R-819 - 10/08/2002 - DUPAGE WATER COMM. - Resolutions. i i
RESOLUTION 2002- AG- DWC -EX1 -R -819
A RESOLUTION AUTHORIZING EXECUTION
OF AN INTERGOVERNMENTAL AGREEMENT
FOR THE PROVISION OF LAKE MICHIGAN WATER
TO AREAS OF DuPAGE COUNTY AFFECTED BY CONTAMINATION
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WHEREAS, the President and Board of Trustees of the Village of Oak Brook deem it in the best
interests of the Village of Oak Brook to enter into an Intergovernmental Agreement with the DuPage Water
Commission and the County of DuPage for the provision of Lake Michigan water to areas of DuPage
County affected by contamination with the goal of providing safe, uncontaminated water to certain areas of
DuPage County.
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS that the
"Intergovernmental Agreement for the Provision of Lake Michigan Water to Areas of DuPage County
Affected by Contamination" between the Village of Oak Brook, the DuPage Water Commission and the
County of DuPage attached hereto as Exhibit A is hereby approved and the Village President is authorized
to execute;and the Village Clerk to attest to said Agreement.
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BE IT FURTHER RESOLVED that the Village Clerk is authorized and directed to provide certified
copies of this resolution and executed copies of the attached agreement to the Clerk of the DuPage Water
Commission and the Clerk of the County of DuPage.
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PASSED AND APPROVED this 8th day of October, 2002 by the President and Board of
Trustees of the Village of Oak Brook, DuPage and Cook Counties, Illinois, according to a roll call vote as
follows
Ayes
Nays
Trustees Aktipis, Caleel, Craig, Korin, Miologos and Savino
None
Absent' I None
Abstain I None
�.
OF �OaK
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\ t � -• � ,III �.
r
4 " erk
Village Presid
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EXHIBPT A
THIS INTERGOVERNMENTAL AGREEMENT FOR THE PROVISION OF LAKE MICHIGAN
WATER TO AREAS OF DUPAGE COUNTY AFFECTED BY CONTAMINATION (this
"Agreement") is made as of 2002, by and between the DuPage Water Commission,
Counties of DuPage, Cook, and Will, Illinois (the "Commission "), a commission and public corporation
under Division 135 of Article 11 of the Illinois Municipal Code and the Water Commission Act of 1985;
the County of DuPage, Illinois (the "County "), a body corporate and politic; and those units of local
government of the State of Illinois hereafter defined as the "Charter Customers," as each executes this
Agreement.
ARTICLE ONE
RECITALS
WHEREAS, the Commission is a public corporation created under the Water Commission Act of
1985, as amended, and Division 135 of Article 11 of the Illinois Municipal Code, and is authorized to
enter into contracts and agreements relating to the purchase and supply of water pursuant to the laws of
the State of Illinois; and
WHEREAS, the County is a unit of local government, organized and existing under and by
irtue of the laws of the State of Illinois; and
WHEREAS, the Charter Customers are units of local government, organized and exipsting under
and by virtue of the laws of the State of Illinois; and
WHEREAS, the Charter Customers have entered into a Contract with the Commission to
purchase Lake Water sufficient to meet the water supply needs of the Charter Customers and others (the
"Water Purchase and Sale Contract" as hereafter defined); and
WHEREAS, pursuant to Article VII, Section 10 of the Illinois Constitution of 1970, and the
I itergo� ernmental Cooperation Act, as amended, the Commission, the County, and the Charter
Customers are authorized to enter into this Agreement; and
WHEREAS, certain areas of the County have been affected by contaminated water, which poses
a significant, threat to the health and safety of numerous individuals; and
WHEREAS, subject to certain limitations, each of the Commission, the County, andAhe Charter
Customers are authorized by law to engage in the retail sale of water to areas of the County, affected by
contaminated well water; and
WHEREAS, the Commission, the County, and the Charter Customers, desire to create a method
of pro,. iding an adequate supply of Lake Michigan water to areas of the County affected by
contamination;
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants and
agreements 'herein contained, the parties hereto agree as follows:
ARTICLE TWO
DEFINITIONS
2.1. "Agreement" means this Intergovernmental Agreement for the Provision of Lake
Nlichigan Water to Areas of DuPage County Affected by Contamination.
2 2. I "Charter Customer" means a unit of local government of the State of Illinois (not
including the! Commission) that is a party to the Water Purchase and Sale Contract, excluding, however,
any such unit of local government whose rights and obligations under the Water Purchase and Sale
Contract have been terminated.
2.3. ; "Commission" means the DuPage Water Commission Counties of DuPage, Cook , and
Will, Illinois,
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2.4. "Connection Costs" has the meaning set forth in Section 5.2.
2.5. "County " means the County of DuPage, Illinois.
26. "Customer" means any person who purchases Lake Water from a Charter Customer
pursuant to this Agreement solely for use by that person and not for redistribution or resale.
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2.7. "Customer Costs" has the meaning set forth in Section 5.2.
2.8 "Effective Date" means the effective date of this Agreement, as defined in Section 8.1.
