94-292 Resolution No. 94-292
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH
GUILLOU. & ASSOCIATES, INC.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Richard B. Helwig, City Manager, and Dolonna
Mecum, City Clerk, be and are hereby authorized and directed
to execute an agreement on behalf of the City of Elgin with
Guillou & Associates, Inc. for a stream survey, a copy of
which is attached hereto and made a part hereof by reference.
s/ George VanDeVoorde
George VanDeVoorde, Mayor
Presented: October 26, 1994
Adopted: October 26, 1994
Omnibus Vote: Yeas 7 Nays 0
Attest:
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
AGREEMENT
wis AGREEMENT, is made and entered into this(" day of
, 1994, by and between the CITY OF ELGIN, an
Illinois municipal corporation (hereinafter referred to as
"CITY" ) and GUILLOU & ASSOCIATES, INC. (hereinafter referred to
as "ENGINEER" ) .
WHEREAS, the CITY desires to engage the ENGINEER to furnish
certain professional services in connection with an investigation
and report covering sedimentation and channel changes in Tyler
Creek, (hereinafter referred to as "STREAM" ) between the Soo
Line Railroad crossing in Section 5, T41N, R8E, 3rd PM, and a
point approximately 200 feet downstream of Garden Crescent Road,
(hereinafter referred to as the "PROJECT" ) .
AND
WHEREAS, the ENGINEER represents that he is in compliance
with Illinois Statutes relating to professional registration of
individuals and has the necessary expertise and experience to
furnish such services upon the terms and conditions set forth
herein below.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the sufficiency of which is hereby
acknowledged it is hereby agreed by and between the CITY and the
ENGINEER that the CITY does hereby retain the ENGINEER to act
for and represent it in all engineering matters involved in the
PROJECT, subject to the following terms and conditions and
stipulations, to-wit:
I. SCOPE OF SERVICES
A. All work hereunder shall be performed under the
direction of the Director of Public Works of the
CITY, herein after referred to as the "DIRECTOR" .
B. Services to be provided by ENGINEER shall include:
1. Evaluation of changes of the regime of the
STREAM during the period 1973 through 1993, as
evidenced by examination of available aerial
photography and ground level photos available to
ENGINEER by reason of other services previously
provided to CITY.
2 . Physical inspection and soil sampling at
fourteen agreed upon locations within the
described study limits .
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3 . Providing final report in five copies.
4 . Conduct a fishery study at five locations
within the STREAM at the approximate locations
below:
a. Above Big Timber Road near the Boy Scout
Camp ground.
b. Below the railroad bridge south of Big
Timber Rd. east of Abbott Drive.
c. At the Randall Road Bridge.
d. At the Royal Blvd. Bridge.
e. At the Eagle Rd. Bridge.
The letter report shall be in a format
substantially similar to the study conducted by
the ENGINEER for the CITY in 1987, and will
contain a discussion comparing the similarities
or differences of the results of the 1987 study
and the current study.
C. A detailed Scope of Services is attached hereto
as Attachment A.
II. PROGRESS REPORTS
A. Item B. 1 will be completed within sixty days of
contract award (or following receipt of 1993 aerial
photography, which ever is the later) , the field
work will be executed within thirty days following
the map and photo study, and the final report will
be submitted within 120 days of the award of
contract.
B. A detailed project schedule for the Project is
included as Attachment B, attached hereto.
Progress will be recorded on the project schedule
and submitted monthly as a component of the Status
Report described in C. below.
C. The Engineer will submit to the Director monthly a
Status Report keyed to the Project Schedule. A
brief narrative will be provided identifying
progress, findings and outstanding issues.
III. WORK PRODUCTS
All work products prepared by the ENGINEER pursuant
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hereto including, but not limited to, reports, designs,
calculations, work drawings, studies, photographs,
models and recommendations shall be the property of the
CITY and shall be delivered to the CITY upon request of
the DIRECTOR provided, however, that the ENGINEER may
retain copies of such work products for its records.
