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R-748 - 05/23/2000 - AGREEMENT - Resolutions ExhibitsAN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF OAKBROOK TERRACE, THE VILLAGE OF OAK BROOK AND LINCOLN WHEREAS, the City of Oakbrook Terrace ( "City ") has recently begun receiving water from the DuPage Water Commission ( "Commission "), and distributing it to its residents in a portion of the City; and WHEREAS, Lincoln - Oakbrook Terrace I, LLC and Lincoln - Oakbrook Terrace II, LLC ( "Lincoln ") is the owner of land within the City and is currently involved in the construction of two office buildings, and other facilities, and is required by ordinance to purchase water from the City; and WHEREAS, the City has determined that the most expedient manner of serving Lincoln is to construct a Second Connection to the transmission system of the DuPage Water Commission, at a location near the junction of Trans Am Plaza Drive and Illinois Route 56; and WHEREAS, the buildings under construction by Lincoln require a source for construction water, fire flow and regular water usage until such time as the City can complete and make operational the construction of the Second Connection point, pressure adjusting station, and feeder mains ( "Second Connection ") to furnish water to the City's system; and WHEREAS, the Village of Oak Brook ( "Village ") is also a member of the DuPage Water Commission and owns a water transmission line adjacent to Lincoln, which is adequate in size to provide, on a temporary basis, enough water to allow the City to supply Lincoln; and WHEREAS, the Village and the City have previously entered into an intergovernmental agreement for the installation of an interconnect between the City's water supply system and the Village's water supply system, pursuant to an agreement dated July 15, 1998, and the First Interconnection ( "First Interconnection ") has been completed and approved by the City and the Village and is operational, and the City and the Village are agreeable to the installation of a Second Interconnection ( "Second Interconnection ") to be used to temporarily furnish Lincoln's domestic water and fire protection water; and WHEREAS, the existing water system installed by the City possesses adequate capacity to temporarily and as requested by the Village, through the First Interconnection, provide water to the Village's water system equal to the full water requirement of Lincoln; and WHEREAS, based upon the promise by the City to provide, upon request, supplementary water to the system of the Village, through the First Interconnection, the Village is willing to provide water temporarily to Lincoln through the Second Interconnection; and WHEREAS, the parties agree that, upon the completion of the City's Second Connection, Lincoln will receive its water supply only by means of the Second Connection, pursuant to the City's ordinance, and the Second Interconnection shall continue only pursuant to an agreement, typical between adjoining communities providing for emergency interconnection; and WHEREAS, the City is willing to provide water into the Village's water system, through the First Interconnection, so long as its ability to do so shall not require the addition or expansion of its existing system and so long as it is able to provide adequate water supplies to all of its own customers, including Lincoln, subject to the termination provisions and other conditions set forth in this Agreement; and WHEREAS, units of local government and private entities are permitted under the Constitution and statutes of the State of Illinois to enter intergovernmental agreements in any manner not prohibited by law or by ordinance; 2 NOW, THEREFORE, is it agreed among the City of Oakbrook Terrace, the Village of Oak Brook and Lincoln in accordance with the authority established within the Constitution and statutes of the State of Illinois, and in consideration of the mutual promises set forth in this Agreement, as follows: 1. The provisions of the whereas clauses are added to and made a part of this Agreement. 2. The Village will temporarily provide potable Lake Michigan water to the City's water system abutting Lincoln's properties legally described in Exhibit A and made a part of this Agreement through the Second Interconnection. The quantity of water to be provided shall be the full water needs of Lincoln, but shall be strictly subject to such other conditions and limitations as are set forth in this Agreement. 3. Lincoln will pay the construction cost of the Second Interconnection, subject to any recapture agreement with the City. The Second Interconnection shall be designed to conform to the ordinances of the City and the Village, and shall serve as the Second Interconnection between the water systems of the two municipalities and shall be subject to whatever emergency interconnect agreement shall be in place from time -to -time, and the regulations of the Commission. Once the Second Interconnection is constructed, the City shall sell water to Lincoln and shall bill Lincoln at the rate charged its other commercial customers. The water shall be metered and Lincoln shall comply with all the rules and regulations governing entities which receive water from the City. The parties shall cooperate to take action aimed at expediting the construction process. 4. Immediately upon the execution of this Agreement, the City shall proceed in a reasonably timely manner and in accordance with another written agreement with Lincoln to cause 3 the construction of and to place into service a Second Connection to the Commission transmission system in the vicinity of Lincoln, which, upon its completion, shall be adequate in size to fully service Lincoln and other nearby undeveloped properties. When the Second Connection is completed and Lincoln is receiving water by means of the Second Connection, the Village's obligation to allow its system to serve as a conduit for water to be served to Lincoln shall henceforth cease and Lincoln shall purchase all of its water needs by means of the Second Connection from the City. 5. Lincoln specifically acknowledges that the delivery of water to the City's Water System by the Village is granted as an accommodation and the Village does not intend nor shall it be obligated to provide water to the City's Water System or the City's customers, including Lincoln, other than under the terms of this Agreement. The use of the Village's system as a conduit for water, or its decision to allow the City to serve Lincoln by drawing water from the Village's system shall be strictly conditioned upon the Village's ability to receive into its system through the First Interconnection, and at its request, an amount of water at least equal to that being delivered to the City's Water System through the Second Interconnection. The