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R-747 - 05/23/2000 - AGREEMENT - Resolutions ExhibitsINTERGOVERNMENTAL AGREEMENT CONCERNING THE CONSTRUCTION AND OPERATION OF A JOINT FACILITY AND INTERIM AND EMERGENCY WATER DELIVERIES INTERGOVERNMENTAL AGREEMENT CONCERNING THE CONSTRUCTION AND OPERATION OF A JOINT FACILITY AND INTERIM AND EMERGENCY WATER DELIVERIES THIS AGREEMENT, made and entered into this day of No s e- m e>r, , 20 Da by and between the DU PAGE WATER COMMISSION, a county water commission created and existing under the laws of the State of Illinois (the "Commission "), the CITY OF OAKBROOK TERRACE, a municipal corporation created and existing under the laws of the State of Illinois (the "City "), and the VILLAGE OF OAK BROOK, a municipal, corporation created and existing under the laws of the State of Illinois (the "Village "), WITNESSETH: WHEREAS, the Commission was formed and exists pursuant to Division 135 of Article 11 of the Illinois Municipal Code (65 ILCS 5/11 -135 -1 et sea.), and the Water Commission Act of 1985 (70 ILCS 3720/1 et sew.), for the purposes of securing an adequate source and supply of water for its customers; and WHEREAS, the Commission operates a water system supplying a number of ` municipalities and other customers in DuPage County with water drawn from Lake Michigan (the "Commission Waterworks System "); and WHEREAS, the City owns and operates a water distribution system (the "City Water System "), which system is supplied with water by the Commission pursuant to the terms of that certain Water Purchase and Sale Contract for the Oakbrook Terrace Unit System, dated as of December 1, 1997 (the "Subsequent Customer Contract ") with the Commission, and which system is connected at a single point to the Commission Waterworks System; and se WHEREAS, the Commission and the City have determined that it is necessary and desirable to provide an additional connection point between the Commission Waterworks System and the City Water System; and WHEREAS, it is in the best interest of the Commission and the City to design and construct this connection as a Joint Facility (the "Joint Facility ") which would include all equipment necessary to accomplish the additional connection described above; and WHEREAS, the construction of the Joint Facility, together with certain extensions to the City Water System, will enable the City to serve additional properties within the City of Oakbrook Terrace that currently cannot be served by the existing City Water System (the "Additional Properties "); and WHEREAS, the City desires to serve the Additional Properties before the Joint Facility is operational; and WHEREAS, the Village owns and operates a water distribution system (the "Village Water System "), which system is supplied with water by the Commission pursuant to the terms of that certain Water Purchase and Sale Contract, dated as of June 11, 1986 (the "Charter Customer Contract ") with the Commission; and WHEREAS, the City Water System is adjacent to the Village Water System and, upon the construction of a new connection between the City Water System and the Village Water System (the "Second City/Village Connection "), together with certain extensions to the City Water System, the Village Water System will be capable of transmitting and delivering water purchased by the City from the Commission through the Village Water System to the City Water System for service to the Additional Properties; and -2- WHEREAS, the Village is willing to provide such alternate delivery of water to the City until such time as the Joint Facility is operational and only if such alternate delivery of water does not impair the Village's ability to service its own customers; and WHEREAS, to ensure that the Village's ability to service its own customers is not impaired while the Village is temporarily providing such alternate delivery of water to the City, the City desires to deliver water to the Village during high demand periods through the existing !connection between the City Water System and the Village Water System (the "First City/Village Connection "); and WHEREAS, the Commission has no objection to the interim service arrangements described above so long as, after the Joint Facility becomes operational, the First City/Village Connection and the Second City/Village Connection will be operated and maintained in accordance with the emergency interconnection terms, conditions, and limitations of Subsection 9N of the Subsequent Customer Contract; and WHEREAS, the Commission, the City, and the Village each have determined that is it in their respective best interests to set forth in this Agreement their understandings concerning the construction and operation of the Joint Facility and the interim and emergency water deliveries; and WHEREAS, pursuant to the intergovernmental cooperation provisions of Article VII, Section 10 of the Illinois Constitution of 1970 and the Illinois Intergovernmental Cooperation Act, 5 ILCS 220/1 et sea., and other applicable authority, the Commission, the City, and the Village are authorized to enter into this Agreement; NOW, THEREFORE, it is agreed by, between, and among the Commission, the City, and the Village as follows: -3- I SECTION! 1. PREAMBLES The foregoing recitals are by this reference incorporated herein and made a part hereof as �if fully set forth herein. SECTION! 2. CONSTRUCTION AND OPERATION OF THE JOINT FACILITY A. For purposes of this Agreement, the "Joint Facility" shall mean a facility to convey, measure, and regulate the flow of water from the Commission Waterworks System to the City Water System and shall include the following: (i) A Metering Station, to be known as Metering Station 17b ( "MS- 17b "), for properly conveying and measuring the quantity of Lake Michigan water delivered by the Commission to the City, including certain equipment, devices, and structures, and portions of its water distribution main, including underground feeder pipe lines and related equipment to initially connect MS- 17b to the existing Commission Waterworks System, and all antennas and appurtenant facilities for the Commission's Supervisory Control and Data Acquisition Instrumentation System attributable to MS -17b, as such facilities may be relocated, replaced, extended, or improved from time to time (the "Metering Station "). (ii) A type B pressure adjusting station for the City Water System in accordance with the design criteria set forth