2 9. "Existing Main" means a water main, existing or under construction on the Effective
Date of this Agreement, of a Charter Customer from which a Customer within a Service Area can
rcce« e service under the terms and conditions of this Agreement without the need for the Charter
Customer to construct a New Main.
10 "Lake Water" means potable, filtered water drawn from Lake Michigan.
2 11. "MCL" means a maximum contaminant level as determined in accordance iith Section
12. "Market Rate" means the average cost of borrowing of the Commission.
2 13; "New Main" means a water main and related infrastructure, not existing or under
construction on the Effective Date of this Agreement, constructed by a Charter Customer for the purpose
of providing service to a Service Area under the terms and conditions of this Agreement. New Main
shall not include a water main constructed by a Charter Customer exclusively for reasons other than
prop iding service under the terms of this Agreement.
2.14. "Pathway Service Area" has the meaning set forth in Section 3.2.
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2 15. Potential Customer means any Customer or any other person currently requiring water
service on property located within a Service Area. For purposes of this definition, property currently
requiring water service includes property for which a building permit has been issued.
2 16. "Primary Service Area" has the meaning set forth in Section 3.2.
2 17 "Professional Fees" has the meaning set forth in Section 5.2.
2 18. i "Recapture Costs" has the meaning set forth in Section 5.2.
2.19.' "Secondary Service Area" has the meaning set forth in Section 3.2.
2 20. "Service Area" means either a Primary Service Area, a Secondary Serviced Area, or a
Pathway Service Area. The term Service Area will be used in provisions of this Agreement that are
intended to apply to any type of Service Area, regardless of whether it is a Primary Service Area, a
Secondary Service Area, or a Pathway Service Area. When a provision of this Agreement is intended to
apply specifically to a Primary Service Area, specifically to a Secondary Service Area, or specifically to
a Pathway Service Area, the appropriate term will be used.
2 21 "Service Costs" means Service Provision Costs, Recapture Costs, Connection Costs,
Customer Costs, and Professional Fees.
2 21 "Service Provision Costs" has the meaning set forth in Section 5.2.
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23, "Source Well" has the meaning set forth in Section 3.2.
2 24. "Task Force" means the Commission task force established for the purpose of advising
the Commission on the implementation of this Agreement, or if no longer in existence, shall mean the
Commission or any other committee or task force of the Commission so delegated.
2.25. "Water Allocation" means, with respect to a Charter Customer, such Charter
Customer's allocation and allowable excess from time to time of Lake Water pursuant to the Level of
Lake Michigan Act, as amended from time to time See the State of Illinois Department of
Transportation, Division of Water Resources Decision on 1989 Allocation Review, Order No. LMO 89-
2 and subsequent orders of the State of Illinois Department of Transportation, Division of Water
Resources, or the successor to its responsibilities, the State of Illinois Department of Natural Resources,
Office of Water Resources); and such other amounts of Lake Water as such Charter Customer may
lawfully take.
2 26 "Water Purchase and Sale Contract" means the water purchase and sale contract, dated
JLine 11, 1986, between the Commission and the Charter Customers, as amended or supplemented from
time to time
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ARTICLE THREE
AREAS TO BE SERVED
3.1. Provision of Lake Water to Service Areas. Charter Customers will provide, and
Customers may receive, Lake Water in conformance with the terms and conditions described in this
Agreement.
3.2. Service Areas. Service Areas shall be determined by the Commission, with the advice of
the Task Force, as follows. If, as a result of testing conducted pursuant to Section 3.3, a well is located
that exhibits a level of any regulated chemical that exceeds maximum contaminant level ( "MCL ") as
determined by the National Primary Drinking Water Regulations, 40 C.F.R. § 141.1 et seq., of the Safe
Drinking Water Act, 42 U.S.C. § 300f et seq., and/or the regulations related to the Illinois Pollution
Control Board in 35 I11. Admin. Code 620.105 et seq. (the "Source Well "), the Commissions shall retain
an engineer, with the advice of the Task Force, who shall conduct additional testing. If, upon
completion of the additional testing, the engineer determines that:
a. over fifty percent (50 %) of the sampled wells in an area emanatirig from the
Source Well have levels of any regulated chemical that exceed MCL as determined by the
National Primary Drinking Water Regulations, 40 C.F.R. § 141.1 et seq., of the Safe Drinking
Water Act, 42 U.S.C. § 300f et seq., and/or the regulations related to the Illino� s Pollution
Control Board in 35 Ill. Admin. Code 620.105 et seq., then that area shall be designated by the
Commission as a "Primary Service Area."
b. in an area that the Commission determines to be in reasonable proximity to a
Primary Service Area:
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i. over fifty percent (50 %) of the sampled wells contain detectable
concentrations of the same regulated chemical as determined by the Natioinal Primary
Drinking Water Regulations, 40 C.F.R. § 141.1 et seq., of the Safe Drinking Water Act,
42 U.S C. § 300f et seq., and/or the regulations related to the Illinois Pollui ion Control
Board in 35 I11. Admin. Code 620.105 et seq., that is found in the reasonably proximate
Primary Service Area; or
ii. over fifty p ercent ( 50% ) of the sampled wells have levels of
any regulated
chemical as determined by the National Primary Drinking Water Regulations, 40 C.F.R.