Such work products are not intended or represented to
be suitable for reuse by the CITY on any extension to
the PROJECT or on any other project, and such reuse
shall be at the sole risk of the CITY without liability
or legal exposure to the ENGINEER.
IV. PAYMENTS TO THE ENGINEER
A. The CITY shall reimburse the ENGINEER for services
under this Agreement a lump sum amount of Ten
Thousand Four Hundred and Twenty-eight ( 10,428. 00)
Dollars, regardless of actual Costs incurred by the
ENGINEER unless SUBSTANTIAL modifications to the
project are authorized by CITY through a written
amendment.
B. The CITY shall make periodic payments to the
ENGINEER based upon actual progress within 30 days
after receipt and approval of invoice. Said
periodic payments to the ENGINEER shall not exceed
the amounts shown in the schedule attached hereto
as Attachment B and full payments for each task
shall not be made until the task is completed and
accepted in writing by the DIRECTOR.
V. INVOICES
A. The ENGINEER shall submit invoices in a format
approved by the CITY. Progress reports ( IIC above)
shall be included with all payment requests .
B. The ENGINEER shall maintain records showing actual
time devoted and cost incurred. The ENGINEER shall
permit the authorized representative of the CITY to
inspect and audit all data and records of the
ENGINEER for work done under this Agreement. The
ENGINEER shall make these records available at
reasonable times during the Agreement period, and
for a year after termination of this Agreement.
VI . TERMINATION OF AGREEMENT
Notwithstanding any other provision hereof, the CITY
may terminate this Agreement at any time upon fifteen
( 15) days prior written notice to the ENGINEER. In the
event that this Agreement is so terminated, the
ENGINEER shall be paid for services actually performed
and reimbursable expenses actually incurred prior to
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termination, except that reimbursement shall not exceed
the task amounts set forth under Paragraph IV above.
VII . TERM
This Agreement shall become effective as of the date
the ENGINEER is given a written Notice to Proceed
following approval of CITY' S corporate authorities and,
unless terminated for cause or pursuant to Article VI
foregoing, shall expire on the date the DIRECTOR
determines that all of the ENGINEER' s work under this
Agreement is completed. A determination of completion
shall not constitute a waiver of any rights or claims
which the CITY may have or thereafter acquire with
respect to any breach hereof by the ENGINEER.
VIII. NOTICE OF CLAIM
If the ENGINEER wishes to make a claim for additional
compensation as a result of action taken by the CITY,
the ENGINEER shall give written notice of his claim
within 15 days after occurrence of such action. No
claim for additional compensation shall be valid unless
so made. Any changes in the ENGINEER' S fee shall be
valid only to the extent that such changes are included
in writing signed by the CITY and the ENGINEER.
Regardless of the decision of the DIRECTOR relative to
a claim submitted by the ENGINEER, all work required
under this Agreement as determined by the DIRECTOR
shall proceed without interruption.
IX. BREACH OF CONTRACT
If either party violates or breaches any term of this
Agreement, such violation or breach shall be deemed to
constitute a default, and the other party has the right
to seek such administrative, contractual or legal
remedies as may be suitable to the violation or breach;
and, in addition, if either party, by reason of any
default, fails within fifteen ( 15) days after notice
thereof by the other party to comply with the
conditions of the Agreement, the other party may
terminate this Agreement.
X. INDEMNIFICATION
The ENGINEER shall indemnify and save harmless the
CITY, its officers and employees from and against any
and all loss, liability and damages of whatever nature,
including but not limited to Workmen's Compensation
claims, in any way resulting from or arising out of
negligent actions or omissions of the ENGINEER in
connection herewith, including but not limited to
negligent actions or omissions of employees or agents
-5-
of the ENGINEER arising out of the performance of
professional services .
