R-1018 - 05/27/2008 - AGREEMENT- WATER - ResolutionsRESOLUTION 2008- AG- WA -EX1 -R -1018
A RESOLUTION APPROVING THE YORKFIELD AREA WATER SYSTEM
PURCHASE AGREEMENT BY AND BETWEEN THE CITY OF ELMHURST
AND THE VILLAGE OF OAK BROOK
WHEREAS, the Village of Oak Brook ( "Oak Brook ") owns and operates a water system known as
the Yorkfield Area Water System as described in the Purchase Agreement attached hereto as Exhibit A,
and
WHEREAS, the City of Elmhurst ( "Elmhurst ") desires to purchase the Water System from Oak
Brook substantially in conformance with the Purchase Agreement, and
WHEREAS, Oak Brook will sell the Water System to Elmhurst substantially in conformance with
the Purchase Agreement
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS, as follows.
Section 1 The foregoing preambles are restated and incorporated herein by reference as though
fully set forth herein
Section 2 The Purchase Agreement in the form attached hereto as Exhibit A is hereby approved
subject to review and approval of the Village Attorney
Section 3 Upon approval of the Village Attorney, the President and the Village Clerk are
authorized to execute and attest the Purchase Agreement and such other documents as may be
necessary to effectuate the sale of the Water System to Elmhurst
Section 3 If any section, paragraph, clause or provision of this resolution shall be held invalid, the
invalidity thereof shall not affect any of the other provisions of this resolution
Section 4 All resolutions in conflict herewith are hereby repealed to the extent of such conflict
Section 5 This resolution shall be in full force and effect from and after its passage, approval and
publication as required by law
APPROVED THIS 27th day of May, 2008
JoTIA W Craig
age President
PASSED THIS 27th day of May, 2008
Ayes Trustees Carson, Kennedy, Manofsky, Saived, Sanford and Wolin
Nays None
Absent None
04P
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cou ell ,
ATTEST
Charlotte K Pruss
Village Clerk
YORKFIELD AREA
WATER SYSTEM PURCHASE AGREEMENT
By and Between
The Village of Oak Brook
an Illinois municipal corporation
and
The City of Elmhurst
an Illinois municipal corporation
Dated May , 2008
YORKFIELD AREA WATER
SYSTEM PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of this day of May, 2008, by and
between the Village of Oak Brook ( "Oak Brook "), an Illinois municipal corporation, and the City
of Elmhurst ( "Elmhurst "), an Illinois municipal corporation.
RECITALS
WHEREAS, Oak Brook owns and operates a water system known as the Yorkfield Area
Water System ( "Water System ") in the area depicted in Exhibit 1.23 attached hereto and
incorporated herein by reference generally located south of Butterfield Road, east of Euclid
Avenue, west of Caldwell Avenue, and north of Roosevelt Road; and
WHEREAS, Elmhurst wishes to purchase the Water System upon the terms and
conditions set forth in this Agreement; and
WHEREAS, Oak Brook is willing to sell the Water System to Elmhurst upon the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used and not otherwise defined in this Agreement shall have the
respective meanings assigned to such terms as set forth in this Article 1.
1.1 "Agreement" means this Yorkfield Area Water System Purchase Agreement, together
with the Schedules and Exhibits attached hereto.
1.2 "Closing" means the Closing of the transaction required by this Agreement conducted
in accordance with Article 11.
1.3 "Closing Date" means May 28, 2008, or some other mutually agreeable date selected
by the Parties.
1.4 "Construction Work In Progress" means any construction project that is under
construction by or at the direction of Oak Brook as of the date of execution of this
Agreement. Oak Brook represents and warrants to Elmhurst that it has no Construction
Work In Progress in connection with the Water System other than routine maintenance.
1.5 "Contracts" means agreements, contracts, memoranda of understanding, letters of
intent and any other form of agreement.
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1.6 "Customer Advances" means donations or contributions in cash, services or property
from states, municipalities, other governmental units, individuals, developers or others
for capital construction purposes, which are to be refunded in whole or in part.
1.7 "Customer Deposits" means all amounts deposited with Oak Brook by customers as
security for the payment of bills.
1.8 "Dispute" has the meaning set forth in Section 14.18.1.
1.9 "Dispute Notice" has the meaning set forth in Section 14.18.2.
1.10 "Elmhurst" means the City of Elmhurst, DuPage County, Illinois, having an address of
209 North York Street, Elmhurst, Illinois 60126.
1.11 "Encumbrance" means any mortgage, pledge, lien, option, conditional sale agreement,
security interest, claim, charge or restriction of any kind affecting title.
1.12 "Environmental Claim" means any administrative, regulatory or judicial actions;
actions arising under local, state or federal law (including without limitation, claims of
trespass, public or private nuisance, waste and breach of standards of care); demands,
demand letters, claims, suits (including citizen suits); directives, proceedings or notices
by any Governmental Authority or other person alleging, in writing, violations of or
liability under any Environmental Laws; seeking to enjoin any activity as inconsistent
with any Environmental Laws; or demanding remediation of conditions which, with
notice, the passage of time, or both, would constitute violations of any Environmental
Laws, arising out of based on or resulting from:
(a) The presence, use, generation, treatment, storage, recycling, management,
deposit, disposal, leakage, burial, discharge, emission, injection, spillage,
seepage, leaching, escaping, emptying, dumping, pumping, pouring, placement
or release of any Hazardous Material from, at, in, on or under, or the transport of
any Hazardous Material to or from the Water System; or
(b) Any loss of or damage to any property, natural resource or the environment, or
death of or injury to any person, resulting from or relating in any way to any
Hazardous Material that is or was present, used, generated, treated, stored,
recycled, managed, transported, deposited, disposed of, buried, discharged,
emitted, injected, emptied, dumped, pumped, poured, placed or released, or that
leaked, spilled, seeped, leached or escaped, at, on, in, under, to or from the
Water System.
In the event that an Environmental Claim is aggravated or exacerbated by actions or
conditions occurring after the Closing Date it will still be an Environmental Claim, but
Elmhurst shall contribute to any Environmental Liabilities in proportion to the actual harm
caused by events occurring after the Closing Date. Environmental Claim includes any
Environmental Claim made against Oak Brook or against Elmhurst, as a successor in
interest to Oak Brook.
1.13 "Environmental Information" means non - privileged written communications or written
material, subject to open records, laws, from or to any local, state or federal regulatory
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agency or an adjacent or nearby landowner (if such landowner asserts a material
Environmental Claim) relating to the status of the Water System under applicable
Environmental Laws, or any non - privileged written reports arising out of investigations,
audits, reviews, studies or other analyses (including Phase I or Phase 11 reports)
concerning the environmental status of the Water System. Environmental Information
shall be limited to written communications or written material generated during the time
period that Oak Brook owned the Water System.
1.14 "Environmental Laws" means:
(a) Any local, state or federal law or other statute, law, ordinance, rule, code,
regulation, administrative interpretation, guidance document or memorandum,
decree or order, and all common law relating to pollution or protection of human
health or the environment, or governing, regulating or imposing liability or
standards of conduct concerning the manufacture, use, treatment, generation,
distribution, transportation, storage, labeling, testing, processing, discharge,
disposal or other handling, release or threatened release, control, or cleanup of
any Hazardous Material (including, without limitation, the Clean Air Act, 42
U.S.C. §§ 7401 to 7671 q, the Clean Water Act, also known as the Federal Water
Pollution Act, 33 U.S.C. §§ 1251 to 1387, as amended by the Water Quality Act
of 1987 Pub. L. No. 100 -4 (Feb. 4, 1987), the Toxic Substance Control Act of
1976 ( "TSCA "), as amended, 15 U.S.C. §§ 2601 to 2692, the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 to 136y, the Safe
Drinking Water Act, 42 U.S.C. §§ 300f et seq., the Surface Mining Control and
Reclamation Act, 30 U.S.C. § 1201, 1202 and 1211, the Comprehensive
Environmental Response, Compensation and Liability act of 1980 ( "CERCLA "),
42 U.S.C. §§ 9061 to 9675, as amended by the Superfund Amendment and
Reauthorization Act of 1986 ( "SARA "), Public Law 99 -499, 100 Stat. 1613, the
Emergency Planning and Community Right to Know Act ( "EPCRA "), 42 U.S.C.
§§ 11001 to 11050, the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act ( "RCRA "), 42 U.S.C. § 6901 to 6992k, the
Occupational Safety and Health Act as amended ( "OSHA "), 29 U.S.C. § 655 and
§ 657, the National Historic Preservation Act ( "NHPA "), 16 U.S.C. §§ 470 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1802, together
with
(b) Any other statute, rule, regulation or order of any Government Authority having
jurisdiction over the protection of human health or the environment or the control
of Hazardous Materials, wastes or substances, including, without limitation, the
United States Environmental Protection Agency, the State of Illinois, or the
Parties.
1.15 "Environmental Liabilities" means those liabilities, losses, damages and expenses
(including the reasonable costs of investigation, containment, testing, removal, clean -up,
abatement or remediation, and reasonable attorneys' fees and costs directly associated
therewith) incurred in order to defend against or comply with Environmental Laws or
other legally enforceable obligations relating to an Environmental Claim.
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1.16 "Governmental Authority" means any federal, state or regulatory authority,
administrative agency, commission, department, board or court that has jurisdiction over
any of the Parties to this Agreement or the Water System.
1.17 "Hazardous Materials" means:
(a) Any pollutant, contaminant, toxic or hazardous chemical, waste or substance,
including, without limitation, asbestos in any form that is or could become friable,
urea formaldehyde insulation, petroleum or petroleum products, manufactured
gas waste, polychlorinated biphenyls ( "PCBs");
(b) Any item, article, substance, waste, equipment or container containing or-whose
surfaces have been in direct contact with PCBs, air pollutants, water pollutants
and other substances defined or listed as hazardous, extremely hazardous,
toxic, dangerous restricted or otherwise harmful to human health or the
environment under any Environmental Law; or the manufacture, use, treatment,
generation, distribution, transportation, storage, labeling, testing, processing,
discharge, disposal or other handling, release or threatened release, control or
cleanup of which is prohibited, limited or regulated pursuant to any
Environmental Law or determined to be hazardous, extremely hazardous, toxic,
dangerous, restricted or otherwise harmful to human health or the environment
under any Environmental Law.
1.18 "Oak Brook" means the Village of Oak Brook, DuPage County, Illinois, having an
address of 1200 Oak Brook Road, Oak Brook, Illinois 60523 -2255.