§ 141.1 et seq, of the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.1, and/or the
regulations related to the Illinois Pollution Control Board in 35 I11. Admin. Code 620.105
et seq , which contain detectable concentrations but do not exceed MCL andl which, after
reviewing an engineer's report, the Commission determines are substantially likely to
exceed MCL in the reasonably foreseeable future,
then that area shall be designated by the Commission as a "Secondary Service Area."
Notwithstanding the requirements of Section 3.2.a., the Commission may designate an area as a Primary
Service Area if the engineer retained by the Commission determines that a significant life, safety, or
health risk related to human consumption of water is posed in the area or is likely to be posed in the
future Upon designation by the Commission, service under the terms of this Agreement shall be offered
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to all Primary Service Areas and Secondary Service Areas, as well as, in the case of service! from New
Mains, to the area along the pathway of the New Main that is not either a Primary Service Area or a
Secondary Service Area ( "Pathway Service Area "). The Commission has the authority to split a Service
Area into one or more Service Areas if the Commission, with the advice of the Task Force, determines
that it is more practical to provide service to a Service Area through the combination of one or more
Ne« Mains or Existing Mains. For each Service Area, an implementing agreement will be prepared and
approved by ! the County, the Commission, and the Charter Customer that is to provide service to the
SerN ice Area. The implementing agreement for each Service Area will include: (a) financing terms
prepared in accordance with Section 5 of this Agreement; (b) terms and conditions specific to the
pro% ision of service by the Charter Customer to the particular Service Area; and (c) a map oflthe Service
Area, which shall be the definitive source regarding the boundaries of the Service Area and shall govern
any disputes that arise concerning locations to be served in the Service Area. Without regard to any
other provision of this Agreement, no party hereto shall be obligated to take any action pursuant to this
Agreement until the County, the Commission, and the Charter Customer asked to provide Lake Water,
hay e entered into an implementing agreement. The decision whether or not to enter into an
implementing agreement shall be within the sole and absolute discretion of each party.
3.3. Testing for Contamination. The County will oversee the process of !testing for
contamination. Testing will be conducted by laboratories certified for chemical analysis of potable
water by the Illinois Environmental Protection Agency Division of Laboratories.
3.4. Payment of Costs for Testing. The County will be responsible for paying, or seeking
reimbursement for the costs of testing for contamination.
3.5. ; Commission Reimbursement for Certain Contamination Testing Costs. To the extent that
the County anticipates that it will:
a. incur costs that are out of the ordinary or in excess of the County's current budget
for contamination testing; or
b. be unable to obtain reimbursement from other sources,
it may, prior to conducting testing, submit a request to the Commission for consideration of
reimbursement of such costs from the Commission. This request will be reviewed by the Task Force,
which shall make a recommendation to the Commission as to whether Commission reimbursement is
appropriate. If the Commission approves reimbursement, the costs will be allocated by the Commission,
«henever possible, to the cost of providing service to the Service Area in which testing was conducted.
ARTICLE FOUR
PROVISION OF SERVICE
4.1. 1 Service from an Existing Main. If an Existing Main can be used to provide service to a
Seri ice Area, the Charter Customer that owns the Existing Main will make Lake Water available to the
Ser,, ice Area from the Existing Main, provided, however that if, in any Service Area, an
intergovernmental agreement has been entered into pertaining to the Existing Main, then that
intergovernmental agreement shall govern and shall determine which Charter Customer willl make Lake
Water available to the Service Area from the Existing Main.
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4.2. ! Service from a New Main. If an Existing Main is not available to provide service to a
Service Area, the closest adjacent Charter Customer, to the extent not prohibited by law I or existing
intergovernmental or boundary agreement, shall make Lake Water available through the con Istruction of
a Nc�% Main in order to provide Lake Water to the Service Area. If the closest adjacent Charter
Customer is unable to make Lake Water available through the construction of a New Main, because the
Charter Customer is prohibited from doing so by law or existing intergovernmental oar boundary
agreement, then another adjacent Charter Customer shall make Lake Water available through the
construction of a New Main.
a. there is no Charter Customer adjacent to a Service Area; or
b. all Charter Customers adjacent to a Service Area are unable to make Lake Water
available through the construction of a New Main, because all Charter Customers adjacent to a
Service Area are prohibited from doing so by law or existing intergovernmental or boundary
agreement; or
C. if the Charter Customers adjacent to a Service Areas are unable to, agree to a
method of making Lake Water available through the construction of a New Main,
then the Commission, with the advice of the Task Force, will determine the method by which Lake
W'ater will be made available through the construction of a New Main.
43 Task Force Advisory Role. The Task Force shall advise the Commission regarding the
pro% ision of service under this Agreement, which shall include, but not be limited to, advising the
Commission on the methods of determining costs of and financing for service described in Article 5 of
thi,, \greement and advising the Commission on the terms of service described in Article 6 of this
,\ ,;regiment.
ARTICLE FIVE
COSTS OF AND FINANCING FOR SERVICE
5.1 Financing Process. After a Service Area is designated, Service Costs related to providing
ser% ice shall be determined and a means of providing financing for service shall be made available as set
firth below. The Task Force shall advise the Commission, on the process of determining Service Costs
and arranging financing for each Service Area.