XI. NO PERSONAL LIABILITY
No official, director, officer, agent or employee of the
City shall be charged personally or held contractually
liable under any term or provision of this Agreement or
because of their execution, approval or attempted
execution of this Agreement.
XII . INSURANCE
A. Comprehensive Liability. The ENGINEER shall
provide, pay for and maintain in effect, during the
term of this Agreement, a policy of Comprehensive
General Liability Insurance with limits of at least
$1,000,000 aggregate for bodily injury and
$1,000,000 aggregate for property damage.
The ENGINEER shall deliver to the DIRECTOR a
Certificate of Insurance naming the CITY as
additional insured. The policy shall not be
modified or terminated without thirty (30) days
prior written notice to the DIRECTOR.
The Certificate of Insurance which shall include
Contractual obligation assumed by the ENGINEER
under Article IX entitled "Indemnification" shall
be provided.
B. Comprehensive Automobile Liability. The ENGINEER
shall provide, pay for and maintain in effect,
during the term of this Agreement, a policy of
Comprehensive Automobile Liability Insurance
covering all owned, non-owned and hired motor
vehicles with limits of not less than $500,000 per
occurrence for damage to property.
C. Combined Single Limit Policy. The requirements
for insurance coverage for the general liability
and auto exposures may be met with a combined
single limit of $1,000,000 per occurrence subject
to a $1,000,000 aggregate.
D. Professional Liability.
This space intentionally left blank.
XIII . CONSTRUCTION MEANS, METHODS, TECHNIQUES, SEQUENCES,
PROCEDURES AND SAFETY
This space intentionally left blank.
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XIV. NONDISCRIMINATION
In all hiring or employment made possible or resulting
from this Agreement, there shall be no discrimination
against any employee or applicant for employment
because of sex, age, race, color, creed, national
origin, marital status, of the presence of any sensory,
mental or physical handicap, unless based upon a bona
fide occupational qualification, and this requirement
shall apply to, but not be limited to, the following:
employment advertising, layoff or termination, rates of
pay or other forms of compensation and selection for
training, including apprenticeship.
No person shall be denied or subjected to
discrimination in receipt of the benefit of any
services or activities made possible by or resulting
from this Agreement on the grounds of sex, race, color,
creed, national origin, age except minimum age and
retirement provisions, marital status or the presence
of any sensory, mental or physical handicap. Any
violation of this provision shall be considered a
violation of a material provision of this Agreement and
shall be grounds for cancellation, termination or
suspension, in whole or in part, of the Agreement by
the CITY.
XV. ASSIGNMENT AND SUCCESSORS
This Agreement and each and every portion thereof
shall be binding upon the successors and the assigns of
the parties hereto; provided, however, that no
assignment shall be made without the prior written
consent of the CITY.
XVI. DELEGATIONS AND SUBCONTRACTORS
Any assignment, delegation or subcontracting shall be
subject to all the terms, conditions and other
provisions of this Agreement and the ENGINEER shall
remain liable to the CITY with respect to each and
every item condition and other provision hereof to the
same extent that the ENGINEER would have been obligated
if it had done the work itself and no assignment,
delegation or subcontract had been made.
XVII. NO CO-PARTNERSHIP OR AGENCY
It is understood and agreed that nothing herein
contained is intended or .shall be construed to, in any
respect, create or establish the relationship of co-
partners between the CITY and the ENGINEER, or as
constituting the ENGINEER as the general representative
or general agent of the CITY for any purpose whatsoever
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or to constitute an employment relationship between the
parties hereto.
XVIII. SEVERABILITY
The parties intend and agreed that, if any paragraph,
sub-paragraph, phrase, clause or other provision of
this Agreement, or any portion thereof, shall be held
to be void or otherwise unenforceable, all other
portions of this Agreement shall remain in full force
and effect.
XIX. HEADINGS
The headings of the several paragraphs of this
Agreement are inserted only as a matter of convenience
and for reference and in no way are they intended to
define, limit or describe the scope of intent of any
provision of this Agreement, nor shall they be
construed to affect in any manner the terms and
provisions hereof or the interpretation or construction
thereof .