1.19 "Parties" means Oak Brook and Elmhurst, and "Party" means either Oak Brook or
Elmhurst.
1.20 "Permits" means all building permits, certificates of occupancy, certificates of
compliance, railroad licenses, permits and crossing agreements, and any other licenses
or permits, which are necessary for the operation of the Water System.
1.21 "Person" means an individual, corporation, general or limited partnership, joint venture,
trust, unincorporated association, limited liability company, municipal utility, municipal or
governmental entity, or any other legal or commercial entity.
1.22 "Purchase Price" means the purchase price to be paid by Elmhurst to Oak Brook for
the Water system as set forth in Section 2.4.
1.23 "Water System" means the Water System used to provide water to customers in the
Yorkfield Area Water System as shown on Exhibit 1.23.
ARTICLE 2
PURCHASE OF WATER SYSTEM
2.1 Agreement to Purchase and Sell. Subject to the terms and conditions of this
Agreement, Oak Brook agrees to sell, assign, transfer, deliver or convey to Elmhurst,
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and Elmhurst agrees to purchase and accept, the Water System for the Purchase Price
in accordance with Section 2.4.
2.2 Description of Water System to be Purchased. The Parties agree that the following
approximately, but not specifically, constitutes the Water System to be sold, assigned,
transferred or conveyed as follows: 250 feet of 4" cast iron watermain; 23,339 feet of 6"
cast iron and ductile iron watermain; 8687 feet of 8" mostly cast iron and ductile iron
watermain; 36 — 6" gate valves with a valve box, extension and cover; 13 — 8" gate
valves with a valve box, extension and cover; 59 fire hydrants with an auxiliary valve
(Mueller); and 340 water service connections. In addition to the Water System, Oak
Brook shall deliver, transfer or assign the following but only to the extent that they are in
Oak Brook's possession:
2.2.1 Licenses and Permits. All Permits, approvals, authorizations, licenses, orders,
registrations, certificates, variances and other similar permits of rights obtained
from any Governmental Authority relating to the Water System and all pending
applications therefore, if assignable.
2.2.2 Records. Legible copies of those records relating to the operation and
maintenance of the Water System, and copies of records on the inspections and
testing of hydrants, mains and other portions of the Water System.
2.2.3 Contracts. All contracts necessary for the operation of the Water System, which
are listed on Exhibit 2.2.3.
2.2.4 Customer Lists. All customer lists, customer records and meter books for the
Water System including a list of street addresses of all properties served to be
attached hereto as Exhibit 2.2.4.
2.2.5 Manuals. All manuals, warranty information, research and development files,
electronic files and other data relating to the Water System.
2.2.6 Drawings. All drawings, site plans and "as built" plans for the Water System.
2.3 Retained Assets. Notwithstanding Section 2.2 above, the Water System shall not
include and Oak Brook shall not sell, transfer or assign to Elmhurst the following:
(b) Any cash, accounts receivable, billings, unbilled or unmetered water
delivered to water customers prior to the Closing Date.
(c) Approximately 340 radio remote read water meters and MTUs (Hexagram
"Star" AMR Device) which Elmhurst shall return to Oak Brook as they are
disconnected from the Water System.
2.4 Purchase Price. Elmhurst agrees to pay Oak Brook three hundred fifty thousand
dollars ($350,000.00) (the "Purchase Price ") in immediately available funds for the
Water System. In addition, Elmhurst and Oak Brook shall each pay one -half of the
customary and necessary costs of installing new valves or other necessary equipment
for the emergency connections described in Section 8 hereof. Elmhurst agrees to
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complete said work and render Oak Brook a bill for Oak Brook's share of said work
which Oak brook shall promptly pay.
2.5 Terms of Payment. The Purchase Price shall be paid by Elmhurst on the Closing Date
by certified or cashiers check or federal or other wire transfer of immediately available
funds to the account designated by Oak Brook in writing.
2.6 Manner of Transfer. Oak Brook shall, upon payment of the Purchase Price by
Elmhurst and as of the Closing Date, sell, assign, transfer, convey and deliver to
Elmhurst all right, title and interest of Oak Brook in the Water System in the manner
specified in this Agreement, by Bill of Sale in a form attached hereto as Exhibit 2.6.
2.7 Assumption of Liabilities. Except as otherwise set forth in this Agreement, Elmhurst
shall not assume any liabilities or obligations of Oak Brook, including, without limitation,
the following: (i) any liabilities arising out of Oak Brook's ownership, maintenance or use
of the Water System up to 11:59 p.m. on the day immediately preceding the Closing
Date, and (ii) any liabilities arising out of Oak Brook's operation of the Water System up
to 11:59 p.m. on the day immediately preceding the Closing Date. Except as otherwise
set forth in this Agreement, Oak Brook shall not assume any liabilities or obligations of
Elmhurst including, without limitation, the following: (i) any liabilities arising out of
Elmhurst's ownership, maintenance or use of the Water System on and after the Closing
Date, and (ii) any liabilities arising out of Elmhurst's operation of the Water System on
and after the Closing Date. Each party shall be solely responsible for their respective
liabilities and shall pay, perform and discharge their respective liabilities.
2.8 Recapture Agreement. Notwithstanding anything to the contrary contained in Section
2.7 of this Agreement, Elmhurst acknowledges that Oak Brook has entered into a
recapture agreement, a copy of which is attached hereto as Exhibit 2.8 and
incorporated herein by reference. As of the Closing Date, Elmhurst shall assume all
liabilities and obligations of Oak Brook arising under the recapture agreement and hold
Oak Brook harmless from the same.
2.9 Certificate of Necessity. The Parties acknowledge that pursuant to an Order and
Certificate of Necessity, a copy of which is attached hereto as Exhibit 2.9, Oak Brook
may be obligated to provide water to an unincorporated area (the "Certificated Area ")
generally located north of Roosevelt Road and east of the area served by the Water
System. Any obligation to provide water to the Certificated Area shall be assumed by
Elmhurst and Elmhurst shall hold Oak Brook harmless from any obligation to provide
water to the Certificated Area.
2.10 AS ISIWHERE IS Condition. This Agreement is accepted and entered into by Elmhurst
on the basis of Elmhurst's own examination and knowledge of the Water System and
Elmhurst's opinion as to the condition of the Water System. Elmhurst acknowledges
that Elmhurst has had the opportunity to inspect and examine the Water System, that no
representations have been made by Oak Brook as to the condition or repair of the Water
System, that this purchase is being made upon Elmhurst's express understanding and
agreement that the Water System is accepted in "AS IS" and "WHERE IS" condition at
the time of Closing. Elmhurst further acknowledges that except for the specific express
warranties and representations contained in Article 6 and Article 7 of this Agreement,
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there are no representations or warranties, express or implied, applicable to this
transaction.
ARTICLE 3
ASSIGNMENT OF WARRANTIES
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3.1 Warranties. Oak Brook shall assign all warranties applicable to the Water System or
any portion thereof, to Elmhurst, if assignable. All right, title and interest of Oak Brook in
such warranties, if assignable, shall be assigned to Elmhurst pursuant to an assignment
acceptable to Elmhurst.
32 Warranty Claims. Oak Brook agrees to cooperate with Elmhurst in presenting any
warranty claims on Water System, as appropriate.
ARTICLE 4
RECORDS AND INFORMATION
4.1 Provision of Facility Records. Prior to Closing, Oak Brook shall provide Elmhurst with
legible, readable copies of all drawings (as is reasonably practical based on the
conditions of the drawings in Oak Brook's possession), site plans, "as built" plans, maps,
operations and maintenance records, materials standards, manuals regarding
equipment operation, water quality test results, meter books, customer lists and
customer records in Oak Brook's possession and necessary or useful for Elmhurst to
operate and maintain the Water System. If any of the records are contained in
electronic files, Oak Brook shall provide Elmhurst with a copy of the electronic files in a
format that allows Elmhurst to convert the date to Elmhurst's electronic records, if
feasible.
4.2 Provision of Certificates, Licenses and Permits. Prior to Closing, Oak Brook shall
provide Elmhurst with legible, readable copies of all of Oak Brook's certificates of
authority, licenses and permits for the operation of the Water System in Oak Brook's
possession.
4.3 Review of Records. Elmhurst may review other information and records relating to the
Water System in Oak Brook's possession at the business locations where such other
information is normally located, during normal business hours, and upon reasonable
notice. In the alternative, such other information and records may be provided in
electronic form or hard copy, as the Parties may agree.
4.4 Costs Associated with Records. Neither Party shall charge the other for any costs
associated with complying with this Article.
ARTICLE 5
ENVIRONMENTAL MATTERS AND INSPECTIONS
5.1 Environmental Information. Not later than the Closing Date, Oak Brook shall provide
Elmhurst with all Environmental Information concerning the Water System in Oak
- Brook's possession or control.
5.2 Continued Environmental Reporting. To the extent that Environmental Information is
not available prior to the Closing Date, Oak Brook shall provide Elmhurst with any
Environmental Information with respect to the Water System as such information is
received or completed by Oak Brook.
5.3 Pre - Closing Inspection. At a reasonable time, pre- approved by Oak Brook within
seven (7) days before the Closing Date, Elmhurst shall have the right to inspect the
Water System to confirm that there has been no significant damage to the condition of
the Water System, taken as a whole, after the date of this Agreement. If Elmhurst,
reasonably and in good faith, determines that there has been such significant damage to
the condition of the Water System, taken as a whole, after the date of this Agreement,
then Elmhurst shall immediately notify Oak Brook of such event. In which event Oak
Brook shall have the option to terminate this Agreement without any liability or further
obligation to either party, unless Oak Brook and Elmhurst can work out a mutually
acceptable resolution with respect to repairing such damage.
ARTICLE 6
OAK BROOK'S REPRESENTATIONS AND WARRANTIES
For purposes of Article 5 and Article 6, Oak Brook shall be deemed to have "knowledge"
of a fact or matter pertaining to the accuracy of any representation or warranty contained in this
Agreement if any one or more of the employees or representatives of Oak Brook is actually
aware of that fact or matter.
Oak Brook hereby represents and warrants to Elmhurst as follows:
6.1 No Other Interests in Water Systems. Except for Elmhurst, no person, firm or entity
has any rights to acquire or lease all or any portion of the Water System, or otherwise to
obtain any interest therein, and there are no outstanding options, rights of first refusal or
negotiation, or rights of first offer relating to the Water System or any interest therein.
