2003-61 PROHIBITING THE USE OF GROUNDWATER AS A POTABLE WATER SUPPLY

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WHEREAS Company intends to request risk-based, site specific soil and/or groundwater remediation objectives from the Illinois Environmental Protection Agency ("IEPA") under 35 Ill. Admin. Code Part 742, and WHEREAS the City is willing to assist the Company in obtaining an NFR letter pursuant to the provisions of this Agreement, NOW THEREFORE in exchange of mutual promises and undertakings,the consideration of which is herewith acknowledged, it is agreed as follows: 1. The City hereby agrees that it will not require Company to remove or otherwise remediate Contamination in, on or under the Highway except as set forth in this Agreement. 2. Under 35 Illinois Administrative Code 742.1020,this Agreement is intended to be an acceptable "Highway Authority Agreement" to IEPA. The City,therefore,promises IEPA and the Company that it will prohibit the use of groundwater that is contaminated from the release at the Premises at levels above Tier 1 remediation objectives 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 Premises at levels above Tier 1 remediation objectives. 3. In the event the City does undertake any construction, reconstruction, repair, maintenance, or other activities in, on or under the Highway or its Right-of-Way ("Activity"), Company agrees to reimburse the City for the reasonable incremental costs incurred by the City in removing and/or disposing of any Contamination which is required to be removed as a result of its Activity ("Remediation"). Incremental Costs shall be those costs which are in excess of the usual and customary costs the City would have incurred which are specifically attributable to Contamination and/or Remediation. To the extent reasonably possible,prior to incurring any such Incremental Costs, however, the City shall attempt to give Company at least sixty (60) days prior notice of its intended Activity and,unless there is an emergency or urgent requirement to undertake the Activity, Company shall have the first option to remove undertake Remediation of Contamination at its cost or expense. If Company elects not to undertake Remediation and the City undertakes such action,Company shall promptly reimburse the City the Incremental Cost difference. It shall not be a defense to a claim for reimbursement that the Remediation should not have been done but Company shall be able to dispute the expense of the Remediation undertaken. 4. If the City has undertaken Remediation in, on or under the Highway adjacent to the Premises as a result of Contamination which emanated from the Premises prior to the execution of this Agreement, Company 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 Contamination. All such costs shall be documented by the City and Company,as a condition of this Agreement,shall tender a check made payable to the 2