5.2. Determination of Service Costs. The Task Force shall advise the Commission on Service
Costs for each Service Area. The final determination of Service Costs for each Service Area shall be
determined by the Commission. These Service Costs may vary based upon field contingencies related to
each Seri ice Area. The Service Costs shall consist of the following components:
a. reasonable engineering, construction, and property acquisition costs incurred by
the County, the Commission, or the Charter Customer related to providing service to a Service
Area ( "Service Provision Costs ");
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b. reimbursement of the Charter Customer for actual costs previously expended for
construction of Existing Mains used to provide service to a Customer, as contained in the
ordinances of the Charter Customer ( "Recapture Costs "); 1
C. reasonable connection costs and other fees that a Customer must pay in order to
receive service from a Charter Customer, which the Task Force shall recommend and the
Commission shall determine for each Customer of a Service Area ( "Connection Costs ");
d. reasonable costs incurred by each Customer in order that the Customer's property
may; receive service from a New Main or an Existing Main, which the Task IForce shall
recommend and the Commission shall determine for each Customer of a Service Area
( "Customer Costs "); and
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e. reasonable professional fees allocated to the Service Area as described in Section
5.3 ( "Professional Fees ") (Service Provision Costs, Recapture Costs, Connection Costs,
Customer Costs, and Professional Fees are collectively referred to as "Service Costs ").
If a portion of a New Main or an Existing Main is used to serve an area that is not a Service Area, then
the Seri ice Costs for the Service Area shall be reduced accordingly on a proportionate basis. Separate
determinations of residential Service Costs and commercial and industrial Service Costs may be made
for each Service Area.
5 3. Professional Fees. Professional Fees shall include reasonable legal fees, limited to those
borne by the County, the Commission, and the Charter Customers, related to negotiating, exl cuting, and
preparing the Agreement, which shall be reimbursed by the Commission. Professional Fees shall also
Include (a) public relations fees related to encouraging Potential Customers from a Service Area to
recei% e service, as described in Section 6.6, and (b) contamination testing costs, as describe in Section
t��r �� hich the Task Force shall make a recommendation and the Commission shall make a final
determination that they be.
a. allocated over all Service Areas to which service is provided;
b allocated to a particular Service Area to which service is provided, if the
Professional Fees directly relate to the provision of service to a particular Service Area;
C. reimbursed by the Commission from a reserve established by the Commission; or
d. neither allocated pursuant to Section 5.3.a. or Section 5.3.b. nor, reimbursed
pursuant to Section 5.3.c.
54. Special Service Areas. For each Service Area in which service shall be provided, the
County will have the option of proposing and implementing a special service area. Ifl the County
chooses not to propose and implement a special service area, it shall give notice to the Charter Customer
that is to provide service to the Service Area and the County and the Charter Customer that is to provide
sere ice to the Service Area will confer as to whether the implementation of a special service area is
appropnate. If the County and the Charter Customer that is to provide service to the Service Area
cannot agree as to whether implementation of a special service area is appropriate, the appropriateness
of implementation of a special service area will be submitted to the Task Force, which shall make a
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recommendation to the Commission, which shall determine whether a special service area will be
pursued in the Service Area. The Commission will provide financing for Service Costs for each special
sere ice area that is created as described in this Section 5.4. on the same terms (i.e. interest rate and
maturity date) as described hereafter in Section 5.5. The Service Costs for each special service area that
is created as described in this Section 5.4 shall be determined as described above in Section 5.2, and
shall also include reasonable costs incurred by the County related to the establishment and operation of
the special service area, which costs shall be determined as described above in Section 5.2. The County
and the Charter Customer that is to provide service to the Service Area will cooperate in billing and
collecting any Service Costs payable as a result of each special service area that is created as described
in this Section 5.4. A Charter Customer will have the option of proposing and implementing a special
service area with the same rights, terms, and conditions that apply to the County under this Section 5.4.
5.5. Loans from Commission to Charter Customers. If:
a. after the completion of the process described in Section 5.4, a special service area
is not pursued; or
b. the implementation of a special service area is rejected in a Service Area; or
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C. for any other reason, a special service area cannot be implemented in a Service
Area,
then the Commission shall provide twenty (20) year loans to the Charter Customer that provides service
to the Service Area at a rate of two percent (2 %) per annum for the residential Service Costs related to
the Service Area and at the Market Rate for the commercial and industrial Service Costs related to the
Seri ice Area. The Commission will provide funds to Charter Customers either through the
Commission's cash on hand or via the issuance of the Commission's revenue bonds. Interest payments
i I I be due annually during the period of the loan, beginning in year one. Principal payments of equal
installments will be due annually, beginning six years after the loan is made. The Charter Customer will
be required to pay the Commission at least the following amount annually: the total amount of interest
and principal due that year multiplied by the number of Customers in the Service Area divided by the
number of Potential Customers in the Service Area. If any Charter Customer debt remains after the
menty (20) year loan period concludes, the Commission shall extend the terms of the loan Imade to the
Charter Customer for a commercially reasonable period, provided the Charter Customer is not in default.