6.2 No Outstanding Contracts for Work. To Oak Brook's knowledge, there are no
material outstanding contracts related to the Water System.
6.3 Environmental Matters. To Oak Brook's knowledge, Oak Brook's operation of the
Water System is not in violation of any Environmental Law. There are no pending or, to
Oak Brook's knowledge, threatened claims or Encumbrances resulting from any
Environmental Liabilities or arising under or pursuant to any Environmental Law with
respect to or affecting the Water System.
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6.4 Customer Deposits and Customer Advances. Oak Brook has no Customer Deposits
or Customer Advances relating to service provided by the Water System.
ARTICLE 7
RECIPROCAL REPRESENTATIONS AND WARRANTIES
The Parties represent and warrant to each other as follows:
7.1 Organization and Authority. The Parties represent and warrant that each is a duly
organized and validly existing municipal corporation under the laws of Illinois and have
full power to carry on their business and functions as now being conducted.
7.2 Authority Relative to this Agreement. The Parties represent and warrant that the
execution, delivery and performance of this Agreement, and of all of the other
documents and instruments required hereby, are within the authority of the Parties. The
execution and delivery of this Agreement and the consummation of the transaction
contemplated hereby, have been duly authorized by the appropriate governing bodies of
the Parties, and no other proceedings on the part of the Parties are necessary to
authorize this Agreement or to consummate the transaction contemplated hereby.
7.3 Enforceability. The Parties represent and warrant that this Agreement and all of the
other documents and instruments required hereby, have been or will be (in the case of
documents and instruments permitted to be delivered after the date hereof) duly and
validly executed and delivered by the Parties and constitute or will constitute valid and
binding agreements of the Parties, enforceable against the Parties in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally or equitable principles.
7.4 Consents and Approvals; No Violations.
7.4.1 Oak Brook's Representation. Oak Brook represents and warrants that, to its
knowledge, except for any required filings with and approvals of applicable
federal, state or local authorities, no material filing or registration with, and no
material permit, authorization, consent, order or approval of, any Governmental
Authority is necessary or required in connection with the execution and delivery
of this Agreement by Oak Brook or for the consummation by Oak Brook of the
transaction contemplated by this Agreement. Upon obtaining any required
approvals, to Oak Brook's knowledge, neither the execution, delivery or
performance of this Agreement nor the consummation of the transaction
contemplated hereby by Oak Brook will (i) conflict with or result in any breach of
any provision of the organizational documents of Oak Brook, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any security,
note, bond, mortgage, indenture, license, contract or other instrument or
obligation to which Oak Brook is a party or by which it or any of its properties or
assets may be bound, or (iii) to its knowledge, violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Oak Brook or any of its properties
or assets.
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7.4.2 Elmhurst's Representation. Elmhurst represents and warrants that, to its
knowledge, except for any required filings with and approvals of the applicable
federal, state or local authority, no material filing or registration with, and no
material permit, authorization, consent, order or approval of, any Governmental
Authority is necessary or required in connection with the execution and delivery
of this Agreement by Elmhurst or for the consummation by Elmhurst of the
transaction contemplated by this Agreement. Upon obtaining any required
approvals, to Elmhurst's knowledge, neither the execution, delivery or
performance of this Agreement nor the consummation of the transaction
contemplated hereby by Elmhurst will (i) conflict with or result in any breach of
any provision of the organizational documents of Elmhurst, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any security,
note, bond, mortgage, indenture, license, contract or other instrument or
obligation to which Elmhurst is a party or by which it or any of its properties or
assets may be bound, or (iii) to its knowledge, violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Elmhurst or any of its properties
or assets.
7.5 Legal Proceedings.
7.5.1 Oak Brook's Representation. Oak Brook represents and warrants that there
are no complaints, claims, suits, actions, mediations, arbitrations, proceedings or
investigations pending or, to the knowledge of Oak Brook, threatened against or
affecting Elmhurst that relate to the Water system would, if adversely
determined, materially affect Oak Brook's ability to perform its obligations
hereunder, or on the validity or enforceability of this Agreement.
7.5.2 Elmhurst's Representation. Elmhurst represents and warrants that there are
no complaints, claims, suits, actions, mediations, arbitrations, proceedings or
investigations pending or, to the knowledge of Elmhurst, threatened against or
affecting Oak Brook that relate to the Water system would, if adversely
determined, materially effect Elmhurst's ability to perform its obligations
hereunder, or on the validity or enforceability of this Agreement.
ARTICLE 8
COOPERATION OF THE PARTIES
81 Filings and Authorizations. The Parties shall, as promptly as practicable, make or
cause to be made all such filings and submissions to appropriate Governmental
Authorities under laws, rules and regulations applicable to it or as may be required to
consummate the terms of this Agreement. Any such filings and supplemental
information will be in substantial compliance with the requirements of the applicable law,
rule or regulation. Each Party shall furnish to the other such necessary information and
reasonable assistance as the other may request in connection with its preparation of any
filing or submission to the Governmental Authority. The Parties shall keep each other
apprised of the status of any communications with, and inquiries or requests for
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additional information from, any Governmental Authority, and shall comply promptly with
any such inquiry or request. The Parties will use commercially reasonable efforts to
obtain any approvals required from the applicable Governmental Authorities for the
purchase and sale of the Water System in accordance with the terms and conditions
hereof.
8:2 Petition to Transfer Water Allocation. Elmhurst shall file a petition with the Illinois
Department of Natural Resources to increase Elmhurst's Lake Michigan water allocation
to include the water delivered through the Water System. Oak Brook shall cooperate in
all regards in making such filing provided that Oak Brook shall not be obligated to incur
any expense in connection with its cooperation in the filing of the petition.
8.3 Consents and Approvals from Third Parties. Oak Brook and Elmhurst shall use all
commercially reasonable efforts to obtain consents of all other third parties necessary to
the consummation of the transaction contemplated by this Agreement. Oak Brook and
Elmhurst shall promptly notify each other of any failure or anticipated failure to obtain
any such consent and, if requested by the other Party, shall provide copies of all such
consents obtained by the Party seeking such consent.
84 Further Assurances. Subject to the terms of this Agreement, Oak Brook and Elmhurst
will use all commercially reasonable efforts to take, or cause to be taken, all action to do,
or cause to be done, all things or execute any documents necessary, proper or
advisable to consummate and make effective the transaction contemplated by this
Agreement. On and after the Closing Date, Oak Brook and Elmhurst shall take all
reasonably appropriate action and execute any bills of sale, deeds, assignments,
documents, instruments or conveyances of any kind which may be reasonably
necessary to complete or perfect the transfer of any part of the Water System to
Elmhurst or carry out any of the provisions of this Agreement and correct errors and
omissions relating to the transaction contemplated by this Agreement.
8.5 Mutual Covenants. Subject to the terms and conditions set forth in this Agreement,
each of the Parties agrees to use its best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the other Party
in doing, all things necessary, proper or advisable to consummate and make effective, in
the most expeditious manner practicable, the transaction contemplated by this
Agreement.
8.6 Cooperation; Access. The Parties shall cooperate, and shall cause their respective
officers, employees, agents and representatives to cooperate, to ensure the orderly
transition of the Water System from Oak Brook to Elmhurst and to minimize the
disruption to the operation of the Water System resulting from the transaction
contemplated hereby. The Parties further agree:
(a) That the Parties shall maintain an emergency water connection to the
Water System at Euclid Avenue and Roosevelt Road. The Parties agree
to work out suitable arrangements regarding use of this connection and
compensation to one party for water used by the other party in
emergencies.
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ARTICLE 9
CONDITIONS PRECEDENT
9.1 Mutual Conditions Precedent. Each Party's obligation to consummate the Closing of
the transaction contemplated by this Agreement is conditioned upon the satisfaction or
waiver by each Party, on or before the Closing Date, of each of the following conditions
precedent:
9.1.1 Consents and Approvals. Oak Brook and Elmhurst shall have received all
necessary consents and approvals from Governmental Authorities or as
otherwise required by law to consummate the transaction contemplated by this
Agreement.
9.1.2 The respective governing board's of Oak Brook and Elmhurst shall have
approved this Agreement and the transaction described herein.
9.2 Conditions Precedent to Obligations of Elmhurst. Elmhurst's obligation to
consummate the Closing of the transaction contemplated by this Agreement is
conditioned upon the satisfaction or waiver by Elmhurst of each of the following
conditions precedent on or before the Closing Date.
9.2.1 Representations True and Correct. The representations and warranties made
by Oak Brook shall be true and correct in all material respects on and as of the
Closing Date with the same force and effect as though all such representations
and warranties had been made on and as of the Closing Date.
9.3 Conditions Precedent to Obligations of Oak Brook. The representations and
warranties made by Elmhurst herein shall be true and correct in all material respects on
and as of the Closing Date with the same force and effect as though all such
representations and warranties had been made on and as of the Closing Date.
9.3.1 Payment of Purchase Price. Oak Brook's receipt of the Purchase Price in
immediately available funds.
ARTICLE 10
RESPONSIBILITIES REGARDING THE WATER
SYSTEM BETWEEN SIGNING AND CLOSING
101 Operation and Maintenance of Water System. Prior to the Closing Date, Oak Brook
shall be responsible and liable for the operation and maintenance of the Water System
and all obligations associated therewith. Oak Brook shall maintain the condition of the
Water System in accordance with and consistent with Oak Brook's past practice and
experience.
10.2 Conduct of Business. During the period from the date of this Agreement to the
Closing Date, Oak Brook shall conduct all of its operations that concern the Water
System in the ordinary and usual course of business. Oak Brook agrees that it shall not,
other than in the ordinary course of business:
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10.2.1 Contracts; Transaction. Enter into any contract or commitment, waive any
right or enter into any other transaction (except in the ordinary course of
business), which would have a material adverse effect on the Water System;
10.2.2 Sales; Leases. Sell or lease or agree to sell or lease or otherwise dispose of
the Water System; or
10.2.3 Liens. Mortgage, pledge or subject to any lien, any part of the Water System.
10.3 Customer Billings. Oak Brook shall continue to read the water meters for the
customers served from the Water System through the Closing Date. Oak Brook shall
generate final water bills within five (5) days of reading for those customers on the Water
System. Subsequent to the Closing, Elmhurst shall assume responsibility for billing
water services to customers on the water system. Oak Brook shall provide Elmhurst with
water meter readings captured by its automated water meter reading for up to twenty -
four (24) months during which time Elmhurst will be engaged in changing Oak Brook's
MTV's over to Elmhurst's meter reading system. The parties shall use their best efforts
to cooperate during this transition period.