XX. MODIFICATION OR AMENDMENT
This Agreement and its attachments constitutes the
entire Agreement of the parties on the subject matter
hereof and may not be changed, modified, discharged or
extended except by written amendment duly executed by
the parties . Each party agrees that no representations
or warranties shall be binding upon the other party
unless expressed in writing herein or in a duly
executed amendment hereof, or change order as herein
provided.
XXI. APPLICABLE LAW
This Agreement shall be deemed to have been made in,
and shall be construed in accordance with the laws of
the State of Illinois .
XXII. NEWS RELEASES
The ENGINEER may not issue any news releases without
prior approval from the DIRECTOR, nor will the ENGINEER
make public proposals developed under this Agreement
without prior written approval from the DIRECTOR prior
to said documentation becoming matters of public record.
XXIII. COOPERATION WITH OTHER CONSULTANTS
The ENGINEER shall cooperate with any other
consultants in the CITY's employ or any work associated
with the PROJECT.
• -8-
XXIV. INTERFERENCE WITH PUBLIC CONTRACTING: P.A. 85-1295
The ENGINEER certifies hereby that it is not barred
from bidding on this contract as a result of violations
of either Section 33E-3 or Section 33E-4 of the
Illinois Criminal Code.
XXV. SEXUAL HARASSMENT
As a condition of this contract, the ENGINEER shall
have written sexual harassment policies that include,
at a minimum, the following information:
A. the illegality of sexual harassment;
B. the definition of sexual harassment under state law;
C. a description of sexual harassment, utilizing
examples;
D. the vendor's internal complaint process including
penalties;
E. the legal recourse, investigative and complaint
process available through the Illinois Department
of Human Rights, and the Illinois Human Rights
Commission;
F. directions on how to contact the department and
commission;
G. protection against retaliation as provided by
Section 6-101 of the Human Rights Act (copy
attached) .
A copy of the policies must be provided to the
Department of Human Rights upon request. P.A. 87-1257 .
XXVI. WRITTEN COMMUNICATIONS
All recommendations and other communications by the
ENGINEER to the DIRECTOR and to other participants
which may affect cost or time of completion, shall be
made or confirmed in writing. The DIRECTOR may also
require other recommendations and communications by the
ENGINEER be made or confirmed in writing.
XXVII. NOTICES
All notices, reports and documents required under this
Agreement shall be in writing and shall be mailed by
First Class Mail, postage prepaid, addressed as follows:
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A. As to CITY:
•
JAMES L. KRISTIANSEN
Director of Public Works
City of Elgin
150 Dexter Court
Elgin, Illinois 60120-5555
B. As to ENGINEER:
JOHN C. GUILLOU
President
Guillou & Associates, Inc.
124 Maple Grove Lane
Springfield, IL 62707-9527
•
IN WITNESS WHEREOF, the undersigned have placed their hands
and seals upon and executed this Agreement in triplicate as
though each copy hereof was an original and that there are no
other oral agreements that have not been reduced to writing in
this statement.
For the CITY:
ATTEST: THE CITY OF ELGIN
By 44 ",,Q //7 JGc t w- By
City Clerk City Manager
(SEAL)
1
For the ENGINEER:
Dated this 13th day of January , A.D. ,
1994
ATTEST: GUILLOU & ASSOCIATES, INC.
By
S eitlre t a
y President
(SEAL)
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a
a
ATTACHMENT A
Evaluation of changes in the regime of the stream during the
period 1973 to 1993 will be completed by examination of available
aerial photography . The early , 1973, photography was flown in the
spring , and mapping is to the scale of 1—inch equals 100 ' , with
contour interval equal to 2 feet. The 1993 mapping is based upon May
photography , with the same scale and contour interval as the 1973
mapping. The exhibits will be studied to determine areas on the
stream where there have been noticeable' changes due to erosion or
deposition. The areas will be further examined in the field in an
attempt to determine the cause of the changes as related to stream
flow characteristics .