5.6. Charter Customer Charges to Customers. A Charter Customer may charge each
Customer no more than each Customers proportionate share of Service Costs based on the number of
Potential Customers in a Service Area, provided, however, that if, in a Service Area in which service is
to be provided via a New Main, the implementation of a special service area is rejected, then the
proportionate share of Service Costs that the Charter Customer may charge each Customer shall be no
more than the following amount: the total amount of Service Costs for the Service Area divided by
nine- tenths (9/10) of the number of Potential Customers in the Service Area (unless more than nine -
tenths (9/10) of the number of Potential Customers in the Service Area are Customers, in which case a
Charter Customer may charge each Customer no more than each Customer's proportionate share of
Service Costs based on the number of Potential Customers in the Service Area). If at any time the
number of Potential Customers in a Service Area exceeds the number of Potential Customers in the
Seri ice Area at the time proportionate shares are initially calculated, then the proportionate share of
each Customer in the Service Area shall be adjusted accordingly. A Charter Customer may, with
Commission approval, adjust the charges for each Customer based on factors such as the water
consumption of each Customer and whether the Customer is a residential or commercial or industrial
Customer
5.7. Loans from Charter Customers to Customers. Each Charter Customer receiving a loan
from the Commission shall offer twenty (20) year loans to residential Customers at a rate of two percent
(2 ",0) per annum for each residential Customer's proportionate share of Service Costs, as determined in
accordance with Section 5.6. Interest payments will be due annually during the period of the loan,
beginning in year one. Principal payments of equal installments will be due annually beginning six
years after the loan is made. Each Charter Customer shall offer twenty (20) year loans to i commercial
and industrial Customers at the Market Rate as of the date of the loan for each commercial or industrial
Customer's proportionate share of Service Costs, as determined in accordance with Section 5.6. Interest
payments will be due annually during the period of the loan, beginning in year one. Principal payments
will be due annually beginning six years after the loan is made. If the proportionate share of each
Customer in a Service Area is adjusted pursuant to Section 5.6, then the loan amounts and repayment
amounts will be recalculated accordingly. The twenty (20) year loan term shall apply only to Customers
who enter into loan agreements when loans are initially offered in a Service Area. Customers who enter
into loan agreements after loans were initially offered in a Service Area shall have only the remaining
number of years to repay the loan as Customers who entered into loan agreements when loans were
initially offered. For example, if the loan is taken in year 1, the Customer shall have twenty (20) years
to repay the loan; if the loan is taken in year 5, the Customer shall have fifteen (15) years to repay the
loan Furthermore, Customers who enter into loan agreements after loans were initially offered in a
Service Area shall be responsible for interest payments as if they entered into a loan agreement when
loans m, ere initially offered. For example, if the loan is taken in year 1, the Customer shall begin paying
interest in year 1 through the term of the loan; if the loan is taken in year 5, the Customer shall be
responsible for paying interest for years 1 -4, as well as paying interest from year 5 through the term of
the loan. The form of the loan agreement offered by a Charter Customer to a Customer will be reviewed
b% the Commission pnor to its use.
5.8. Potential Grant Programs. The Task Force shall advise the Commission as tIo the extent
to �k hich grants may be available (a) to assist in providing financing for the provision of service in each
Seri ice Area, and (b) to assist Customers from Service Areas who are unable to afford Customer Costs.
5.9. Grants to Customers. The County and the Charter Customer that provides ;service to a
Seri ice Area will cooperate in order to obtain and distribute grants to assist Customers who satisfy
applicable grant enteria.
ARTICLE SIX
TERMS OF SERVICE
6.1. Lake Water to be Made Available as Soon as Practicable. A Charter Customer will make
Lake IN ater available as soon as practicable from its existing Water Allocation to a Service Area.
6.2 Condition of Service to Secondary Service Areas. If service can only be provided to a
Secondary Service Area through a New Main, then, as a condition of being eligible to receive service
under the terms of this Agreement:
a. a special service area, as described above in Section 5.4, must be implemented in
the Secondary Service Area; or
b if the implementation of a special service area is rejected in a Secondary Service
Area, or for any other reason a special service area cannot be implemented in a Secondary
Service Area, at least seventy percent (70 %) of property owners within the Secondary Service
Area must sign a pre - annexation agreement or a water service or water loan agreement with the
Charter Customer providing service to the Secondary Service Area.
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If these conditions are not met and service under the terms of this Agreement is not provided in a
Secondary Service Area, the County and the Charter Customer that was to provide service to the
Secondary Service Area shall be reimbursed by the Commission for reasonable costs related to
attempting to provide service to the Secondary Service Area, such as, but not limited to, engineering
costs and costs related to preparation of establishment of a special service area.
63. Service from an Existing Main. Pursuant to the other terms of this Agreement, Charter
Customers shall offer access to an Existing Main:
a. immediately after a Customer from a Service Area signs a prey annexation
agreement with the Charter Customer, if such an agreement is required by the Charter Customer
as a condition of receiving Lake Water; or
b. within ninety (90) days of the execution of this Agreement, if a pre! annexation
agreement is not required by the Charter Customer.