10.4 Transition Assistance. During the period from the date of this Agreement until the
Closing Date, Elmhurst shall have reasonable access to Oak Brook's Water System
operator to assist Elmhurst in educating and training Elmhurst's employees who will be
involved in the operation of the Water System after the Closing.
ARTICLE 11
CLOSING
11.1 The Closing. The Closing shall occur on the Closing Date. The Closing shall occur at the
Oak Brook Village Hall on May 28, 2008 at 9:00 a.m. or as soon thereafter as is
practicable. The effective date of the transfer of the Water System shall be 12:01 p.m.
Central Time on the Closing Date. On the Closing Date, the Parties agree to take the
actions required by this Agreement and all such actions shall be deemed to have
occurred simultaneously.
11.2 Closing Costs. Each Party shall bear its own costs and expenses related to the
transaction contemplated by this Agreement.
ARTICLE 12
POST CLOSING
12.1 Responsibility for Operation of Water System Post Closing. Elmhurst shall be
responsible and liable for the operation and maintenance of the Water System and for
the performance of all obligations associated therewith beginning on the Closing Date.
12.2 Survival of Representations and Warranties. Regardless of any investigation at any
time made by or on behalf of a Party or of any information any Party may have, all
representations and warranties shall expire one (1) year after the Closing Date, after
which time neither Party shall be responsible or liable to the other Party for the breach of
any representation or warranty except for any breaches for which one Party has notified
the other Party in writing prior to the expiration of such one (1) year period.
ARTICLE 13
INDEMNIFICATION
13.1 General Indemnification for Operation of the Water System. Subject to the terms
and conditions of this Article, Oak Brook agrees to indemnify and hold harmless
Elmhurst, its elected and appointed officials, officers, employees and authorized
representatives, and agents and each of them from and against any liabilities, losses,
damages and expenses (including reasonable attorneys' fees and expenses) actually
suffered by Elmhurst arising out of the acts or omissions of Oak Brook, its officers,
directors, employees or agents, related to Oak Brook's ownership or operation of the
Water System prior to the Closing Date. Subject to the terms and conditions of this
Article, Elmhurst agrees to indemnify and hold harmless Oak Brook, its officers,
directors, employees, representatives, parent, affiliates, and agents, and each of them
from and against any liabilities, losses, damages and expenses (including reasonable
attorneys' fees and expenses) actually suffered by Oak Brook arising out of the acts or
omissions of Elmhurst, its officers, directors, employees or agents, related to Elmhurst's
ownership or operation of the Water System on and after the Closing Date.
This Section shall not apply to indemnification claims arising out of or relating to
Environmental Liabilities or Environmental Claims of any nature whatsoever. Any right
to bring an indemnification claim relating to Environmental Liabilities or Environmental
Claims shall be determined exclusively in accordance with the provisions of this Article.
13.2 Indemnification Related to Representations, Warranties, Covenants and
Agreements. Subject to the terms and conditions of this Article, and except for any
breach or inaccuracy of representation or warranty under Section 13.9 (for which the
parties agree Oak Brook has no liability whatsoever), each party shall indemnify and
hold harmless the other party from any liabilities, losses, damages and expenses
(including reasonable attorneys' fees and expenses) actually suffered by such party
relating to the other party's breach of any representation or warranty or failure to fulfill
any covenant or agreement contained in this Agreement.
This Section shall not apply to indemnification claims arising out of or relating to
Environmental Liabilities or Environmental Claims of any nature whatsoever. Any right to
bring an indemnification claim relating to Environmental Liabilities or Environmental
Claims is exclusively subject to in this Article.
13.3 Environmental Indemnification by Oak Brook for Certain Environmental Claims.
Subject to the terms and conditions of this Article, Oak Brook shall indemnify, defend,
and hold harmless Elmhurst, its officials, officers, employees representatives, and
agents and each person potentially liable through Elmhurst, from and against only those
Environmental Liabilities relating to Environmental Claims resulting from or arising out of
Oak Brook's actions which caused contamination of the environment.
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Upon obtaining knowledge of any Environmental Claim, Elmhurst shall notify Oak Brook
of the claim and give a brief description of the nature of the claim. With respect to those
Environmental Claims covered by this Section, Oak Brook shall defend or otherwise
take appropriate action in response to the Environmental Claim, in good faith and at its
expense. Notwithstanding any other provision of this Agreement or any other document,
instrument or agreement relating hereto, Oak Brook shall have no liability or other
obligation to Elmhurst under or relating to this Agreement or the transaction
contemplated hereunder resulting from, arising out of, or relating to any environmental
contamination unless such environmental contamination resulted from or arose out of
Elmhurst's actions which caused the contamination of the environment or originated
during the period Elmhurst's ownership of the water facilities.
13.4 Environmental Indemnification by Elmhurst for Certain Environmental Claims.
Subject to the conditions and terms of this Article, Elmhurst shall indemnify, defend, and
hold harmless Oak Brook, its officials, officers, representatives and agents, from and
against only those Environmental Liabilities relating to Environmental Claims resulting
from or arising out of Elmhurst's actions which caused contamination of the
environment.
Upon obtaining knowledge of any Environmental Claim, Oak Brook shall notify Elmhurst
of the claim and give a brief description of the nature of the claim. With respect to any
Environmental Claims covered by this Section, Elmhurst shall defend or otherwise take
appropriate action in response to the Environmental Claim, in good faith and at its
expense. Notwithstanding any other provision of this Agreement or any other document
instrument or agreement relating hereto, Elmhurst shall have no liability or other
obligation to Oak Brook under this Agreement or the transaction contemplated
hereunder with resulting from, arising out of, or relating to any other environmental
contamination, unless such environmental contamination resulted from or arose out of
Elmhurst's actions which caused the contamination of the environment or originated
during the period of Elmhurst's ownership of the water facilities.
13.5 Notice of Proceedings. Each Party shall promptly notify the other Party of any loss or
proceeding in respect of which such notifying Party is or may be entitled to
indemnification pursuant to this Article. Such notice shall be given as soon as
reasonably practicable after the Party becomes aware of the claim or proceeding and
that such claim or proceeding may give rise to an indemnification obligation. The delay
or failure of such indemnified Party to provide the notice required pursuant to this
Section shall not release the other Party from any indemnification obligation which it
may have to such indemnified Party except (i) to the extent that such failure or delay
prejudices the indemnifying Party's ability to defend such action or increases the amount
of the claim, and (ii) that the indemnifying Party shall not be liable for any costs or
expenses of the indemnified Party in the defense of the claim, suit, action or proceeding
during such period of failure or delay.
13.6 Defense of Claim.
13.6.1 Right to Defend. Unless and until the indemnifying Party acknowledges in
writing its obligation to indemnify the indemnified Party to the extent required
pursuant to this Article, and assumes control of the defense of a claim, suit,
action or proceeding in accordance with Section, the indemnified Party shall
16
have the right, but not the obligation, to contest, defend and litigate; with counsel
of its own selection, any claim, action, suit or proceeding by any third Party
alleged or asserted against such Party in respect of, resulting from, related to or
arising out of any matter for which it is entitled to be indemnified hereunder, and
the reasonable costs and expenses thereof shall be subject to the
indemnification obligations of the indemnifying Party hereunder.
13.6.2 Payment of Costs; Defense of Claims. Upon acknowledging in writing its
obligation to indemnify, the indemnifying Party shall, to the extent required by
this Article, pay all reasonable costs incurred by an indemnified Party in its
defense, including, without limitation, reasonable legal fees. The indemnifying
Party shall then be entitled, at its option, to assume and control the defense of
such claim, action, suit or proceeding at its expense with counsel of its selection,
subject to the prior reasonable approval of the indemnified Party.
13.6.3 Settlement of Claim. Neither the indemnifying Party nor the indemnified Party
shall be entitled to settle or compromise any such claim, action, suit or
proceeding without the prior written consent of the other; provided, however, that
after agreeing in writing to indemnify the indemnified Party, the indemnifying
Party may settle or compromise any claim without the approval of the
indemnified Party. Except where such consent is unreasonably withheld, if a
Party settles or compromises any claim, action, suit or proceeding in respect of
which it would otherwise be entitled to be indemnified by the other Party, without
the prior written consent of the other Party, the other Party shall be excused from
any obligation to indemnify the Party making such settlement or compromise in
respect of such settlement or compromise.
13.6.4 Selection of Counsel. Following the acknowledgment of the indemnification
and the assumption of the defense by the indemnifying Party pursuant to this
Article, the indemnified Party shall have the right to employ its own counsel and
such counsel may participate in such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified Party, when and as
incurred.
13.7 Subrogation. Upon payment of any indemnification claim by a Party pursuant to this
Agreement, the indemnifying Party, without any further action, shall be subrogated to
any and all claims that the indemnified Party may have relating thereto up to the amount
paid by the indemnifying Party, and such indemnified Party shall at the request and
expense of the indemnifying Party cooperate with the indemnifying Party and give at the
request and expense of the indemnifying Party such further assurances as are
necessary or advisable to enable the indemnifying Party vigorously to pursue such
claims.
13.8 Survival Period Indemnification Limitation.
13.8.1 Survival Period No claim for indemnification among the Parties shall be
brought under or pursuant to this Agreement or the transaction contemplated
hereunder, or any other document, instrument, or agreement relating to the
transaction contemplated hereunder, after the expiration of one (1) year
following the Closing Date. Any claim for indemnification arising under this
17
Agreement not submitted in writing to the indemnifying Party prior to the
expiration of the one (1) year survival period shall be deemed to have been
waived in its entirety and the Party who could have asserted such claim shall be
deemed to have irrevocably waived, and shall be forever barred from asserting,
such claim.
- . 13.8.2 Indemnification Limitations.
(a) Minimum and Maximum Indemnification Claims. Notwithstanding any
provision of this Agreement or any other document, instrument or
agreement relating to the transaction contemplated under this
Agreement: except for Elmhurst's obligation to pay Oak Brook the entire
amount of the Purchase Price, which obligation shall be absolute and not
subject to the limitations set forth in this Section, (i) neither Party shall be
obligated to indemnify the other until the total amount of any claim or
claims for indemnification, individually or in the aggregate, exceed(s)
Twenty -Five Thousand Dollars ($25,000.00), and then only for amounts
in excess of $25,000.00; and (ii) the maximum amount for which either
Party shall be obligated to indemnify the other Party resulting from,
arising out of, or pursuant to this Agreement or the transaction
contemplated hereunder, or any other document, instrument or
agreement relating to the transaction contemplated hereunder, shall not
exceed Three Hundred Fifty Thousand Dollars ($350,000.00). A Party
may seek a claim for indemnification under or pursuant to this
Agreement only for the amount of liabilities, losses, damages or
expenses actually incurred or suffered by such Party.