in the document entitled "Water Delivery Data DuPage Water Commission" dated June 21, 2000, and identifying the City as "customer ", a copy of which is attached hereto and by this reference incorporated herein and made a part hereof as Exhibit A (the "City PAS "). (iii) Such other equipment and appurtenances as may be necessary for the operation and construction of the foregoing in conformance with the approved design plans therefor. B. The Joint Facility shall be located at a site selected, acquired, and owned by the City (the "Joint Facility Site "). The Joint Facility Site shall be subject to the review and approval of the Commission. The Joint Facility is expected to be constructed on property dedicated to the City on north side of Butterfield Road east of Trans Am Plaza Drive in the City of Oakbrook Terrace. In the event the property is not dedicated or is otherwise SI determined by the Commission and the City to be unsuitable for locating the Joint Facility, the City shall endeavor in good faith to obtain an alternative location for the Joint Facility Site acceptable to both the Commission and the City. C. The City shall be solely responsible for the costs in designing the Joint Facility. It is understood that the Commission will be the contracting party with the design engineer and will administer the design contract for the benefit of both the Commission and the City. The Commission will consult with the City to keep the City advised as to the progress of the design work and to address issues of mutual concern regarding the details of such design work. The final design of the Joint Facility shall be subject to the review of both the Commission and the City and subject to the approval of the Commission to the extent of the Metering Station, the City to the extent of the City PAS, and both the Commission and the City to the extent of the common areas of the Joint Facility. For the purposes of this Agreement, the common areas of the Joint Facility shall include those portions of 'the Joint Facility, such as the structure and area grounds, which serve the i needs of both the Commission and the City. D. The City shall be solely responsible for the costs in constructing the Joint i r Facility. The Commission shall solicit bids for the construction of the Joint Facility, ` including all, equipment and appurtenances necessary for the Metering Station and the City PAS. The Commission's standard form of bidding and construction contract documents shall used and the cost of the Metering Station, the City PAS, and the common areas of ' the Joint Facility shall be separately identified in the bidding and construction contract documents. The Commission agrees to solicit, award, and administer all contracts for the project in the best interest of both the Commission and the City and to consult with, and keep advised, officials of the City regarding the progress of the work and any problems -5- encountered or changes recommended. Both the Commission and the City must agree to the award of any contract for such construction work. Upon approval of both the Commission and the City, the Commission shall enter into a construction contract(s) with the selected contractor(s), and shall administer such construction contract(s) in conformance with this Agreement. It is understood that, although the City will not be a party to the construction contract(s), the City will be designated as a beneficiary of any insurance, guaranty, or warranty required by the construction contract(s). In addition, any change order, as well as final acceptance and approval of the completed Joint Facility, shall be subject to the approval of the Commission to the extent of the Metering Station, the City to the extent of the City PAS, and both the Commission and the City to the extent of the common areas of the Joint Facility. Neither the Commission nor the City shall be required to approve or accept any portion of the Joint Facility until all portions of the Joint Facility, including all punch list items, have been fully and properly completed. E. The City shall reimburse the Commission for the full actual cost incurred by the Commission in connection with (a) the design, bidding, contracting, managing, and actual construction, installation, removal, relocation, replacement, extension, or improvement of the Joint Facility, including without limitation equipment required for the operation of the Joint Facility and all administrative, financing, supervisory, inspection, engineering, surveying, and legal fees, costs, and expenses associated therewith; (b) the acquisition and divestment of lands, easements, and rights of way over lands and waters necessary for the construction, installation, removal, relocation, replacement, extension, or improvement of the Joint Facility, and all administrative, title, surveying, and legal fees, costs, and expenses associated therewith; and (c) the review and processing of plans and agreements for the construction, installation, removal, relocation, replacement, extension, on or improvement of the Joint Facility and in connection with the negotiation, preparation, consideration, and review of this Agreement, including without limitation all legal, engineering, consulting, and administrative fees, costs, and expenses associated therewith. j The City shall reimburse the Commission monthly for such fees, costs, and expenses,' and payment shall be due within thirty (30) days after receipt of an invoice therefor from the Commission. F. Prior to the Commission's solicitation of bids for the construction of the Joint Facility, the City, without charge to the Commission, shall: (a) present the Commission with adequate evidence of merchantable fee simple title to the Joint Facility Site; (b) grant to the Commission all necessary and insured easements for the Joint Facility Site, in substantially the form attached hereto and by this reference incorporated herein and made part hereof as Exhibit B and satisfactory to the Commission's attorneys, free and clear of all liens, claims, encumbrances, and restrictions unless otherwise approved by the Commission in writing; and (c) grant to the Commission all necessary and insured easements for the appropriate location *and installation of antennas and appurtenant facilities for the Commission's Supervisory Control and Data Acquisition Instrumentation System attributable to the Metering Station, free and clear of all liens, claims, encumbrances, and