64. Serti ice from a New Main. Within thirty (30) days of the date that a Service Area
becomes eligible for service from a New Main, or by the date determined by the Commission if the
Charter Customer submits, and the Commission approves, a written request to the Commission for an
e \tension of the thirty (30) day period, the Charter Customer serving the Service Area shall provide a
schedule to the County that shall include necessary engineering and construction considerations,
including projected completion dates, related to construction and installation of the New Main. If the
County determines that the project completion date for the construction of the New Main is
unacceptable because (a) of life, safety, and health concerns of the County related to providing Lake
Water to the Service Areal and (b) the County has the ability to provide service to the Service Area more
rapidly, then the County may submit a request to the Task Force to expedite the construction of the New
Main The Charter Customer may submit evidence to the Task Force and the Commission regarding the
reasonableness of the Charter Customer's proposed project completion date. The Task Force shall make
a recommendation to the Commission regarding whether the County's request should be granted. The
Commission shall review the Task Force's recommendation and shall determine whether to approve the
County's request. If the Commission approves the County's request, the New Main will belbuilt to the
specifications of the Charter Customer providing Lake Water to the Service Area. Upon completion, the
New Main will be dedicated by the County to the Charter Customer providing service to the Service
Area The Commission will reimburse the County for its share of Service Costs related to providing
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service to the Service Area in the same manner as the Charter Customer is reimbursed. The
Commission will charge these costs to the Charter Customer providing service to the Service Area. In
order to repay these costs, the Charter Customer will be entitled to a loan from the Commission and the
Customers in the Service Area will be entitled to a loan from the Charter Customer undler the terms
described in Article Five of this Agreement. To the extent not expressly provided for herein, the County
and each Charter Customer do not waive any legal rights to act independently from this Agreement in
order to construct New Mains or to take any other actions necessary to provide water service.
6.5. ; Notice to Potential Customers from Service Areas. After a method of financing service is
determined for a Service Area, the Charter Customer providing service to the Service Area shall give
notice of the Service Costs to Potential Customers from the Service Area. Potential Customers offered
Lake Water from an Existing Main shall have a period of no less than ninety (90) days from jthe date that
Ser,, ice Cost information is sent to them for initial consideration of whether they wish to receive service
from the Charter Customer. Potential Customers offered Lake Water from a New Main shall have a
period of no less than six months from the date that Service Cost information is sent to them for initial
consideration of whether they wish to receive service from the Charter Customer. Service Cost
information shall be determined as described above in Sections 5.2 and 5.3.
6.6. Cooperation Concerning Customers. The County, the Commission, and j the Charter
Customers shall cooperate in efforts to maximize the number of Customers from Service Areas who
receive Lake Water. Such cooperation shall include, but not be limited to: (a) public relations activities
and other forms of publicity detailing the benefits of receiving Lake Water; (b) establishing a public
record that an area is contaminated and notifying property owners of the contamination; and (c) such
other activities upon which the County, the Commission, and the Charter Customers agree.
67 Cooperation Concerning Property Acquisition. The County, the Commission, and the
Charter Customers shall cooperate in acquiring property rights necessary to provide service under the
terms of this Agreement.
68. Limitations on Conditions and on Annexation. A Charter Customer may require that
each Customer enter into a pre - annexation agreement or, where annexation is not a condition of service,
a «ater service or water loan agreement with the Charter Customer as a pre- condition of receiving Lake
% ater from the Charter Customer under the terms of this Agreement. Any such agreement shall not
require annexation earlier than ten years from the end of the respective initial consideration periods
described in Section 6 5. During the period before annexation, a Charter Customer willi not require
implementation of any conditions on the provision of Lake Water to a Customer, except those set forth
in a pre - annexation agreement that are allowed by generally applicable laws, ordinances, rules, and
regulations related to the receipt and use of Lake Water (such as sprinkling limitations and sanitary
plumbing requirements). Except as provided herein, Charter Customers do not waive any annexation
rights to which they may be entitled under State law or under pre - existing annexation agreements or pre -
anne \ation agreements
69. Right to Discontinue Service. To the extent authorized by law, Charter Customers shall
ha,, e the right to discontinue service to any Customer of a Service Area who receives Lake Water from
the Charter Customer if the Customer of the Service Area:
a fails to meet regular payment obligations for Lake Water;
b. fails to pay appropriate costs related to the costs of receiving service, including
the Customer's share of Service Costs; or
C. breaches a pre - annexation agreement with the Charter Customer.
Furthermore, to the extent authorized by law, a lien will attach to the property of the Customer of the
Service Area in the amount that the Customer is in default to the Charter Customer providing Lake
Water
6 10. Ability to Charge Differential Rate. A Charter Customer may provide Lake Water to
Customers of a Service Area at a differential rate than to a Charter Customer's own municipal customers
so long as the rate is not unreasonably discriminatory as described in Illinois common law. '
ARTICLE SEVEN
DEFAULTS AND REMEDIES
7.1. Commission Default and County and Charter Customer Remedies. The occurrence of the
following shall constitute a default by the Commission under this Agreement: failure by the Commission
to observe and perform any covenant, condition, or agreement on its part to be observed or performed
hereunder and the continuation of the same for thirty (30) days after the Commission's receipt of written
notice thereof from either the County or any Charter Customer (which notice shall be provided to all
parties to this Agreement); provided, however, if such matter cannot with due diligence be remedied by
the Commission within such thirty (30) day period, and the Commission shall have diligently prosecuted
the remedying of such failure within such thirty (30) days, such period shall be extended by such
additional time period as may be reasonably required by the Commission to cure or correct such matter.