(b) No Knowledge of Breaches. Neither Party has knowledge of any facts
or circumstances that would serve as the basis for a claim by one Party
against the other Party based upon a breach of any of the
representations, warranties, covenants or agreements of the other Party
contained in this Agreement each Party shall be deemed to have waived
in full any breach of any of the other Party's representations, warranties,
covenants or agreements of which such Party had knowledge on or
before the Closing Date.
(c) Further Limitations of Liability. A Party may seek indemnification
under this Agreement only for liabilities, losses, damages or expenses
actually incurred or suffered by such Party and for which such party has
submitted a claim for indemnification to the indemnifying Party within the
one (1) year survival period set forth in Section 13.8.1. The
determination of the amount of any claim for indemnification under this
Agreement shall be reduced by an amount equal to all insurance
proceeds actually received or expected to be received by the indemnified
Party with respect to such claim. Each Party's liability under this
Agreement shall further be limited to any actual, out of pocket losses
suffered by the Party seeking indemnification.
(d) Exclusive Remedy. Each Party acknowledges and agrees that, from
and after the execution and delivery of this Agreement, its sole and
18
exclusive remedy with respect to any and all claims relating to the
subject matter of this Agreement or the transaction contemplated
hereunder, or any other documents, instruments, or agreements
contemplated by or executed in connection herewith, shall be pursuant
to the indemnification provisions set forth in this Article and each Party
hereby expressly waives any other remedies it may have as provided by
law. Each Party further acknowledges and agrees that: (i) other than the
respective representations, warranties, covenants and agreements of
each Party specifically contained in this Agreement, or in any other
document, instrument, certificate or agreement to be executed or
delivered pursuant to this Agreement, there are no representations,
warranties, covenants, or agreements of either Party or any other person
or entity, either express or implied, with respect to the subject matter of
this Agreement, including, but not limited to, the Water System; and (ii)
each Party shall have a right to seek indemnification pursuant to this
Agreement for damages actually incurred by such Party solely as
provided in this Article and neither Party shall have any right to seek
indemnification with respect to any other information, documents,
agreements, instruments, certificates or materials furnished by the other
Party or its directors, officers, employees, agents or advisors as a result
of or pursuant to the transaction contemplated by this Agreement.
(e) Environmental Indemnification. Notwithstanding any other provision of
this Agreement to the contrary, each Party hereto acknowledges and
agrees that any liability or obligation between Oak Brook and Elmhurst
relating to Environmental Liabilities or Environmental Claims, or any
other liability or obligation between Oak Brook and Elmhurst relating to
any environmental matter whatsoever, shall be determined solely and
exclusively pursuant to Sections 13.3 and 13.4 hereof subject to the
limitations and other provisions set forth in this Article. Elmhurst
acknowledges and agrees that the representations and warranties of
Oak Brook in Section 6.3 hereof are for informational purposes only, and
that, notwithstanding any statement made by Oak Brook in Section 6.3,
Oak Brook shall have no liability whatsoever with respect to, and
Elmhurst agrees not to hold Oak Brook responsible for or seek
indemnification against Oak Brook as a result of, any breach of Section
6.3 or any inaccuracy of any statements made in Section 6.3. In addition,
Elmhurst hereby expressly waives any right to hold Oak Brook liable or
responsible for, or seek indemnification from Oak Brook relating to any
breach or inaccuracy of any statements made in Section 6.3. Elmhurst
further acknowledges and agrees that it is not relying on the
representations and warranties set forth in Section 6.3 as a basis for
deciding whether to proceed with the Closing; rather, Elmhurst is relying
solely on its own environmental due diligence as a basis for deciding
whether to proceed with the Closing.
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ARTICLE 14
GENERAL PROVISIONS
14.1 Negotiated Sale. This Agreement represents an arms' length negotiated sale of the
Water System by the Parties. Oak Brook and Elmhurst each affirm that this Agreement
does not represent a taking under principles of condemnation or under the terms of an
indeterminate permit
14.2 Notices. All notices, consents, requests, demands, offers, reports or other
communications required or permitted to be given pursuant to this Agreement shall be in
writing and considered properly given or made when personally delivered to the person
entitled thereto, when sent by certified or registered United States mail in a sealed
envelope, with postage prepaid, or when sent by overnight courier, addressed as set
forth below. Any Party may change its address by giving notice to the other Party as
aforesaid.
If to Elmhurst: City of Elmhurst
209 North York Street
Elmhurst, Illinois 60126 -2759
Attn.: City Manager
If to Oak Brook: Village of Oak Brook
1200 Oak Brook Road
Oak Brook, Illinois 60523 -2255
Attn.: Village Manager
14.3 Governing Law and Venue. This Agreement and the rights of the Parties hereunder
shall be interpreted and enforced in accordance with the internal laws of the State of
Illinois. All actions involving breach of this Agreement shall be in DuPage, County,
Illinois.
14.4 Regulatory Bodies. The Parties though this Agreement seek to exercise and maintain
all rights granted to them under and through the Constitution and laws of the State of
Illinois. This Agreement shall be subject to all valid rules, regulations, and laws
applicable hereto passed or promulgated by the United States of America, the State of
Illinois, or any governmental body or agency having lawful jurisdiction, or any authorized
representative or agency or any of them; provided, however, that this clause shall not be
construed as waiving the right of either Party to challenge the validity of such rule,
regulation, or law on any basis, including the impairment of this Agreement.
14.5 Compliance with State Laws and Regulations. In the event that any provision of this
Agreement, or any part thereof, conflicts with state laws and regulations to such an
extent that both state law and regulations, and this Agreement cannot be complied with,
the state laws and regulations shall control. In such event, the Parties shall promptly
meet to discuss how they might satisfy the intent of this Agreement by alternative
means.
14.6 Severability. If any provision of this Agreement or the application thereof to any Person
or circumstance shall, to any extent, be held to be invalid or unenforceable in any
20
jurisdiction, the validity and enforceability of the Agreement or the application of such
provision to any other Persons or circumstances shall not be affected thereby, and each
provision of this Agreement shall be valid and enforceable to the extent permitted by law
in every jurisdiction, and this Agreement shall be modified as necessary to carry out the
intent of the Parties.
14.7 Change in Laws. Unless otherwise explicitly provided in this Agreement, any reference
to laws, ordinances, rules, or regulations shall include such laws, ordinances, rules, or
regulations as they may be amended or modified from time to time hereafter.
148 Entire Agreement. This Agreement, together with the Schedules and Exhibits hereto,
and all other documents, instruments and agreements relating to the transaction
contemplated by this Agreement contain the entire agreement between the Parties with
respect to the transaction contemplated by this Agreement and matters related thereto,
and supersede and render null and void and of no further force or effect any and all prior
agreements, drafts of agreements and understandings between the Parties relating to
the transaction contemplated by this Agreement.
14.9 Interpretation.
14.9.1 Joint Drafting. This Agreement shall be interpreted as though jointly drafted by
the Parties.
14.9.2 Headings. The headings, titles or captions contained in this Agreement have
been inserted only as a matter of convenience and for reference, and such
captions in no way define, limit, extend or describe the scope of this Agreement
or the intent of any provision hereof.
14.9.3 References. Any reference herein to "day" or "days" shall mean calendar and
not business days, unless otherwise specified. If the date for giving of any notice
required to be given hereunder or the performance of any obligation hereunder
falls on a Saturday, Sunday or federal holiday, then the notice or obligation may
be given or performed on the next business day after such Saturday, Sunday or
federal holiday. All references herein to this Agreement or other agreement shall
be to this Agreement or such other agreement as amended, supplemented, or
modified to the date of reference.
14.9.4 Other. Unless otherwise required by the context in which any term appears: (a)
capitalized terms used in this Agreement shall have the meanings specified in
Article I; (b) the singular shall include the plural and the masculine shall include
the feminine and neuter; and (c) references to "Articles ", "Schedules ", "Sections ",
or "Exhibits" shall be to articles, schedules, sections, or exhibits of this
Agreement, and references to "this Section" shall be to the section in which the
reference occurs,
14.10 No Third -Party Beneficiaries. Except as otherwise explicitly provided by this
Agreement, this Agreement does not create any third -party benefits to any person or
entity other than the signatories hereto and is solely for the consideration herein
expressed.
21
14.11 Successors. This Agreement shall benefit and be binding upon the successors of Oak
Brook and Elmhurst.
14.12 Assignment. Neither Party may assign its rights hereunder without the prior written
consent of the other Party; provided, however, that such consent shall not be
unreasonably denied or conditioned.
14.13 Further Action. Each of the Parties agrees from time to time to execute and deliver
such further instruments, and to take such further action not inconsistent with the
provision of this Agreement, as may reasonably be necessary in order to fully perform
and carry out the terms and intent of the Agreement.
14.14 Amendments. This Agreement may not be modified or amended except by a written
instrument executed by each of the Parties.
14.15 Waiver. Either Party may extend the time for or waive the performance of any obligation
of the other Party, waive any inaccuracies in the representations or warranties of such
Party, or waive compliance by such party with any of the terms and conditions contained
in this Agreement. Any such extension or waiver shall be in writing and executed by the
Party granting the waiver.
14.16 Time is of the Essence. Time is of the essence in the performance of all terms and
provisions of this Agreement.
14.17 E -mail, Facsimile and Counterpart Execution. This Agreement and all other
documents, instruments and agreements executed in connection herewith may be
executed and delivered via e- mail /pdf or facsimile transmission with the same legal force
and effect as if originals had been executed and delivered, This Agreement may be
executed in counterparts, each of which shall be considered an original instrument, but
all of which shall be considered one and the same Agreement.
14.18 Dispute Resolution.
14.18.1 Negotiations. The Parties shall be required to use their best efforts to negotiate
in good faith in an attempt to resolve any controversy, claim or dispute arising
out of or relating to this Agreement or the transaction contemplated hereunder,
whether such claim is based on rights, privileges, or interests recognized by or
based upon statute, contract, tort, common law, or otherwise and whether such
claim existed prior to or arises on or after the date of this Agreement (the
"Dispute "). Such negotiations shall take place in DuPage County, Illinois
pursuant to the procedures set forth in the Section below. Such negotiations
shall consist of face -to -face meetings between representatives of each party or
their designees who have the authority to make legally enforceable and binding
commitments on behalf of each party hereto.