Physical inspection and measurements will be undertaken at
fourteen locations on Tyler Creek. The locations are noted on the
attached section of the Elgin quadrangle sheet which is published by
the U.S . Geological Survey , 1980 photorevision. Individual data
sheets will be prepared for each location and the folowing information
will be recorded for each.
1 . Date, time , location and description of the site.
2. Sketch of the cross section with measurements of stream width,
shape of the low flow portion, bank heights, bars , splays , etc.
3. Description of bed and bank materials from shovel survey. Depth
of shovel work to expose original bed of stream if possible.
4. Auger borings to reveal bed materials and strata , at thalweg and
appropriate other point , or points, in the cross section. Typical
soil samples to be recovered and delivered to CITY at time of final
report .
5. Photographs with annotated comments.
The fourteen locations for physical study are:
1 . Sand beach on right bank of Tyler Creek at Soo Line Railroad .
2. 2,000 feet upstream of Randall Road
3 . 150 feet upstream of Randall Road
4. 150 feet downstream of Randall Road
5. Downstream of Almora tributary
6 . 500 feet downstream of Royal Boulevard
7 . West crossing of Eagle Drive
8 . Upstream of confluence of Sandy Creek
9 . Downstream of confluence with Sandy Creek
10 . Downstream of Hoxie Avenue
11 . East crossing of Eagle Drive
12 . Downstream of Harlan Street
13 . 200 feet upstream of Garden Crescent Road
14 . 200 feet downstream of Garden Crescent Road
ATTACHMENT B
Days After Award Activity
10-days Complete accumulation of aerial exhibits
15 Begin analysis , complete copies of ground photos
30 Complete listing of critical areas
40 Visit critical areas of photo study
50 Initiate physical study work
65 Initiate mapping report
70 Complete physical study work.
75 Complete analysis of physical data
80 Initiate final report
90 Final report and soil samples to CITY.
The End
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131111
Agenda Item No . 6-1
October 5, 1994
TO: Mayor and Members of the City Council
FROM: Richard B. Helwig, City Manager
SUBJECT: Tyler Creek Sewer Project Consent Decree
PURPOSE
To request City Council approval of the attached Consent
Decree prepared by the Kane County State's Attorney' s Office
providing for settlement of an action brought against the
City and also to authorize the City Manager to execute the
attached stream survey contract with Guillou and Associates,
Inc. , pursuant to the terms of the Consent Decree.
BACKGROUND
The case at issue arose out of alleged silting of Tyler Creek
resulting from the construction of the Tyler Creek sewer line
project. The settlement terms of the decree generally con-
form to those previously reviewed by the Mayor and members of
the City Council. Upon its execution by the parties, this
document will be submitted to the court and become a court
order after acceptance by the court.
The conditions required for compliance by Elgin are located
at paragraphs 10-12 of the decree. The compliance terms
generally require the implementation of certain erosion pre-
ventative measures, the completion of a stream survey, and
passage of a soil erosion control ordinance. Note that this
last condition (at paragraph 12) has already been complied
with. The condition at paragraph 11, regarding a stream
survey, will be initiated in the near future. The survey
completion date will be inserted once a completion date has
been established.
The decree also provides for stipulated penalties in the
event of a failure by the City to comply with the terms of
rik the decree.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None.
Tyler Creek Sewer Project Consent Decree
October 5, 1994
r Page 2
FINANCIAL IMPACT
The stream survey cost will be $10,428 and will be requested
in the 1995 budget.
LEGAL IMPACT
Execution of the consent decree will cease any further prose-
cution of Elgin by the State ' s Attorney regarding this matter.
RECOMMENDATION
It is requested that the City Counci approve the atelteeiTed-
consent decree and authorize the City Manager to execute the
stream survey contract with Guillou and Associates, Inc.