If the Commission defaults under this Agreement, the remedies of a Charter Customer or the
County, as affected, shall be limited to an action in equity against the Commission to enforce or compel
perforinance of this Agreement and actions for mandamus and specific performances of the
Commission's obligations to the extent allowed by law. Election of any permitted remedy shall not be a
%% ai% cr of any other permitted remedy, but each of the other parties to this Agreement agree that it will
not seek, and does not have the right to seek, a judgment or to recover a judgment for monetary damages
a(_,ainst the Commission.
7.2. County Default and Commission and Charter Customer Remedies. The occurrence of the
follov, ing shall constitute a default by the County under this Agreement: failure by the County to
obser-v e and perform any covenant, condition, or agreement on its part to be observed of performed
hereunder and the continuation of the same for thirty (30) days after the County's receipt of written
notice thereof from either the Commission or any Charter Customer (which notice shall bed provided to
all parties to this Agreement); provided, however, if such matter cannot with due diligence be remedied
by the County within such thirty (30) day period, and the County shall have diligently prosecuted the
reniedying of such failure within such thirty (30) days, such period shall be extended by such additional
time period as may be reasonably required by the County to cure or correct such matter.
If the County defaults under this Agreement, the remedies of a Charter Customer or the
Commission, as affected, shall be limited to an action in equity against the County to enforce or compel
performance of this Agreement and actions for mandamus and specific performances of the County's
12
i
obligations to the extent allowed by law. Election of any permitted remedy shall not be a waiver of any
other permitted remedy, but each of the other parties to this Agreement agree that it will not seek, and
does not have the right to seek, a judgment or to recover a judgment for monetary damages against the
County.
7.3. Charter Customer Default and Commission and County Remedies. The occurrence of
any or more of the following matters shall constitute a default by a Charter Customer, under this
Agreement failure by a Charter Customer to observe and perform any covenant, condition, or
agreement on its part to be observed or performed hereunder and the continuation of the same for thirty
(30) days after the Charter Customer's receipt of written notice thereof from either the County or the
Commission (which notice shall be provided to all parties to this Agreement); provided, however, if
such matter cannot with due diligence be remedied by the Charter Customer within such thirty (30) day
period, and the Charter Customer shall have diligently prosecuted the remedying of such failure within
such thirty (30) days, such period shall be extended by such additional time period as may be reasonably
required by the Charter Customer to cure or correct such matter.
If a Charter Customer defaults under this Agreement, the remedies of the County or the
Commission, as affected, shall be limited to an action in equity against the Charter Customer to enforce
or compel performance of this Agreement and actions for mandamus and specific performances of the
Charter Customer's obligations to the extent allowed by law. Election of any permitted remedy shall not
be a Nvaiver of any other permitted remedy, but each of the other parties to this Agreement agree that it
will not seek, and does not have the right to seek, a judgment or to recover a judgment for monetary
damages against the Charter Customer.
74. Force Majeure. In case by reason of force majeure any party hereto shall be rendered
unable wholly or in part to carry out its obligation under this Agreement, then if such party shall give
notice and full particulars of such force majeure in writing to the other parties within a reasonable time
after occurrence of the event or cause relied on, the obligation of the party giving such notice, so far as it
is affected by such force majeure shall be suspended during the continuance of the inability then
claimed, but for no longer period, and any such party shall endeavor to remove or overcome such
inability with all reasonable dispatch. The term "force majeure" as employed herein shall mean acts of
God, strikes, lockouts or other industrial disturbances, acts of public enemy, orders of any kind of the
Government of the United States, of the State of Illinois, or of any civil or military authority,
insurrections, riots, terrorism, acts of terror, epidemics, landslides, lightning, earthquakes, fires,
humcanes, storms, floods, washouts, droughts, arrests, restraints of government and people, civil
disturbances, explosions, breakage or accidents to machinery, pipelines, canals, or tunnels, partial or
entire failure of water supply, and inability on the part of the Commission or of any Charter Customer to
deliver Lake Water hereunder, or of any Charter Customer to receive Lake Water hereunder,i on account
of any other causes not reasonably within the control of the party claiming such inability. The settlement
of strikes and lockouts shall be entirely within the discretion of the party having the difficulty and that
the above requirement that any "Force Majeure" shall be remedied with all reasonable dispatch shall not
require the settlement of strikes and lockouts by acceding to the demands of the opposing party or
parties when such settlement is unfavorable to it in the judgment of the party having the difficulty. The
Task Force shall make a recommendation to the Commission, which shall determine if force majeure
�k hich renders any of the parties unable to perform under this Agreement shall relieve a Charter
Customer of its obligations to make payments to the Commission that may be required under'Section 5.