14.18.2Dispute Meetings. Either Party may give the other Party written notice (a
"Dispute Notice ") of any Dispute which has not been it solved in the normal
course of business. Within fifteen (15) days after delivery of the Dispute Notice,
the receiving Party shall submit to the other a written response (the "Response ").
The Dispute Notice and the Response shall include (i) a statement setting forth
22
- ' 1 • ' , ' � .. �. • - to'the other shall be honored. ' '
requests for Information made,by one Patty .
e' Dispute •has not •bger! resolved within, sixty ,(60)
• ' ��•'18.3 Mediaiion Arbitcatlon.',if tli • .. ,
days after delivery ofthe blapute.Notice, orr,each Party .faf! to meet within thirty
(30) days, after •jellvery of the 'Dispute ; Note- as herelnabove- provided, bosh
Parties shall -immediately proceed to mandatary medlation, which shall -also be
held In LDuPage County, .11linois. If the Dispute has 'riot :been resolved 'by ;
• after delve of the Dispute•_Notice,, ihe:partles
=rnediatlon- within pinety (?())-days- �` e a bitratio� •shal[_.:6
•shall : irn''edlateiy - :proceed -*to 1 ?inding,'; arbitration, - Th ,
_ "' e u es .and ; orggec, ures
' 3 a bitrators, ri .accordance with th r 1
ca�iducted by. three (} r ,1, .b,,.-,,The , . .
o '' Pa fes •'shall h 1
bf =t merlcari A, Associatf •O. , :'.eaG �.ciiose an
he A , , + - #or: he ,orbit atIon
_
= t f d 'arblt a
arbitrator end.those two, arbitrators,sh =all,.select'a h r•., , =fi ,r
`raceeding shall be conducteg'as' eXpedltlQuslyf as passible and the •declsiatl;af
_ he arbitration panel shall be finial and 8iriding on the'PattleS hereto'wlth'na 'right '
14,18.4Evidentia Alf negotiations pursuant 'to',this•:Section shall :be' created as
dom romise , and 'settlement 'negotiation's. Noihlrig •sald� or, :disclosed,'' ,n* any.
p" a course, ,of such neQatfafions:which•'Is not othejwlse,• .
document produce, :iii„ h ,
,iridepetidently dfscovera le'shall.be offbred. or'recolved as evid'e'nce or'used.for ,
j n '' ' . • eht or an 'ath'er "urpbse in any arbltr~ation',proceeding.
'E EoF,'the �Pa>~tias have,executed this Ag'reemertt as
IN WITNESS ❑f the da st ''
Wi-1 i� _ .
set forth above. ;�L= ' �z
CITY& ELMHURST
,F `
• • • • • . • , . . • t ' ', , 1 ' 1 q'•• , , 1, 1 ,yf
r YY rM Lj r^
�'�,j _M�yar, , , r,j��,�'tiAlx'j{1\• l
':•_' ' ,' �', ,• �'� iii ° "r , t
1 ' . Attest:.
eye',,
VILLAGEroF OAK'gROOK
t Bye :'President t _
Attest:
6y:" Villade Clerk
,r27 , • J ; .• • , • • 5 t •i . ', .
the position of each Party and a summary of arguments supporting each Party's
position, and (ii) the name of each Party's representatives who have been given
authority to resolve the Dispute. Within thirty (30) days after delivery of the
Dispute Notice, the representatives of both Parties shall meet in DuPage
County, Illinois, at a location mutually agreeable to both parties, as often as they
reasonably deem necessary, to attempt to resolve the Dispute. All reasonable
= requests for information made by one Party to the other shall be honored.
14.18.3 Mediation; Arbitration. If the Dispute has not been resolved within sixty (60)
days after delivery of the Dispute Notice, or each Party fail to meet within thirty
(30) days after delivery of the Dispute Note as hereinabove provided, both
Parties shall immediately proceed to mandatory mediation, which shall also be
held in DuPage County, Illinois. If the Dispute has not been resolved by
mediation within ninety (90) days after delivery of the Dispute Notice, the parties
shall immediately proceed to binding arbitration. The arbitration shall be
conducted by three (3) arbitrators in accordance with the rules and procedures
of the American Arbitration Association. The Parties shall each chose an
arbitrator and those two arbitrators shall select a third arbitrator. The arbitration
proceeding shall be conducted as expeditiously as possible and the decision of
the arbitration panel shall be final and binding on the Parties hereto with no right
to appeal.
14.18.4Evidentiary. All negotiations pursuant to this Section shall be treated as
compromise and settlement negotiations. Nothing said or disclosed, nor any
document produced, in the course of such negotiations which is not otherwise
Independently discoverable shall be offered or received as evidence or used for
impeachment or any other purpose in any arbitration proceeding.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
set forth above.
CITY OF ELMHURST
By:
Mayor
Attest:
By:
City Clerk
Village Clerk
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BILL OF SALE
Seller, the Village of Oak Brook, an Illinois municipal corporation, in consideration of
Three Hundred Fifty Thousand Dollars ($350,000.00), receipt of which is hereby acknowledged,
does hereby sell, assign, transfer and set over to Buyer, the City of Elmhurst, an Illinois
municipal corporation, the following described personal property, to wit:
The Yorkfield Area Water System ( "Water System ") as more particularly
described in the Yorkfield Area Water System Purchase Agreement dated as of
May 28, 2008.
Seller hereby represents and warrants to Buyer that Seller is the absolute owner of said
property, that said property is free and clear of all liens, charges and encumbrances, and that
Seller has full right, power and authority to sell said personal property and to make this bill of
sale. ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY
EXCLUDED.
In witness whereof, Seller has caused this bill of sale to be signed and sealed at Oak
Brook, Illinois as of this 28th day of May, 2008.
STATE OF ILLINOIS
ss
COUNTY OF COOK
Village of Oak Brook,
la
John W. Craig — Village President
ATTEST:
Charlotte Pruss — Village Clerk
I, the undersigned, a notary public in and for said County, in the State aforesaid, do
hereby certify that John C. Craig and Charlotte Pruss are personally known to me to be the
same persons whose names are subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged that they signed, sealed and delivered the said instrument
on behalf of the Village of Oak Brook as their free and voluntary act, for the uses and purposes
therein set forth.
Given under my hand and official seal this 28th day of May, 2008.
Notary Public
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RECAPTURE AGREEMENT PROVIDING FOR THE CONSTRUCTION AND
� ab ALLOCATION OF COSTS FOR CERTAIN PUBLIC IMPROVEMENT
�j S
THIS AGREEMENT, made and entered into this O fA day of February, 2003,
between the Village of Oak Brook, an Illinois municipal corporation (hereinafter referred to as
the "VILLAGE "), and Michael and Stacy Wrasse, (hereinafter referred to as the "OWNER"),
WITNESSETH
WHEREAS, the OWNER is the owner of certain real estate commonly known as 0 S 563
Poplar, Elmhurst, Illinois, and legally described in Exhibit A, which is attached hereto,
(hereinafter referred to as the "PROPERTY ");
WHEREAS, the OWNER has built a single- family residence on the PROPERTY as
described on Exhibit A (hereinafter referred to as the "DEVELOPMENT "); and,
WHEREAS, as part of the proposed DEVELOPMENT, OWNER has agreed and caused
the construction of a new water main along Poplar between Harvard and Concord Streets as a
public improvement to serve the PROPERTY (hereinafter referred to as the "RECAPTURE
IMPROVEMENT "); and,
WHEREAS, in addition to the PROPERTY, there are other parcels of developed and
undeveloped property described in Exhibit B hereto which are benefited by, and may in the
future be connected to, the RECAPTURE IMPROVEMENT, or a branch thereof ('BENEFITED
PARCELS "); and
WHEREAS, the parties have determined that it is necessary, convenient and desirable to
enter into this AGREEMENT to ensure that owners of the BENEFITED PARCELS pay their
fair share of the RECAPTURE IMPROVEMENT; and
WHEREAS, it was in the best interest of the VILLAGE that the RECAPTURE
IMPROVEMENT be constructed, including appropriate ` appurtenances, as a public
improvement, in order to provide a method for the orderly development of the PROPERTY and
BENEFITED PARCELS, which are hereinafter sometimes collectively referred to as "SERVICE
AREA "; and,
WHEREAS, it is equitable and fair that the owners of the BENEFITED PARCELS share
the cost and expense for the RECAPTURE IMPROVEMENT on a proportionate basis.
NOW, THEREFORE, in consideration of the foregoing premises and in further
consideration of the mutual covenants, agreements and conditions herein contained, the parties
hereto agree as follows:
1. The provisions of the preamble are incorporated into a made a part of this agreement.
r :EXHIBIT
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2. Definitions:
a. ADMINISTRATION FEE shall mean a fee equal to two percent (2 %) of the
REIMBURSEMENT FEE after the receipt of the first $10,000 of all REEVIBURSE-
MENT FEES under this Agreement, which is assessed to offset the VILLAGE's
expenses in establishing and administering this reimbursement program.
b. BENEFITED PARCELS shall mean those parcels within the SERVICE AREA,
including the DEVELOPMENT as set forth on Exhibit B, which may at some point in
fhe- future connect to the RECAPTURE IMPROVEMENT.