Respectfu ly submitte/d,
E Jentsch
Co - - - ion Counsel
r
A.
Richard B. Helwig
City Manager
MRG:mg
r
•
• ,
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
KANE COUNTY, ILLINOIS
PEOPLE OF THE STATE OF )
ILLINOIS, X EEL. DAVID R. )
AKEMANN, STATE'S ATTORNEY OF )
KANE COUNTY, )
)
Plaintiff, ) Gen. No. CH KA 94 0166
)
CITY OF ELGIN, a municipal )
corporation, )
)
Defendant. )
)
CONSENT DECREE
• WHEREAS, Plaintiff, the People of the State of Illinois, by
and through David R. Akemann, State's Attorney of Kane County,
r filed a Complaint against Defendant, City of Elgin, on May 5, 1994,
alleging violations of Sections 12 (a) and 12 (f) of the Illinois
Environmental Protection Act, ("ACT") and requesting injunctive
relief and civil penalties;
WHEREAS, the People of the State of Illinois and the Defendant
have agreed that settlement of this action is in the public
interest and that entry of this Decree without further litigation
is the most appropriate means of resolving this matter;
WHEREAS, the Plaintiff and Defendant have moved this Court to
enter this Consent Decree;
NOW THEREFORE, the participation by Defendant in this Consent
Decree shall not be considered an admission of liability for any
purpose, and the fact of such participation shall not be admissible
rin any judicial or administrative proceeding (except in proceeding
to enforce this Consent Decree) . Before the taking of any
1
. 1
testimony upon the pleadings, without adjudication of any issue of
fact or law, and without any admission or denial of the violations
alleged in the Complaint, and upon the consent and agreement of the
parties, by their attorneys and authorized officials, it is hereby
ORDERED, ADJUDGED AND DECREED:
I. JURISDICTION AND VENUE
1. This Court has jurisdiction over the subject matter of
this action pursuant to Section 42 of the Illinois Environmental
Protection Act and Illinois Compiled Statutes Annotated, Ch. 735,
S5/2-204. Venue lies in this Circuit Court pursuant to Illinois
Compiled Statutes Annotated, Ch. 735, S5/2-102 and because City of
Elgin owns property and conducts public work projects in Kane
County, Illinois. The Complaint states a claim upon which relief
( can be granted against Defendant.
2. Plaintiff, David R. Akemann, State's Attorney of Kane
County, under Section 42 (d) and (e) of the Act, Illinois Compiled
Statutes Annotated, Ch. 415, S5-42 (d) and (e) , brought this action
on his own motion and on behalf of the People of the State of
Illinois for injunctive relief and civil penalties.
II. APPLICABILITY
3. The provisions of this Consent Decree shall apply to and
be binding upon the parties to this action, their officers,
directors, agents, servants, employees, contractors, assigns, and
successors in interest. In addition, the provisions of this Decree
shall apply to all persons, firms, and corporations having notice
of this Consent Decree and who are, or will be, acting in concert
or privity with the Defendant's Officers, directors, agents,
servants, employees, assigns, and successors. Defendant shall give
notice in writing of this Consent Decree to any successors-in-
interest prior to transfer of interest and shall simultaneously
notify the Kane County State's Attorney that said notice has been
given. In any action to enforce this Consent Decree, Defendant
shall not raise as a defense the failure of its officers,
directors, agents, servants, contractors or employees to take any
actions necessary to comply with the provisions hereof.
III. FACTUAL BACKGROUND
4. Defendant, a municipal corporation organized under the
laws of the State of Illinois, owns property, develops property,
purchases property, and contracts construction work in Kane County.
5. In October, 1992, the City of Elgin, through its
contractor(s) , commenced the construction and installation of a
sewer line on the north side of Tyler Creek from Randall Road East
to Lyle Avenue in the City of Elgin, Kane County.