13
ARTICLE EIGHT
MISCELLANEOUS
8 1 Effective Date and Term. The County and the Commission shall authorize I and execute
this Agreement and offer it to the Charter Customers. Each Charter Customer shall have until
November 1, 2002, to authorize the execution of and execute a counterpart of this Agreement as
acceptance hereof and to file same with the Clerk of the Commission. This Agreement will become
effective on the date upon which the first Charter Customer shall have executed and filed a counterpart
hereof (the "Effective Date "). If effective as hereinabove provided, this Agreement shall continue in full
force and effect (a) for a period of forty (40) years after the Effective Date or (b) until the termination of
the Commission, whichever is earlier. The County, the Commission, and the Charter Customers agree
to begin consideration of whether an extension of this Agreement is necessary not later than three (3)
years prior to the end of the term of this Agreement.
82. Assignment. Neither the County, nor the Commission, nor any Charter Customer may
assign, convey, or transfer this Agreement, or any part hereof, without prior written consent; of the other
parties to this Agreement. This Agreement shall be binding upon, and inure to the benefit of, the
successors and permitted assigns of the parties hereto.
8.3. Entire Agreement. This Agreement represents the entire agreement between j the County,
the Commission, and the Charter Customers that execute this Agreement with respect to the obligations
and transactions to be performed hereunder, and supersedes all prior negotiations, proposals, term
sheets, representations, or agreements, whether written or oral. This Agreement may be amended or
modified ied only by a written instrument signed by the County, the Commission, and each o I the Charter
Customers that executes this Agreement. Nothing in this Agreement shall supersede, modify, terminate,
or alter in any way the terms and provisions of the Water Purchase and Sale Contract, which shall
remain in full force and effect.
84 Notices. All notices or communications provided for herein shall be in writing and shall
he delivered to the County, the Commission, or the Charter Customers affected either in person or by
United States mail, via registered mail, return receipt requested, postage prepaid, addressed to the
principal office thereof.
Any action hereunder to be taken by the County, the Commission, or any Charter Customer may
he e,� ►denced by copy of official proceedings (including pertinent minutes, motions, resolutions, or
ordinances) duly certified by the Clerk of the County, the Commission, or such Charter Customer.
8 5 No Waiver. No course of dealing of failure of the County, the Commission, or any
Charter Customer to enforce strictly any term, right, or condition of this Agreement shall be construed as
a v� a►� er of such term, right, or condition. No express waiver of any term, right, or condition of this
A ,reement shall operate as a waiver of any other term, right, or condition.
8 6 No Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the
contracting parties, and nothing in this Agreement is intended, either expressly or impliedly, to provide
an, right or benefit of any kind whatsoever to any person or entity who is not a party to this Agreement,
or to acknowledge, establish, or impose any legal duty to any third party.
14
8.7. Limitation on Commission's Financial Commitment. Notwithstanding any other
provision of this Agreement, at no time during the term of this Agreement shall the Commission's total
Financial commitment under this Agreement exceed ten million dollars ($10,000,000). No Charter
Customer shall be required to take any action under this Agreement, including, but not limited to,
matters relating to the Task Force, after the Commission has made a total financial commitment of ten
million dollars ($10,000,000).
i
8 8. Governing Law. This Agreement shall be governed by and construed exclusively under
the applicable laws of the State of Illinois, without regard to conflicts of law principles.
8.9. Counterparts. This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, and all of which shall constitute but one and the same; instrument.
Any such counterpart may be signed by one or more of the parties hereto so long as each of the parties
hereto has signed one or more of such counterparts.
IN WITNESS WHEREOF, the parties hereto have caused their respective corporate (names to be
subscribed hereto and their respective corporate seals to be hereto affixed by their duly authorized
officers, all on the date set opposite their respective corporate names.
15
• , i
[SEAL]
Attest
By
Date
[SEAL]
Attest
B,,
ow
cou
Lem
U
t► Xw XTVC"ini.r
Chairman
i
IE
�ti F 0A�t
cf
02
.o
By. �,•�
[CityNillage] Clerk
[CITYNILLAGE] OF OAK BROOK ,
17
[Mayor/President]
a S
ILLINOIS
r-
o t y
V
STATE OF ILLINOIS )
SS.
COUNTIES OF COOK AND DUPAGE )
I, Linda K. Gonnella, do hereby certify that I am the duly elected and acting
Village Clerk of the Village of Oak Brook, DuPage and Cook Counties, Illinois!
I DO
FURTHER
CERTIFY that on October 8, 2002
the corporate
authorities
of the
above municipality passed
and approved
Resolution 2002-
AG- DWC
-EXI -R -819
1
"A RESOLUTION AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL
AGREEMENT FOR THE PROVISION OF LAKE MICHIGAN WATER TO AREAS
OF DuPAGE COUNTY AFFECTED BY CONTAMINATION"
I DO FURTHER CERTIFY that the original documents, of which the
annexed copy is a true copy, is entrusted to my care for safekeeping and I am the
keeper of the same.
I DO FURTHER CERTIFY that I am the keeper of the records, journals,
entries, resolutions, ordinances and documents of the said Village of Oak B rook,
DuPage and Cook Counties, Illinois.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal of the Village of Oak Brook this 11th day of October , 20 02—.
I fin, , ,, f:�,• /r ��.. `Vi i
.P Ile
\ou ;�zy
Linda K. Gonnella, CHIC
Village Clerk
Village of Oak Brook
DuPage and Cook Counties, IL
i