restrictions unless otherwise approved by the Commission in writing. G. Upon acceptance and approval of the Joint Facility, ownership of the City PAS and a bill of sale therefor shall be conveyed to the City. Immediately following such conveyance, the City shall own and operate the City PAS, the City PAS shall become the sole and exclusive property of the City, and the City shall have all duty, responsibility, and liability to maintain and repair the City PAS and the common areas of the Joint Facility and the Commission shall have no obligation or duty with respect thereto. Upon completion of -7- the construction and installation of the Joint Facility, the Commission shall maintain and repair the Metering Station. H. Once the Joint Facility becomes operational, the rate of withdrawal from the Joint Facility shall not exceed the rate allowed by Subsections 3A and 9M of the Subsequent Customer Contract. I. The City acknowledges and agrees that: (a) the Commission is not, and shall not be, in any way liable for damages or injuries that may be sustained as a result of the Commission's review and approval of any plans for the Joint Facility, or as a result of the issuance of any approvals, certificates, or acceptances for the development or use of any portion of the Joint Facility, or as a result of the design of the Joint Facility or the operation or maintenance of the Joint Facility; and (b) the Commission's review and approval of any such plans and issuance of any such approvals, certificates, or acceptances does not, and shall not, in any way be deemed to insure the City, or any respective successors, assigns, tenants, or licensees, or any third party, against damage or injury of any kind at any time. J. The City hereby releases the Commission from, agrees that the Commission shall not be liable for, and agrees to indemnify and hold the Commission harmless from: (a) any damages resulting from failure to supply lake water or for any interruption of the lake water supply; (b) any damage to the City Water System caused by the design of the Joint Facility or the operation or maintenance of the Joint Facility; and (c) any claims, litigation, and liabilities for any loss or damage to property or any injury to, or death of, any person that may be occasioned by, connected with, or in any way attributable to, the construction and installation of the Joint Facility or the maintenance of the City Water System or the Joint Facility, or to any exercise by the City of any right or duty herein N granted or any failure by the City to exercise any such right or duty or to comply with any of the terms and conditions of this Agreement. The City shall, and does hereby agree to, pay all expenses, including legal fees and administrative expenses, incurred by the Commission in defending itself with regard to any and all of the matters mentioned in this Subsection 2J. SECTION'S. INTERIM WATER DELIVERIES A. Until such time as the Joint Facility becomes operational, any water transmitted and delivered through the Second City/Village Connection shall be treated as water purchased by the City from the Commission. Notwithstanding any requirement of the Subsequent Customer Contract to the contrary, the Commission shall bear no responsibility for the contamination of such water or deterioration of water quality occurring beyond the Commission's point of delivery to the Village Water System and title to all such water supplied by the Commission shall remain in the Commission to the point of delivery to the Village Water System and thereupon shall pass to the Village and the City as their interests may appear. B. Until such time as the Joint Facility becomes operational, any water transmitted and delivered through the First City/Village Connection shall be treated as water purchased by the Village from the Commission. Notwithstanding any requirement of the Charter Customer Contract to the contrary, the Commission shall bear no responsibility for the contamination of such water or deterioration of water quality occurring beyond the Commission's point of delivery to the City Water System and title to all such water supplied by the Commission shall remain in the Commission to the point of delivery to the City Water System and thereupon shall pass to the City and the Village as their interests may appear. w C. The City and the Village shall furnish, install, and when necessary replace at the Second City/Village Connection and at the First City/Village Connection all necessary; meters, strainers, and instrumentation for measuring properly the quantity of water delivered through the Second City/Village Connection and the First City/Village Connection. D. Until such time as the Joint Facility becomes operational, the Commission shall have exclusive access to and control over the Second City/Village Connection and the First City/Village Connection; provided, however, that the City and the Village shall have access to the Second City/Village Connection and the First City/Village Connection at reasonable times as approved by the Commission for purposes of examination and inspection, but the readings of the meters for billing purposes, calibration, and adjustment of the equipment therein shall be done only by the employees or agents of the Commission. E. Until such time as the Joint Facility becomes operational, the Commission shall read the meter at the Second City/Village Connection and the amount of water delivered to the City Water System through the Second City/Village Connection shall be paid to the Commission directly by the City at the rates applicable pursuant to, and in accordance with, the Subsequent Customer Contract. Until such time as the Joint Facility becomes operational, the Commission shall read the meter at the First City/Village Connection and the amount of water delivered to the Village Water System through the First City/Village Connection shall be paid to the Commission directly by the Village at the rates applicable pursuant to, and in accordance with, the Charter Customer Contract. F. If at any time before the Joint Facility becomes operational it becomes necessary for the Commission to limit its delivery of Lake Water to the City for any reason -10- pursuant to the Subsequent Customer Contract and specifically related to the City, then the Commission may, and shall be entitled to, make or cause the City or the Village to make all necessary and appropriate adjustments to the Second City/Village