6. Section 12 (a) and (f) of the Illinois Environmental
Protection Act provides:
No person shall:
a. Cause or threaten or allow the discharge of
any contaminants into the environment in any
state so as to cause water pollution in
Illinois, either alone or in combination with
matter from other sources so as to violate
regulations or standards adopted by the
Pollution Control Board under this Act.
f. Cause, threaten or allow the discharge of any
contaminant into the waters of the State, as
defined herein, including but not limited to,
waters to any sewage works, or into any well
•
or from any point source within the State,
without an NPDES permit for point source
discharges issued by the Agency under Section
39 (b) of this Act, or in violation of any term
or condition imposed by such permit, or in
violation of any NPDES permit filing
requirement established under Section 39 (b) ,
or in violation of any regulations adopted by
the Board or of any order adopted by the Board
with respect to the NPDES program.
7. On May 5, 1994, the People of the State of Illinois filed
its Complaint in this action alleging that in the course of the
construction at the sewer line project site on the north side of
Tyler Creek from Randall Road east to Lyle Avenue in the City of
Elgin, Illinois, the Tyler Creek watershed was polluted in that
contaminants from the construction site were allowed to enter into
Tyler Creek.
8. The Complaint further alleges that Defendant violated
E Sections 12 (a) and (f) of the Act, Illinois Compiled Statutes
Annotated, Ch. 415, S5/12 (a) and (f) by causing, threatening or
allowing the discharge of contaminants into the environment and
causing or tending to cause water pollution in Illinois by dumping
contaminant indirectly into Tyler Creek and placing soil piles
nearby so as to cause erosion into Tyler Creek.
IV. §ETTLEMENT AND SATISFACTION
9. Compliance with the terms of this Consent Decree shall
constitute full satisfaction of this civil action as to all persons
to whom it applies.
V. COMPLIANCE
10. Defendant shall take all measures necessary to prevent
soil erosion into Tyler Creek from its sewer line project in the
north side of Tyler Creek from Randall Road east to Lyle Avenue in
the City of Elgin, Illinois.
r
Specifically:
a. Silt Fences: Remove and stabilize the collected silt
behind the installed silt fencing.
b. paintenance: Provide continuous maintenance until final
stabilization and landscaping has taken place. Replace
materials as necessary to prevent erosion.
c. potice/Inspection: Notify the County of Kane after
completing the final stabilization and landscaping, prior
to removal of sediment controls. The County of Kane,
will conduct an inspection to determine compliance.
11. Defendant shall conduct a stream survey of Tyler Creek
from upstream to downstream of the sewer line project site. Prior
to commencing the stream survey, the County of Kane must approve
the scope of the survey. This survey is to be completed no later
than ow, 1994 .
12. Defendant shall develop, implement, and enforce a
municipal ordinance to prevent soil erosion and control
sedimentation from land disturbing and land developing activities.
This ordinance is to be passed and entered into law no later than
July 15, 1994 .
VI. STIPULATED PENALTIES
13. In the event that Defendant fails to comply with the
requirements of this Consent Decree, Defendant
shall pay stipulated penalties as follows:
(1) Two hundred fifty dollars ($250.00) per day,
for the first thirty (30) days;
(2) Five hundred dollars ($500.00) per day, for
days sixty-one (61) through ninety (90) ;
(3) Seven hundred fifty dollars ($750.00) per day,
for days ninety-one (91) through one hundred
twenty (120) ;
(4) One thousand dollars ($1,000.00) per day, for
each day of violation beyond the one hundred
twentieth (120th) day.
14. Stipulated penalties shall be paid by Defendant on or
before the fifteenth (15th) day of the month following the month in
which the penalty occurred in the same manner as set forth in
paragraph sixteen (16) below. Interest and late penalties shall
accrue on any overdue amounts is provided in paragraph sixteen (16)
below.
