaminants in the soil or groundwater in the highway Right-of--Way. Should the City convey, vacate or transfer jurisdiction of that highway Right-of-Way, Owner/Operator may pursue an action under this Agreement against the successors in interest, other than a State agency, in a court of law. 6 16. This Agreement is entered into by the City in recognition of laws passed by the General Assembly and regulations adopted by the Pollution Control Board which encourage atiered- approach to remediating environmental contamination. This Agreement is entered into by the City in the spirit of those laws and under its right and obligations as a highway authority. Should any provisions of this Agreement be struck down as beyond the authority of the City, however, this Agreement shall be null and void. IN WITNESS WHEREOF, Owner/Operator, Marathon Petroleum Company LLC, has caused this Agreement to be signed by its duly authorized representative. BY Rhenwick R. Young, (Title) Financial Sevices and Treasurer Manager DATE: IN WITNESS WHEREOF, the City of Canton has caused this Agreement to be signed by its duly authorized representative. BY (Title) DAT (/,r ~ l~ 7 MEMO TO: Honorable Rod Heinze; Members of the City Council FROM: Chrissie Peterson RE: Resolution approving TACO Agreement with Marathon Petroleum DATE: August 23, 2006 Attached is the Resolution approving a TACO Agreement with Marathon Petroleum. This agreement relates to the former Marathon gas station at 610 North Main Street. PEC (the environmental firm working for Marathon) contacted Keith Plavec several months ago regarding the situation. The agreement basically states that the City will notify PEC or Marathon prior to completing any work that involves soil removal within this section of the right-of--way. Marathon is acknowledging the problem, but does not want to take any action unless the area is being disturbed. Since the City now has an ordinance stating that no groundwater wells can be used within the City limits, this should also contain the problem. Mauer & Stutz's environmental engineer indicated that this is fairly typical with a LUST site that has been delineated and found to be under and adjacent roadway. He has recommended that the City obtain a Site Safety Plan/Waste Management Plan for its files. I have forwarded correspondence to PEC: (1) requesting the Site Safety Plan/Waste Management Plan, (2) advising that the issue is now before counsel and (3) requesting that technical corrections be made to the agreement (i.e. the Mayor's name is misspelled). Please let me know if you have any additional questions and I will do my best to answer them.