Connection, to assure that the appropriate amount of water is delivered to the City g durin such period i of curtailment. If at any time before the Joint Facility becomes operational it becomes necessary for the Commission to limit its delivery of Lake Water to the Village for any reason pursuant to the Charter Customer Contract and specifically related to the Village, then the Commission may, and shall be entitled to, make or cause the City or the Village to make all necessary and appropriate adjustments to the First City/Village Connection, to assure that the appropriate amount of water is delivered to the Village during such period of curtailment. G. Until such time as the Joint Facility becomes operational, the rate of withdrawal from the Second City/Village Connection shall not exceed the rate allowed by Subsections 3A and 9M of the Subsequent Customer Contract. Until such time as the Joint Facility becomes operational, the rate of withdrawal from the First City/Village Connection shall not exceed the rate allowed by Subsections 2A and 9M of the Charter Customer Contract. H. The City and the Village each do hereby acknowledge and agree that the Commission shall not be liable either to the City or to the Village for, and each of the City and the Village do hereby release and agree to indemnify and hold harmless the Commission from, any damages occasioned by or in any way related to any interruption of, limitation on, or delay in, the delivery of water to them or to either one of them through the Second City/Village Connection or the First City/Village Connection. -11- SECTION 4. EMERGENCY WATER DELIVERIES A. The Second City/Village Connection shall not be constructed, operated, or maintained except in accordance with the following terms, conditions, and limitations: (i) The Village and the City shall submit to the Commission, for its review and approval, within 60 days following construction of the Second City/Village Connection, a report detailing the exact location of the Second City/Village Connection, the manner in which the Second City/Village Connection has been and will be operated and maintained, and the terms of any written or oral agreement for the operation and maintenance of the Second City/Village Connection. Such report shall include as -built drawings of the Second City/Village Connection and exact duplicates of any written agreement for the operation and maintenance of the Second City/Village Connection. The Second City/Village Connection shall not be operated unless and until the Commission shall have approved such report. No approval of such report shall be withheld unless the Second City/Village Connection, or any agreement for the operation and maintenance of the Second City/Village Connection, violate the Charter Customer Contract, the Subsequent Customer Contract, the Chicago Contract, or applicable laws or regulations, or pose a threat to the Commission or the Commission Waterworks System. (ii) The Second City/Village Connection shall be utilized only under emergency conditions unless otherwise approved, in writing, by the Commission. An emergency condition shall be defined to mean the inability to provide average day flow demands to regular, non - emergency supply customers during a limited period of time due to conditions beyond the control of the party requesting Lake Water. An emergency condition shall not mean any limitation imposed by the Commission on the supply of Lake Water to the Village or the City specifically related to the Village or the City pursuant to the Charter Customer Contract or the Subsequent Customer Contract, as the case may be, and the Second City/Village Connection shall not be utilized to circumvent the provisions of any agreement approved by the Commission for the Alternate Delivery of Lake Water pursuant to Subsection 4B of the Subsequent Customer Contract. (iii) The Second City/Village Connection shall be operated and maintained in such a manner as at no time to place or threaten to place the Commission or the Commission Waterworks System in jeopardy of failing to meet the terms of the Charter Customer Contract, the Subsequent Customer Contract, the Chicago Contract, or the regulations of any agency or governmental authority having jurisdiction over the operation of a public water supply. (iv) The party experiencing the emergency condition shall give telephonic notice to the Commission and to the other party of the emergency condition, the expected duration of the emergency condition, and the amount of Lake -12- Water needed, prior to the operation of the Second City/Village Connection. The Second City/Village Connection shall not be operated unless and until the party experiencing the emergency condition shall have given said notice to the Commission. (v) The party receiving Lake Water through the Second City/Village Connection shall provide daily telephonic notice to the Commission and the party delivering Lake Water for so long as the emergency deliveries continue, and shall provide telephonic notice to the Commission before final shut -off of the emergency flow of Lake Water through the Second City/Village Connection for each such emergency condition. (vi) The Village and the City shall keep a joint record of the amount of Lake Water delivered through the Second City/Village Connection, a copy of which shall be provided to the Commission within five days following termination of the use of the Second City/Village Connection for each such emergency condition and, in any case, every five days where the Second City/Village Connection is in continuous operation for more than five days. (vii) The amount of Lake Water delivered to the Village Water System or to the City Water System through the Second City/Village Connection, as the case may be, shall be paid to the Commission directly by the party receiving Lake Water through the Second City/Village Connection at the rates applicable pursuant to, and in accordance with, that party's water purchase and sale contract with the Commission. In case of service curtailment, the Village's flow of water through the Second City/Village Connection shall be considered as a portion of the Village's allocation from the Commission. In case of service curtailment, the City's flow of water through the Second City/Village Connection shall be considered as a portion of the City's allocation from the Commission. (viii) The Commission shall have the right to inspect the Second City/Village