---- -- - - - -- - -- --
c. DEVELOPMENT shall mean the construction of a single- family residence on the
PROPERTY to be served by the RECAPTURE IMPROVEMENT.
d. PROPERTY shall mean the property of the OWNER to be served by the
RECAPTURE IMPROVEMENT.
e. EAPROVEMENT COSTS shall mean the charges and expenses reasonably incurred
by the OWNER, and approved by the VILLAGE as set forth on Exhibit C.
f. REIMBURSEMENT FEES shall mean a fee established for each BENEFITED
PARCEL, which represents such parcel's proportionate fair share of the
REIMBURSEMENT COSTS and which may include interest, as set forth on Exhibit
C.
g. REIMBURSEMENT PAYMENT shall mean the payment of REIMBURSEMENT
COSTS to the OWNER by the VILLAGE as provided herein.
h. SERVICE AREA shall mean the area served by the RECAPTURE
IMPROVEMENT, including property of the OWNER and other developed and
undeveloped property, which could potentially connect to the RECAPTURE
IMPROVEMENT at some point in the future.
i. TRIGGERING EVENT shall be defined as follows:
i. Because the RECAPTURE IMPROVEMENT is a water main that is or may be
connected to a BENEFITED PARCEL to provide water services, the
TRIGGERING EVENT shall be the date on which an application for connection
to the RECAPTURE IMPROVEMENT is made by or for a BENEFITED
PARCEL. Provided, in the event that, prior to construction of the RECAPTURE
IMPROVEMENT the BENEFITED PARCEL was connected to an existing water
main which was replaced by the RECAPTURE IMPROVEMENT but wl-uch had
adequately served the then existing uses on the BENEFITED PARCEL in
conformance with applicable codes and laws, including meeting required fire
flows, then the TRIGGERING EVENT shall be the date on which the
BENEFITED PARCEL seeks permit(s) from the VILLAGE to substantially
2
improve, expand or rebuild the existing uses or structures to the point that, in the
determination by the VILLAGE, the RECAPTURE IMPROVEMENT would
have been required had they not been constructed by the OWNER.
j. RECAPTURE IMPROVEMENT shall mean the improvement as set forth on Exhibit
B, which has been constructed or installed by or at the expense of the OWNER,
which improvement has been dedicated to the VILLAGE, which are expected to
enhance the use and value of the BENEFITED PARCELS.
3. The following documents are incorporated into and made a part of this agreement by
reference: (Note: The following exhibits may be combined where appropriate.)
a. Exhibit "A ", attached hereto, description and map of the PROPERTY and the
DEVELOPMENT.
b. Exhibit "B ", attached hereto, and map showing location of the RECAPTURE
IMPROVEMENT, the SERVICE AREA, and BENEFITED PARCELS.
c. Exhibit "C ", attached hereto, the REIMBURSEMENT FEES attributed to the
RECAPTURE IMPROVEMENT and the REIMBURSEMENT FEE attributed to
each BENEFITED PARCEL.
4. OWNER shall, within 30 days of the date of this Agreement, pay to the VILLAGE a
processing fee of $500.
5. In the manner and to the extent hereinafter set forth, the VILLAGE agrees to partially
reimburse the OWNER based on the REIMBURSEMENT FEES. This partial reimburse-
ment is intended to equitably spread these REIMBURSEMENT FEES among the
BENEFITED PARCELS, including the PROPERTY which are, or may at some future
time be, connected to the RECAPTURE IMPROVEMENT or a branch thereof.
6. The REEVIBURSEMENT FEES, less the ADMINISTRATION FEES, have been
established for each BENEFITED PARCEL, which represents such parcel's
proportionate fair share of the RECAPTURE IMPROVEMENT COSTS. The VILLAGE
shall assess and collect from each BENEFITED PARCEL the REIMBURSEMENT FEE
as set forth on Exhibit C. The REIMBURSEMENT FEE shall be assessed against and
paid by a BENEFITED PARCEL upon the occurrence of a TRIGGERING EVENT. The
owners of any BENEFITED PARCEL have enjoyed and will receive the advantage of
greater use, value and utility of the BENEFITED PARCEL as a consequence of the
RECAPTURE IMPROVEMENT and shall pay the REIlvIBURSEMENT FEE upon the
occurrence of TRIGGERING EVENT.
7. The REMBURSEMENT FEES collected by the VILLAGE pursuant to this Agreement
shall be accumulated and paid to the OWNER as REIMBURSEMENT PAYMENTS on
the first Friday in June and the first Friday in December. The VILLAGE shall retain the
ADMINISTRATION FEE. It is understood and agreed that the REE14BURSEMENT
PAYMENTS shall be limited to funds collected from such BENEFITED PARCELS for
the REIMBURSEMENT FEE and payment made hereunder shall be solely out of said
funds. This agreement shall not be construed as creating any obligation upon the
VILLAGE to make payments from its general funds or revenue. Such
REIMBURSEMENT PAYMENTS shall continue under the earlier of the following:
a. The REIMBURSEMENT FEE is paid in full; or
b. The expiration of this Agreement; or
c. All BENEFITED PARCELS have been connected to the RECAPTURE IMPROVE-
MENT, or a branch thereof.
8. The VILLAGE shall endeavor in good faith to enforce the provisions hereof and to
collect and accumulate the REIMBURSEMENT FEE as established herein. However,
the parties recognize the possibility of omissions or errors, and it is agreed that the
VILLAGE shall not be liable in any way in the event that it shall fail, for any reason
whatsoever, to collect or enforce the payment of said REIMBURSEMENT FEES or
accumulate the REIMBURSEMENT FEE as established herein. The VILLAGE'S
obligation is limited to the anzount(s) actually collected pursuant to the provisions of this
Agreement for REIMBURSEMENT FEES.
9. The OWNER shall indemnify, defend and save harmless the VILLAGE, its officers,
agents and employees, from any and all actions, claims or demands arising out of the
existence, terms, administration, enforcement or attempted enforcement of any provision
of this Agreement. The OWNER shall prosecute or defend any action, proceeding or
cause, legal or otherwise, that may arise out of the existence, terms, administration,
enforcement or attempted enforcement of any provisions of this AGREEMENT. The
O'VV R will hold the VILLAGE, its officers, agents and employees, free and harmless
from any costs, fees (including attorney's fees and expenses) or judgments which the
VILLAGE, its officers, agents or employees may incur or become liable for pursuant to
any such action, claim or cause.
10. Except as otherwise herein provided, this Agreement shall inure to the benefit of, and be
binding upon, the parties, their successors and assigns. Any party to this agreement, or
their respective successors or assigns may either in law or in equity, by suit, mandamus
or other proceeding, enforce and compel performance of this Agreement.
11. In the event any part or portion of this Agreement is held invalid or unenforceable by a
court of competent jurisdiction, the remaining portions hereof shall continue in full force
and effect.
12. This Agreement shall continue in full force and effect for a term of 20 years from the date
set forth on page 1. At the end of said terms, this Agreement shall expire and be of no
further force or effect.
4
13. This Agreement shall be recorded in the Office of the Recorder of Deeds of the county in
which the PROPERTY and all BENEFITED PARCELS are located. OWNER shall pay
all recording fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
OWNERS:
Michael Wrasse
VILLAGE OF OAK BROOK,
an Illinois municipal corporation
&e-x Xle
By:
Village President"`'
erk
E
Stacy Wrasse
STATE OF ILLINOIS
SS.
COUNTY OF DuPAGE
I, , a notary public in and for said County, in the State aforesaid,
DO HEREBY CERTIFY that and personally
known to me to be the same persons whose names are subscribed in the foregoing instrument,
appeared before me this day in person and acknowledged that they signed, sealed and delivered the
-said instrument as their-free and-voluntary act; for the uses and purposes therein set forth.-
GIVEN under my hand and official seal, this day of 12003.
STATE OF ILLINOIS
SS.
COUNTY OF DuPAGE
Notary Public
Con-nnission Expires:
I, ,-j"o y C 6- RIE S J�4 , a notary public in and for said County, in the State aforesaid,
DO HEREBY CERTIFY that Karen M. Bushy, personally known to m e to be the Village President
of the Village of Oak Brook and Linda K.•Gonnella, personally known to be the Village Clerk of said
municipal corporation , and personally known to me to be the same persons whose names are
subscribed in the foregoing instrument, appeared before me this day in person and acknowledged that
as such Village President and Village Clerk of said municipal corporation, and caused the corporate
seal of said Village to be affixed hereto pursuant to authority given by the corporate authorities of
said corporation, as their free and voluntary act and as the free and voluntary act and deed of said
municipal corporation for the uses and purposes therein set forth.
GIVEN under my hand and official seal, this day of , 2003.
OFFICIAL SEAL
JOYCE RESH
WYTARY PUBLIC, STATE OF ILLINOIS
66Y COPNiMSS1ON EXPMS:OW20MO
0
Commission Expires:
02/20/2003 15:39 6304720048 MARTIN CRAIG
s
EX IT A,
LEGAL DESCRIPTION
Legal Description:
PAGE 08
The North 103. ' ' ' ' • •
68 fect of Lot 94 in Fred'k H. BarLlett's York Road Farm Estates,'a subd'nrision . of part of the West ha. lf of
the Southeast Quarter and part of the East half of the Southwest Quarter of Section 13, Township 39 North, Range n,
East of the Third Principal Meridian, according to the plat thereo recorded August 11, 1939 as Document 402497, in
DuPage County, Illinois.
Also (mown as Tract 1 In O'Halr- Wrasse Assessment Plat recorded November 19, 2001 as Document R2001-2S12611 in
DuPage County, Illinois.
02/20/2003 15:39
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6304720048
MARTIN CRAIG
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LIST OF BE PROPERTIES
PROPERTY LOCATION FRONTAGE
0 S 563 POPLAR (OWNER'S PARCEL) 107 feet
0 S 564 POPLAR 107 fect
VACANT LOT NEXT TO I W 355 CONCORD 107 feet
VACANT LOT NEXT TO I W 375 CONCORD' 107 feet
SERVICE AREA
PAGE 09
% SEWRE
250%
25%
25%
250/9
- ----------
to lbc divided into two lots each with 107 feet of frontage along POPlar
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to lbc divided into two lots each with 107 feet of frontage along POPlar
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02/20/2803 15:39
6304720048
MARTIN CRAIG
EXIMT1 C
ENOROVENENT COSTS
AND REIMBURSEMENT FEES
WATER MAIN EXTENSION
pppLAR (]BETWEEN CONCORD AND HARVARD)
PAGE 10
IMTROVEMENT COSTS:
Engineering fees S 4,000.00 (for design and plan drawings for waxer main)
6}} water main SZ7,500.00 (fog' 6" D. I. P., cl 52 water main and parts,
auguring 25 I_f_ of roadway, trench backFli, chlorination
and testing)
Surface restoration S 37000.00
Admin. Fee to Oak Brook S 500.00
Attorneys fees S 1,000.00
TOTAL COSTS $ 36.000.00
REnqB-cnRSEMENT F1cES:
25% of 536,000 — $9,000.00 for each Benefited Parcel hooldog up to new water main
OKI
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EXHIBIT
P I viA n n 1 n 'b h � C, 0 G to C5 ',%J'0'7, C11(1,1-tA
iyn
Ities into said area from existing water -ind
_tly owned and operated by the Oak Brook
-,,1ene.ral vicinity of Yorkf'ield.