parties acknowledge that there are alternative water sources, including well water, available to Lincoln. In the event that the City is unable for any reason or is unwilling to deliver into the Village's water system through the First Interconnection an amount of water which is at least equal to the amount of water which is being delivered into the City's Water System at the Second Interconnection, the Village may, upon 30 days' written notice to Lincoln and the City, cease to continue delivery of water to the City's system through the Second Interconnection; in such event Lincoln and the City hereby waive any claim for damages of any kind against the Village and its officers, employees and independent contractors 4 associated with the partial or full water shut off by the Village. The City and Lincoln, and each of them, shall, and do hereby agree to pay all expenses, including legal fees and administrative expenses, incurred by the Village in defending itself with regard to any and all of the matters mentioned in this paragraph 5. As an additional inducement to the Village to enter into this Agreement, Lincoln and the City, and each of them, hereby release the Village from, agrees that the Village shall not be liable for, and agrees to indemnify and hold the Village harmless from: (a) any damages resulting from either the failure to supply water to the City's system through the Second Interconnection or for any interruptions of, limitation on, or delay in, the delivery of water to the City's water system through the Second Interconnection, resulting from the City's cessation of, interruption(s) of, limitation on, or delay in the delivery of, water to the Village's system through the First Interconnection; and (b) 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, any failure by the Village either to comply with any of the terms or conditions of this Agreement or to provide water to the City's water system through the Second Interconnection, resulting from the City's cessation of, interruption(s) of, limitation on, or delay in the delivery of, water to the Village's system through the First Interconnection. 6. During such time as the City is providing water to Lincoln by means of the Second Interconnection, the City shall use its best efforts to provide, upon the request of the Village, water in at least that equal amount to the Village through the First Interconnection; provided, however, that the City shall not be required to install any new equipment necessary to allow it to provide water to the Village. It is the belief of the parties that the First Interconnection is adequate to permit, on a regular basis, excess City water capacity to be delivered, on request, to the Village. If any equipment 5 is necessary to allow the City to serve the Village, in amounts required by Lincoln, the installation and cost of that equipment shall be the responsibility of Lincoln. The cost of such equipment shall not exceed $10,000. The City shall at all times operate its existing system in a proper and efficient manner so as to provide as it may be requested, at least as much water into the Village system as the City's system shall receive by means of the Second Interconnection. The water being furnished to the Village through the First Interconnection shall be metered and the Village shall pay the Commission for such water used the same amount it pays per thousand gallons to the Commission. 7. This Agreement should be understood and interpreted in light of the parties' expectation that the Second Connection will be installed and operational within approximately one (1) year from the date of this Agreement. However, the parties acknowledge that unforeseen conditions, labor or material shortages, strikes, or construction difficulties may delay the completion of this connection and Lincoln shall be entitled to obtain Lincoln's water requirements through the Second Interconnection during any time as the City is able to supply at least that quantity of water to the Village through the First Interconnection. 8. The parties acknowledge that they have received a copy of, read and approved, a certain agreement entitled "Intergovernmental Agreement Concerning the Construction and Operation of Joint Facility and Interim and Emergency Water Deliveries" ( "DWC Agreement ") by and between the DuPage Water Commission, the City and the Village, which was approved by the DuPage Water Commission by Ordinance No. 0 -2 -00 on March 9, 2000. Notwithstanding the fact that Lincoln is not a party to the DWC Agreement, if there is any conflict or inconsistency between the terms of this Agreement and the terms of the DWC Agreement, the parties agree that the terms of the DWC Agreement shall control. The parties agree and acknowledge that to the best of their 2 4 belief and opinion, this Agreement is consistent with and is not in conflict with, the provisions of the DWC Agreement. If, however, a determination is made that the provisions of this Agreement are in conflict or inconsistent with the terms of the DWC Agreement, then the parties to this Agreement shall use their best efforts to undertake all such actions, including such amendments, modifications or revisions of this Agreement as may be necessary to continue this Agreement in full force and effect and to effectuate the intent of the parties in the execution of this Agreement. 9. Mutual Assistance. The parties agree to take such actions, including execution and delivery of such documents, instruments, petitions and certifications, and in the case of each municipality, the adoption of such ordinances and resolutions, as may be necessary or appropriate, from time to time, to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent, including undertaking such actions or refraining from taking such actions as may be consistent with law to assure and to effectuate the purposes and intents of this Agreement, the DWC Agreement, and any agreement between the City and Lincoln. DATED: June 13 , 2000 CITY OF OAKBROO TE E, a muni i L c por ti n lu t. Atte t: City Clerk VILLAGE OF OAK BROOK, a municipal corporation 7 LINCOLN - OAKBROOK TERRACE II -LLC, a Delaware limited liability company By: LINCOLN MANAGING MEMBER I, Inc. a Texas Corporation, its Managing Member By: Name: John Gri ssim Title: E.V.P. H \Shannon \Lincoln igag revised page 8 6 9 00 doc g LINCOLN OAKBROOK TERRACE I -LLC, a Delaware limited liability company By: LINCOLN MANAGING MEMBER I, Inc. a Texas Corporation, its Managing Member By: Name: John Grissim Title: E.Y.P. EXHIBIT A LOTS 1 AND 4 IN LINCOLN CENTRE UNIT NO. 1, BEING A SUBDIVISION IN A PART OF THE SOUTHEAST QUARTER OF SECTION 21 AND A PART OF THE NORTHEAST QUARTER OF SECTION 28 BOTH IN TOWNSHIP 39 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED MAY 192 1986 AS DOCUMENT R86 -47717 IN DUPAGE COUNTY, ILLINOIS.