Connection, and its operation and maintenance. The Commission shall have the right to install seals or such other devices as the Commission, in its sole and absolute discretion, determines are necessary to determine the operation of the Second City/Village Connection, and all equipment required to be installed to allow the installation of the seals or such other devices shall be installed at the City's sole cost and expense. (ix) The Commission shall bear no responsibility for, and the Village and the City shall and do hereby release the Commission from, and agree that the Commission shall not be liable for, and agree to indemnify and hold the Commission harmless from, any claims, damages, liabilities, and litigation that may be occasioned by, connected with, or in any way related to the construction, operation, and maintenance of the Second City/Village Connection. The Village and the City shall and do hereby agree to pay all fees, costs, and expenses, including legal and administrative fees, costs, and -13- expenses, incurred by the Commission in defending itself with regard to any and all of the matters mentioned in this Subsection 4A. (x) The operation and maintenance of the Second City/Village Connection shall comply in all other respects with the Water Commission Act of 1985, the Charter Customer Contract, the Subsequent Customer Contract, the Chicago Contract, and Commission Resolution No. R- 13 -90, entitled "A Resolution Expressing the Policy of the DuPage Water Commission Regarding Subsequent Customers," as clarified by Commission Resolution No. R -29- 95, entitled "A Resolution Clarifying Resolution No. R- 13 -90, being A Resolution Expressing the Policy of the DuPage Water Commission Regarding Subsequent Customers," and the requirements of the Commission thereunder. (xi) Notwithstanding anything to the contrary contained in any written or oral agreement for the operation and maintenance of the Second City/Village Connection, the Second City/Village Connection shall be operated and maintained only in accordance with this Subsection 4A and such additional or other terms, conditions, and limitations as the Commission shall impose pursuant to any policy established by the Commission with respect to emergency interconnections. No such agreement shall be amended, modified, or otherwise changed except upon the prior written approval of the Commission. (xii) The Commission reserves the right to order all use of the Second City/Village Connection to be discontinued, and the Village and the City shall and do hereby agree to discontinue such use, at any time the terms, conditions, and limitations of this Subsection 4A and any such additional or other terms, conditions and limitations imposed by the Commission pursuant to any policy established by the Commission with respect to emergency interconnections are not satisfied. B. This Agreement shall constitute the Commission's written approval, as required by, Paragraph 4A(ii) above, for the Village to utilize the Second City/Village Connection to transmit and deliver water purchased by the City from the Commission through the Village Water System to the City Water System for service to the Additional Properties under non - emergency conditions until, and only until, the Joint Facility becomes operational; provided, however, that any such use of the Second City/Village Connection before the Joint Facility is operational shall be subject to the terms, conditions, and limitations set forth in Section 3 of this Agreement; and provided further, however, that in -14- the event this Agreement is sooner terminated pursuant to Subsection 5D of this Agreement, the Commission's approval for the Village to utilize the Second City/Village Connection under non - emergency conditions shall be null and void and of no further force or effect. t " C. The First City/Village Connection shall not be constructed, operated, or maintained except in accordance with the following terms, conditions, and limitations: (i) The Village and the City shall submit to the Commission, for its review and approval, within 60 days following the execution of this Agreement, as -built drawings of the First City/Village Connection. The First City/Village Connection shall not be operated unless and until the Commission shall have approved such as -built drawings. No approval of such as -built drawings shall be withheld unless the First City/Village Connection violates the Charter Customer Contract, the Subsequent Customer Contract, the Chicago Contract, or applicable laws or regulations, or poses a threat to the Commission or the Commission Waterworks System. (ii) The City and the Village shall and do hereby acknowledge and agree that the provisions of Subsection 9N of the Subsequent Customer Contract are incorporated by reference into that certain Intergovernmental Agreement for Interconnection of Municipal Water Systems, dated July 15, 1998, between the City and the Village concerning the construction, operation, and maintenance of the First City/Village Connection (the "Emergency Interconnection Agreement ") as substantive provisions of the Emergency Interconnection Agreement. (iii) The City and the Village shall and do hereby acknowledge and agree that, in the event of a conflict between the provisions of Subsection 9N of the Subsequent Customer Contract and the other provisions of the Emergency Interconnection Agreement, the provisions of Subsection 9N of the Subsequent Customer Contract shall govern and control. (iv) The City and the Village shall and do hereby agree to abide by and be bound to all of the terms and conditions of Subsection 9N of the Subsequent Customer Contract and the Commission's determinations thereunder. (v) The City and the Village shall and do hereby release the Commission from, agree that the Commission shall not be liable for, and agree to indemnify and hold the Commission harmless from, any claims, damages, liabilities, and litigation that may be occasioned by, connected with, or in any way related to the construction, operation, and maintenance of the First City/Village Connection, and agree to pay all fees, costs, and expenses, including legal NNI and administrative fees, costs, and expenses, incurred by the Commission in defending itself with regard to any and all of the matters mentioned in Subsection 9N of the Subsequent Customer Contract. (vi) The City and the Village shall and do hereby agree to discontinue all use of the First