on September 28, 1962) the Petitioner on
to file an amended application instanter in
de for Petltioner to enter into agreements
'i . -: al home owner& in the Yorkfield communityj
`e original plan for Petitioner to enter
trhe Yorkfield Home Owners Association, Inc.
i"? r
home owners associations) namely the
Asoociation, Inc. and Yorkfield Civic Asso-
Liaid cause during the course of the hearings
-.. :>
testifi(l to the urgent need for water and
0U
"07-
Yorkfield community, the area involved in
Me case. At the conclusion of the hearing
'',9, 1962, the case was marked "Heard and Taken'
,,r,,n, having considered the entire record
advised in the premises, is of the opin-
Brook Utility Company, petitioner
corporation duly organized and
J_ c, 6 under and by virtue of the laws of the
StRt(-, of Illinois, with charter powers to con-
1)p,erate and maintain a water supply and
system and a sewage collection and
dimposal system in the State of Illinois) and
� public utility within the meaning
"An Act concerning public
as amended; that said Petitioner
'-plication to this Commission for a
1,A, ,crate 'of convenience and necessity to
Terate and maintain a public water system
sewer system in an area hereinafter
by reason of the foregoing, the
has jurisdiction over the Petitioner
and of the subject matter herein;
has been given pursuant to law
aiLC "' ,ules and regulations of this Commission;
Xo;titioner proposes to construct) operate
-'r-,vin an extension to its existing water
and its existing sewage disposal system
irl order to provide said services to an unincor-
community commonly referred to as " Yorkfield"
in Du Page County, Illinois) and to transact
a water and sewer public utility business in said
area hereinafter more fully described in Finding
48577
is now transacting a water
public utility business in
"J York Township, Du Page
Qd and demand for public water
sewage disposal service in the
by Said proposed extensions and
and sewage disposal services
to provide said services in
community commonly known as
'k--afed in Du Page County, Illinois,
if,ore particularly described as
east by Cook County limits,
by the city limits of Elmhurst -,
", y the center line of Roosevelt
the west by the center line of
all in York Township, Du Page
._ul legally described as The
of Section 13, Township 39
ianE,e Eleven East of the Third Princi-
Du Page County, Illinois;
operation and maintenance
i.=ater and sewer plant extensions
in Finding (5) hereof will
convenience and is necessary
e eartificate of public convenience
be granted to Petitioner for
operation and maintenance of
--opoued water and sewer facilities
described in Finding (5) hereof;
proposes to enter into contracts
-A i,',ome owners in said Yorkf:Leld area
(5) herein, whereby said home
toward the costs for con-
!,lie water system, including pumping
nydrants, transmission and distribu-
i�ia'lyxa aucl other appurtenances and facilities
and used in conrection with the
.'.,blic water service, and also for
-.,,wage treatment and disposal plant
�3anitary sewer purposes, consisting
sewage collection mains and laterals,
outlets and such other appurtenances and facilities
tnBtalled and used in connection with the
of sanitary sewage disposal service to
C.
"Ir-t its, caner -proposes to construct said water
and said sanitary sewer collec-
the Yorkfield area an d connect said
"n' �fsystem now ser-
Altioner's existin
vicinity of Yor ield provided
or in interest bearing noes at the
e 01, 0%_,per annum is received from at least 200
said area within 120 days after the
ztificate o f convenience and neces-
a.Ll existing agreements and contracts,
or proposed agreements or contracts, between the
-iny home owners associations in said
or between Petitioner and individual
e ln
raid area, should be set aside and
6eciared null and void;
(10) that Petitioner should bra authorized to enter into
agreements with individual home own ^rs residing; in
c said Yorkfield area described in Finding (5) herein,
j said agreements to set forth the terms and conditlovls
under which water and sewer- facilities will be con
struated and service made available by Petitioner,
and that such an agreement shall be formulated and
submitted by Petitioner to thin Commission within
20 days aftev the date of this order for Commission
review and approval;
(11) that all monies collected and received by Petitioner
from individual home owners in said Yorkfield area
Alk for the construction of facilities required to furn-
ish public water and sewer service to said home
owners and prospective future owners shall be con-
-sidered -a-s- -contributions- in ai -d of- construction and
shall so show on the books of the Petitioner, and
shall riot be made a part of any valuation used in
establishing Petitioner's rate base;
(12) that Petitioner shall file with the Commission separ-
ate estimates of the costs fbr said proposed, water
facilities and for said proposed sanitary sewer
facilities within 1 "0 days from the date of this
order, and such est mates shall show the type and
size of mains and pipe that will be used in said
construction projects, and the total footage and
unit costs of each size, along with such other
attendant costs that would normally be included in
such estimates;
(13) that the certificate of convenience and necessity
granted herein should be contingent upon Petitioner
obtaining at leas 200 signed agreements from
individual home owners in the Yorkfield area within
90 days from the date of this order; that failure
to obtain said 200 agreements within said 90 days
should make the certificate granted herein null
and void;
(14) that the rates, rules, regulations and conditions
of service now in effect in Petitioner's presently
certificated service area and as shown in the rate
schedule on file with this Commission, shall be the
rates, rules, regulations and conditions of service
applicable to the Yorkfield area described in Find-
ing (5) hereof, and said schedule should be posted
in all offices of the Petitioner for a period of
30 days and should be designated as the rats) rules,
regulations and conditions of service applicable
to said Yorkfield area for water and sewer services
upon commencement of said services in said area.
IT I3 HEREBY CERTIFIED that public convenience and
necessity require the construction, operation and maintenar.;i of
a public water system and a public sewage collection and dispos-
al system in the area commonly referred to as "Yorkfield" in
York Township, Du Page County, Illinois, as more particularly
described in Finding (5) herein, and for the transaction of a
water and sewer public utility business by Oak Brook Utility
e
J
�J
48577
IT IS THEREFORE ORDERED that a certificate of convenience
and necessity be, and it 13 hereby, granted to Oak Brook Utility
Compat.j for (1) the construction, operation and maintenance of a
public water system and a public sewage collection and disposal
system in the area commonly referred to as Yorkfield in York
Township, Du Page County, Illinois, as described in Finding (5)
of This order, and (2) the transaction of a water and sewer pub-
lic utility business in connection therewith; that said certi-
ficate shall be issued under the seal of this Commission and
authenticated by its Secretary, all pursuant to the provisions
of Section 55 of "An Act coicerning public utilities," as
amended, and now in force.
IT IS FURTHER ORDERED that the foregoing certificate is
granted upon the express condition and provision that authority
or permission to use the lands to be 'occupied by the above -
described water and sewer facilities shall be secured from land-
owners and /or public authoritiea as and where required by law.
IT IS FURTHER ORDERED that the foregoing certificate is
granted upon the further condition that said certificate shall
be declared null and void at the expiration of 90 days from the
date of this order if Petitioner fails to obtain at least 200
signed agreements from individual home owners in said Yorkfield
area described in Finding (5) of this order within said 90 -day
period.
IT IS FURTHER ORDERED that the foregoing certificate is
granted upon the express condition and provision that before any
construction of said water and sewer facilities are commenced,
Petitioner shall secure such permit or permits from the Depart -
ment of Public Health of the State of Illinois, and from the
Sanitary Water Board of the State of Illinois, or from such
other public authorities as may be required by law,
IT IS FURTHER ORDERED that the rates, rules, regulations
and conditions of service now in effect in Petitioner's present-
ly certificated service area, and as shown in the rate schedule
on file with this Commission,shall be the rates, rules, regula-
tions and conditions of service applicable to the area commonly
- 5 -
referred to as Yorkfield located in York Township, Du Page County,
Illinois, as described in Finding (5)of this order, arid that said
schedule shall be posted in a conspicuous place in 311 offices of
the Oak Brook Utility Company for a period of 30 days prior to
AMIL commencement of service, and shall be identified as the rates for
is water and sewer service to be placed in effect for said area.
IT IS FURTHER ORDERED that all monies received by Peti-
necessary to provide water and sewer services to said home owners
and future prospective customers in said area shall be considered
as contributions in aid of construction and shall so show on the
',oks of the Oak Brook Utility Company and shall not be included
in any figures establishing the rate base for said company.
IT IS FUTTHER ORDERED that Oak Brook Utility Company
shall provide said water and sewer facilities and services in
accordance with the provisions of Finding 10 of this order.
IT IS FURTHER ORDERED that Oak Brook Utility Company
shall file with the Commission within 120 days from the date of
this order, and in accordance with Finding (12) of this order,
separate estimates of the costs for the proposed water facilities
and proposed sewer facilities required to serve the area describ-
ed in Finding ( 5 ) hereof.
IT IS FURTHER ORDERED that any and all existing agree-
ments and contracts or proposed agreements and contracts relating
to the construction of water and sewer facilities in said York-
field area and having Oak Brook Utility Company and any home
owners association or individual home owners in said area as
parties thereto identified as exhibits in this case are hereby
set aside.
IT IS FURTHER ORDERED that Oak Brook Utility Company
shall submit a new contract form showing said company and indivi-
dual home owners as parties for Commission review and approval
within 20 days after the date of this order.
tioner
from
individual home
owners and future prospective custom-
ers in
said
Yorkf field area
for construction of the facilities
necessary to provide water and sewer services to said home owners
and future prospective customers in said area shall be considered
as contributions in aid of construction and shall so show on the
',oks of the Oak Brook Utility Company and shall not be included
in any figures establishing the rate base for said company.
IT IS FUTTHER ORDERED that Oak Brook Utility Company
shall provide said water and sewer facilities and services in
accordance with the provisions of Finding 10 of this order.
IT IS FURTHER ORDERED that Oak Brook Utility Company
shall file with the Commission within 120 days from the date of
this order, and in accordance with Finding (12) of this order,
separate estimates of the costs for the proposed water facilities
and proposed sewer facilities required to serve the area describ-
ed in Finding ( 5 ) hereof.
IT IS FURTHER ORDERED that any and all existing agree-
ments and contracts or proposed agreements and contracts relating
to the construction of water and sewer facilities in said York-
field area and having Oak Brook Utility Company and any home
owners association or individual home owners in said area as
parties thereto identified as exhibits in this case are hereby
set aside.
IT IS FURTHER ORDERED that Oak Brook Utility Company
shall submit a new contract form showing said company and indivi-
dual home owners as parties for Commission review and approval
within 20 days after the date of this order.
All SWAIR. t
>10 Kill lot! qT ;j ;7,7 1,
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