15. This section does not preclude the People of the State of
Illinois from seeking other available remedies or sanctions for
Defendant's violation of this Decree or any applicable law or
regulation. •
VII. ;FAILURE OF COMPLIANCE
16. This Consent Decree constitutes full settlement of the
claims alleged in the Complaint filed in this action.
17. Plaintiff does not waive any rights or remedies available
for any violation by Defendant of federal or state laws or
regulations during or following completion of the requirements of
this Consent Decree.
18. The parties agree that it is the responsibility of
Defendant to achieve and maintain compliance with all applicable
federal and state laws, regulations and permits, and that
compliance with this Consent Decree shall not be a defense to any
actions commenced pursuant to said laws, regulations or permits.
IX. GENERAL PROVISIONS
19. Violations of the Consent Decree: Nothing herein shall
preclude the People of the State of Illinois from seeking any legal
or equitable relief for violations of this Consent Decree,
including, but not limited to, injunctive relief and civil or
criminal contempt •sanctions where an act or omission that
constitutes a violation of this Consent Decree also constitutes a
violation of Section 12 of the Act, or any regulation implementing
the Act, the People of the State of Illinois may elect, at its sole
discretion, to seek civil penalties under Section 42 of the Act,
Illinois Compiled Statutes Annotated, Ch. 415, S5/42. If the
People of the State of Illinois elect to proceed with an action
under Section 42 of the Act, any amounts paid by the Defendants as
stipulated penalties pursuant to Section VI of this Consent Decree
shall be credited against any civil penalties imposed by the
Circuit Court in such action.
20. Modifications: Any modification of this Consent Decree
must be in writing and approved by the Court. Any such written
modification must be signed by all parties to this Consent Decree.
No party may petition the Court for modification without having
•
first made a good faith effort to reach agreement with all parties
on the terms of such modifications.
21. parol Evidence: This Consent Decree contains the entire
agreement of the parties and shall not be modified by any prior
oral or written agreement, representation or understanding.
22. Costs of Suit: Each party shall bear its own costs and
attorneys' fees in this action. Should Defendant subsequently be
found to have violated the terms and conditions of this Consent
Decree, Defendant shall be liable to the People of the State of
•
Illinois for the costs and attorneys' fees incurred in any action
against Defendant for non-compliance with this Consent Decree.
23. severability: Should any provision of this Consent
Decree be declared by the Court to be unenforceable or invalid, the
remaining provisions shall remain in full force and effect.
24. Termination: This Consent Decree shall terminate upon a
motion by the People of the State of Illinois and after the State's
Attorney of Kane County has determined that the Defendant has
achieved and maintained compliance with the requirements of the
Consent Decree for two (2) years and has paid any stipulated
penalties required by the Decree.
25. Retention Of Jurisdiction: The Court shall retain
jurisdiction to modify and enforce the terms and conditions of this
Consent Decree as may be necessary and appropriate for the
construction or execution of the Decree.
26. Authorization: Each of the undersigned representatives
of the parties certifies that he or she is authorized, by the party
whom he or she represents, to enter into the terms and conditions
of this Consent Decree and to legally bind that party to it.
PEOPLE v. CITY OP ELGIN, a municipal corporation, General No. CR
POR CITY OF ELGIN, DEFENDANT:
Date: By:
George VanDeVoorde, Mayor
Attest:
City Clerk
FOR THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF:
David R. Akemann
Kane County State's Attorney
Date: By:
Jose Vela, Jr.
Assistant State's Attorney
Kane County State's Attorney's
Office
Judgement is entered in accordance with the foregoing Consent
Decree. So Ordered, this day of
1994.
f' Sixteenth Judicial Circuit
Circuit Court Judge
DAVID R. AKEMANN
KANE COUNTY STATE'S ATTORNEY
PATRICIA JOHNSON LORD
Chief: Civil Division
37 W 777 Route 38
St. Charles, IL 60175
(708) 232-3545
Atty's Reg. No. 00023930
CTYELGIN
r