City/Village Connection at any time the terms, conditions, and limitations of Subsection 9N of the Subsequent Customer Contract and any additional or other terms, conditions, and limitations imposed by the Commission pursuant to any policy established by the Commission with respect to emergency interconnections are not satisfied. (vii) The City and the Village shall and do hereby acknowledge and agree that, notwithstanding the fact that the Commission is not a party to the Emergency Interconnection Agreement, the Commission shall have the right, but not the obligation, to exercise all rights and remedies available to it under Subsection 9N of the Subsequent Customer Contract and to enforce Emergency Interconnection Agreement. D. This Agreement shall constitute the Commission's written approval, as required by Paragraph 9N(ii) of the Subsequent Customer Contract, for the City to utilize the First City/Village Connection to transmit and deliver water purchased by the Village from the Commission through the City Water System to the Village Water System under non - emergency conditions until, and only until, the Joint Facility becomes operational; provided, however, that any such use of the First City/Village Connection before the Joint Facility is operational shall be subject to the terms, conditions, and limitations set forth in Section 3 of this Agreement; and provided further, however, that in the event this Agreement is sooner terminated pursuant to Subsection 5D of this Agreement, the Commission's approval for the City to utilize the First City/Village Connection under non- emergency conditions shall be null and void and of no further force or effect. SECTION FIVE. LEGAL RELATIONSHIPS AND REQUIREMENTS A. This Agreement, and the Joint Facility provided by this Agreement, shall be deemed to supplement the Subsequent Customer Contract to provide for an additional point of delivery to the Oakbrook Terrace Unit System, as defined in the Subsequent -16- Customer Contract, of the City. Except where expressly provided in this Agreement, nothing in this Agreement shall be construed to be, or applied in any manner, inconsistent with the teems of the Charter Customer Contract or the Subsequent Customer Contract, and if there is any conflict or inconsistency between the terms of this Agreement and the terms of either one or both of those Contracts, then the terms of those Contracts shall control. The Village shall at all times comply with all terms and conditions of the Charter Customer Contract, and the City shall at all times comply with all terms and conditions of the Subsequent Customer Contract, including without limitation the making of all payments due thereunder promptly to the Commission. Under no circumstances shall any dispute of any nature under this Agreement, or the inability to receive water through the Second CityNillage Connection, the First City/Village Connection, or through the Metering Station provided by this Agreement, excuse, delay, or in any other way affect the Village's or the City's performances under such Contracts, including without limitation the making of all such payments. For the purposes of the Subsequent Customer Contract, and the Joint Facility provided by this Agreement, the point of delivery with respect to the City Water System shall be a point in the water main connecting the Metering Station to the City PAS located downstream from the inside face of the outside wall or foundation of the Metering Station a distance of ten (10) feet or where such water main enters the outside face of the outside wall or foundation of the City PAS, whichever is closer to the Metering Station. Notwithstanding anything to the contrary contained in the Subsequent Customer Contract, the Commission and the City expressly acknowledge and agree that the City shall not be entitled to payment or reimbursement from the Commission for the design, SIVA bidding, contracting, managing, and actual construction, installation, removal, relocation, replacement, extension, or improvement of the Joint Facility. B. � The Commission, the City, and the Village agree to meet and cooperate in good faith throughout the term of this Agreement to implement the letter and spirit of the provisions ;set forth herein. The Commission and the City agree and acknowledge that further details regarding the construction and operation of the Joint Facility may be subject to a future agreement. C. This Agreement may not be assigned by any party, in whole or in part, without the prior written consent of the other parties, which consent, with respect to the City and the Village, shall not be unreasonably withheld. D. Either the Commission or the City may terminate this Agreement upon 30 days advance written notice to the other, with a copy to the Village, in the following situations: (i) In the event the property for the Joint Facility Site is not dedicated to the City, or an alternative location is not obtained, as provided in Subsection 2B of this Agreement, on or before December 14, 2000. In the event the City shall not have approved the final design of the City PAS and the common areas of the Joint Facility on or before October 13, 2000. (iii) In the event the Commission and the City are unable to agree on the award by the Commission of a contract(s) for the construction of the Joint Facility on or before November 28, 2000. Upon termination, this Agreement shall be void and of no effect; provided, however, that the City shall remain responsible for all fees, costs, and expenses incurred or accrued by the Commission prior to termination of this Agreement, and the provisions of Subsections 4A and 4C of this Agreement shall survive any such termination. The obligation of the City to reimburse the Commission as required by this Agreement is SM unconditional and irrevocable, payable without set off or counterclaim, and irrespective of whether lake water is ever furnished, made available, or delivered to the City through the Joint Facility, or whether the Joint Facility is completed, operable, or operating, and notwithstanding suspension, interruption, interference, reduction, or curtailment of the supply of lake water. In the event that, following service of such notice but before actual termination, the basis for such notice is corrected, the notice shall be considered void and of no effect, and this Agreement shall continue in full force and effect. E. In case any one or more of the provisions contained in this Agreement should be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby; provided, however, that if the remaining parts hereof may not reasonably be construed together without the part or parts so held invalid or unenforceable, the parties agree to negotiate such reasonable amendments hereto as shall be required to most nearly conform this Agreement, as thereby amended, to the original intention of the parties. -19- IN WITNESS WHEREOF, the DuPage Water Commission, the City of Oakbrook i Terrace, and the Village of Oak Brook have caused this Agreement to be executed on their behalf by their duly authorized officers as of the day and Y ear first above written. ATTEST: �cting Clerk ATTEST: City Cler ATTEST Village Clerk DU PAGE WATER COMMISSION VILLAGE OF OAK BROOK �r r� Mayor -20- EXHIBIT A WATER DELIVERY DATA DU PAGE WATER COMMISSION WATER DELIVERY DATA DU PAGE WATER COMMISSION Date: June 21. 2000 CUSTOMER NAME _ City of Oakbrook Terrace DELIVERY POINT (DWC NODE No.) 410D UPSTREAM DWC METER STATION NO. & LOCATION MS -1713, located on the north side of Butterfield Road iust east of TransAm Plaza Drive TYPE, OF CUSTOMER'S FACILITY REQUIRED Pressure Reducing Station Tvpe B LOCATION AT Butterfield Road iust east of TransAm Plaza Drive DWC DESIGN MINIMUM HYDRAULIC GRADE* (USGS DATUM) 907 CUSTOMER'S SYSTEM OVERFLOW ELEV. AND /OR REQUIRED HEAD**843 CUSTOMER'S STORAGE FACILITY Future elevated storage tank DWC BENCHMARK LOCATION & ELEVATION HYDRAULIC DATA DWC Hydraulic Grade 10 ft. Flow Rate @ — Downstream of Customer's Facility DWC Meter Station MGD USGS Datum 2000 Ave. Day 0.075 907 2000 Max. Day 0.128 918 2010 Ave. Day 0.900 **** 911 2010 Max. Day 1.530 924 2020 Ave. Day 1.200 **** 908 2020 Max. Day 2.040 918 2020 Peak * ** 3.600 913 * DWC design minimum hydraulic grade will fluctuate approx. ± 10 feet depending upon Commission's elevated storage water elevation. '* It is customer's responsibility to verify the system overflow elevation or required head. ' ** 3 X 2020 average day flow or 1500 GPM minimum. ' * ** Includes service to customers currently receiving water from the Village of Oak Brook. This volume is approximately 0.700 MGD for year 2010 and 0-88§P1 for year 2020 Con3trucdon%Fomw%MS -178 METER STATION WATER OEUVERY OATA.doc ' 0 6� 0 EXHIBIT B FORM OF METERING STATION EASEMENT AGREEMENT _22_ DU PAGE WATER COMMISSION METERING STATION EASEMENT AGREEMENT (Oakbrook Terrace MS -17b) PERMANENT REAL ESTATE TAX INDEX NO. - - - Prepared by and Mail to: Burke, Weaver, Prell, Holland & Knight 55 West Monroe Suite 800 Chicago, Illinois 60603 (312) 263 -3600 METERING STATION EASEMENT AGREEMENT (Oakbrook Terrace MS -17b) THIS EASEMENT AGREEMENT, made and entered into this day of , 200_, by and between the DU PAGE WATER COMMISSION, a i county water commission created and existing under the laws of the State of Illinois (the "Commission ") and the CITY OF OAKBROOK TERRACE, a municipal corporation created and existing under the laws of the State of Illinois and a customer of the Commission (the "Customer "), WITNESSETH: WHEREAS, the Commission and the Customer have entered into a certain Water Purchase and Sale Contract for the Oakbrook Terrace Unit System, dated as of December 1, 1997 '(the "Subsequent Customer Contract "), as supplemented by a certain Intergovernmental Agreement Concerning the Construction and Operation of a Joint Facility and Interim and Emergency Water Deliveries, dated as of , 200 (the "Joint Facility Agreement "); and WHEREAS, the Joint Facility Agreement provides that the Commission is to furnish, install, own, operate, maintain, and repair certain equipment and devices, together with certain structures and portions of its water distribution main, including underground feeder pipe lines and related equipment, for properly conveying and measuring the quantity of Lake Michigan water delivered by the Commission to the Customer at the additional connection point provided for under the Joint Facility Agreement (collectively referred to as the "Metering Station "); and -1- WHEREAS, the Joint Facility Agreement provides that the Metering Station is to be located at ;a site selected and provided by the Customer, subject to review and approval by the Commission; and WHEREAS, the Customer has selected the site legally described in Exhibit 1 attached hereto and by this reference incorporated herein and made a part hereof (the "Metering Station Easement Premises ") for the location of the Metering Station as generally depicted in, Exhibit 2 attached hereto and by this reference incorporated herein and made a part hereof; and WHEREAS, the Commission has reviewed the Metering Station Easement Premises and approved the same for the location of the Metering Station; and WHEREAS, the Commission has submitted to the Customer for review the drawings and specifications for the Metering Station; and WHEREAS, the Commission and the Customer desire to enter into "this Easement Agreement) in order to provide the Commission with a sufficient property interest in the Metering Station Easement Premises to fulfill the provisions and purpose of the Subsequent Customer Contract, as supplemented by the Joint Facility Agreement; and WHEREAS, the Commission has duly adopted its Ordinance No. O 0_, being j "An Ordinance Requesting the Intergovernmental Transfer of Easement Rights for the Oakbrook Terrace Metering Station MS -17b Site and Authorizing the Execution of the Oakbrook Terrace Metering Station Easement Agreement," pursuant to the Local Government Property Transfer Act, 50 ILCS 605/0.01 et seg.; and WHEREAS, the Customer has duly adopted its Resolution No. , being "A Resolution Approving the Intergovernmental Transfer of Easement Rights to the DuPage IPA Water Commission," pursuant to the Local Government Property Transfer Act, 50 ILCS 605/0.01 et sey.; NOW, THEREFORE in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in the exercise of their powers and authority under the intergovernmental cooperation provisions of Article VII, Section 10 of the Illinois Constitution of 1970 and the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seg., and other applicable authority, the Commission and the Customer hereby agree as follows: 1. The foregoing recitals are hereby incorporated herein as substantive provisions of this Easement Agreement. 2. The Customer hereby grants, conveys, warrants, and dedicates to the Commission, its successors and assigns, a perpetual easement to construct, furnish, install, own, operate, maintain, test, inspect, remove, repair, and replace the Metering Station at, in, under, and upon the Metering Station Easement Premises, together with all reasonable rights of ingress and egress along or across any adjoining lands of, or under the jurisdiction and control of, the Customer. [The Customer hereby further grants, conveys, warrants, and dedicates to the Commission, its successors and assigns, a perpetual access easement upon, along, and across the real property legally described in Exhibit 3 attached hereto and by this reference incorporated herein and made a part hereof (the "Access Easement Premises').] 3. The Metering Station shall be not located, constructed, or maintained in any manner not in substantial conformity with Exhibit 2 without the express consent of the Customer, which consent shall not be unreasonably withheld. &I [4. The Customer hereby further grants to the Commission a temporary construction easement for the installation of the Metering Station upon, along, and across the real property legally described in Exhibit 4 attached hereto and by this reference incorporated herein and made a part hereof (the "Subject Property'). Said temporary construction easement shall be used by the Commission only during periods of actual installation activity and for any necessary restoration of the Metering Station Easement Premises.] WSJ. The Commission shall exercise the easement rights hereby granted with due care, and shall not unreasonably interfere with, damage, or harm any Customer property located upon the Subject Property. After construction of the Metering Station, the Metering Station Easement Premises shall be restored in accordance with the drawings and specifications for the Metering Station. The Customer hereby reserves the right to use the Metering Station Easement Premises, the Access Easement Premises,] and its adjacent property in any manner that will not prevent or interfere in any way with the exercise by the Commission of the rights granted hereunder; provided, however, that the Customer shall not in any manner disturb, damage, destroy, injure, obstruct, or permit to be obstructed the Metering Station Easement Premises [or the Access Easement Premises] without the express prior written consent of the Commission, nor shall the Customer permanently or temporarily improve, damage, or obstruct the Metering Station Easement Premises for the Access Easement Premises] in any manner that would impair the exercise by the Commission of the rights hereby granted. in [8]. The Customer agrees to indemnify and defend the Commission with respect to any and all claims or damages to persons or property which may arise directly from the negligence of the Customer, or its agents or employees, in performing any work on the Metering Station Easement Premises j, the Access Easement Premises, and the Subject Property] in conjunction with its rights pursuant to Paragraph 7 hereof, and, except as otherwise provided in the Joint Facility Agreement, the Commission agrees to indemnify and defend the Customer with respect to any and all claims of damages to persons or property which may arise directly from the negligence of the Commission, or its agents or employees, in performing any work on the Metering Station Easement Premises j, the Access Easement Premises, and the Subject Property] in conjunction with its rights pursuant to Paragraphs 2, [4, 5, and 6] hereof. The Customer shall provide to the Commission, and the Commission shall provide to the Customer, a certificate of insurance or proof of self- insurance coverage as evidence of its continuing ability to meet the obligation established in this Paragraph, and both shall maintain such coverage at all times. [9]. This Easement Agreement shall constitute and stand in the place of all Customer permits required by the Commission or its contractor to construct, furnish, install, own, operate, maintain, test, inspect, repair, remove, or replace the Metering Station at, in, under, and upon the Metering Station Easement Premises, and the Customer hereby agrees to execute any and all additional documents, approvals, waivers, or consents, if any, that may be reasonably necessary for the Commission to secure any permits required from any county, state, or federal agency for or in connection with constructing, furnishing, installing, owning, operating, maintaining, testing, inspecting, repairing, removing, or replacing the Metering Station. -5- Commission fails to remove the Metering Station, as aforesaid, the Customer may take title to the Metering Station. [11]. All rights, title, and privileges herein granted, including all benefits and burdens, ishall run with the land and shall be binding upon and inure to the benefit of the parties hereto and their respective grantees, successors, assigns, and legal representatives. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their proper representatives duly authorized to execute the same. DUPAGE WATER COMMISSION ATTEST: ATTEST: City Clerk c 0 In General Manager CITY OF OAKBROOK TERRACE Mayor FXHIRIT 1 LEGAL DESCRIPTION OF THE METERING STATION EASEMENT PREMISES [TO BE SUPPLIED BY OAKBROOK TERRACE] EXHIBIT 2 PLANS FOR THE LOCATION OF THE METERING STATION W D a( c z z 0 v . z a 3 LINCOLN AVENUE J ct 0 C L f r h a J 1 I a / N Z a r / E)osnwc t Df CLM43 1 09ED 1! 1 EAQWiT I 1 N oI ,d` �` rTEnFnY VAdV[ l AMT wA 1tbLUO y �� CONNECT M EXMTINC DMt 0 vnaPmo out GLOW -OFr vKK rrn 12'WK T VWTVP� vwovo9EO a c rET ftc XE 94(c7 Q FOR OCTAL /7 STATI0N/VRES9JR( AOa79TMD PROPOSED IS EASEMENT rd STAIM T/CDNG FEMRAATiv+ CLMO O R() �` EXHIBIT 3 LEGAL DESCRIPTION OF THE ACCESS EASEMENT PREMISES [TO BE SUPPLIED BY OAKBROOK TERRACE - -IF NECESSARY] EXHIBIT 4 LEGAL DESCRIPTION OF THE SUBJECT PROPERTY [TO BE SUPPLIED BY OAKBROOK TERRACE - -IF NECESSARY] STATE OF ILLINOIS ) ) SS COUNTY OF DU PAGE ) I, , a Notary Public in and for said County, in the State aforesaid, do hereby certify that James J. Holzwart, personally known to me to be the General Manager of the DuPage Water Commission, and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before men this day in person and acknowledged that he signed, sealed, and delivered said instrument as his free and voluntary act, and as the free and voluntary act of said Commission, for the uses and purposes therein set forth. Given under my hand and official seal this day of , 200_. Notary Public My Commission Expires: