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R-1132 - 10/25/2011 - DU PAGE - Resolutions ExhibitsRESOLUTION PW- 0016 -11 AN INTERGOVERNMENTAL AGREEMENT PROVIDING FOR THE SALE OF WATER BY THE VILLAGE OF OAK BROOK, ILLINOIS TO THE COUNTY OF DU PAGE WHEREAS, Article 7, Section 10 of the 1970 Constitution of the State of Illinois authorizes units of local government, including municipalities and counties, to contract or otherwise associate among themselves, and to exercise, combine or transfer any power or function in any manner not prohibited by law or by ordinance; and WHEREAS, the same section further permits units of local government, including municipalities and counties, to associate with individuals, associations and corporations in any manner not prohibited by law or by ordinance; and WHEREAS, pursuant to authority granted by the Illinois General Assembly in paragraph 515-15001, et seq. of Chapter 55 of the Illinois Compiled Statutes, (55 ILCS 515- 15001, et seq., the County of DuPage ( "County ") owns, operates and extends water supply and distribution systems to several areas within the County; and WHEREAS, pursuant to authority granted by the Illinois General Assembly in Paragraph 5/11 -125 -1 et seq. of Chapter 65 of the Illinois Compiled Statutes, (65 ILCS 5/11- 125 -1, et sec.), the Village of Oak Brook ( "Village ") owns and operates water supply and distribution systems within and without its municipal boundaries (the "Oak Brook Water System "); and WHEREAS, the County is seeking to establish and operate its own potable water distribution system to service both incorporated and unincorporated areas of York Township, Illinois (the "York Township Water System "), pursuant to its statutory authority; and WHEREAS, the County has acquired a small well - supplied water system serving several businesses, (the "Renaissance System "), which adjoins the Oak Brook System; and WHEREAS, the County intends to convert the Renaissance System from its current well water supply to a Lake Michigan water supply and, further, the County intends to incorporate the Renaissance System into the proposed York Township Water System; and WHEREAS, the County anticipates that it may take up to two years to construct the York Township Water System infrastructure necessary to provide a Lake Michigan water supply to the Renaissance System service area; and WHEREAS, the County desires to purchase potable water from the Village to be used by customers of the Renaissance System during the construction of the York Township Water System; and WHEREAS, the Village desires to sell potable water to the County to be used by customers of the Renaissance System during the construction of the York Township Water System; and WHEREAS, this Intergovernmental Agreement is contingent upon the County acquiring all necessary land rights to construct the necessary infrastructure for the delivery of potable water from the Oak Brook System to the Renaissance System; and WHEREAS, it is the intention of the Village and the County to continue discussions and engineering analysis regarding the potential permanent transfer of certain Oak Brook Water System components and connected properties to the County after the York Township Water System becomes operational; and WHEREAS, each of the Parties has determined that it is in their best interest, and the interests of their respective residents, to consummate the sale of Oak Brook Water System supplied water as hereafter described. WHEREAS, the Public Works Committee of the DuPage County Board has reviewed and approved this Agreement on behalf of the DuPage County Board. NOW, THEREFORE, BE IT RESOLVED by the DuPage County Board that the Intergovernmental Agreement between the County of DuPage and the Village of Oak Brook for the sale of water, which Agreement is attached hereto and made a part hereof, be and is hereby approved; and BE IT FURTHER RESOLVED that the Chairman of the County Board be authorized and directed to execute said Agreement on behalf of the DuPage County Board, and that the Chairman, the Superintendent of Public Works and, or, the their designees or legal counsel, be hereby directed and authorized to execute any applications for regulatory approvals, permits, licenses, or other document necessary or beneficial for the County to carry out the transaction provided for in this Agreement. BE IT FURTHER RESOLVED that the County Clerk be directed to transmit certified copies of this Agreement to the Village of Oak Brook, 1200 Oak Brook Road, Oak Brook, Illinois 60523; Anthony Hayman/State's Attorneys Office Enacted and approved this 8th day of November, 2011 a Wheaton, Illinois. Daniel J. Cronin, Chairman DuPage C ty Board ATTEST: Gary A. KLO, County Clerk AN INTERGOVERNMENTAL AGREEMENT PROVIDING FOR THE THIS AGREEMENT is made and entered into as of the ` day of _, 2011, by and between the COUNTY OF DU PAGE, a body corporate and politic ( "County") and the VILLAGE OF OAK BROOK, an Illinois municipal corporation ( "Village ") (sometimes hereinafter individually referred to as a "PARTY" or collectively referred to as the "PARTIES "). WITNESSETH: WHEREAS, the County is a body corporate and politic, and unit of local government exercising those powers set forth in the Illinois Counties Code, 55 ILCS Act 5; and, WHEREAS, the Village is a statutory municipality incorporated under the provisions of the Illinois Municipal Code; and, WHEREAS, the Village presently owns and operates a potable water distribution system consisting of various facilities and other assets (the "Oak Brook Water System" or "Oak Brook System ") pursuant to its authority as provided for in the Illinois Municipal Code; and, WHEREAS, the County is seeking to establish and operate its own potable water distribution system to service both incorporated and unincorporated areas of York Township, Illinois (the "York Township Water System "), pursuant to its authority as provided for in the Illinois Counties Code 55 ILCS 5/5- 15001, et seq.; and, WHEREAS, the County has acquired a small well - supplied water system that serves the several businesses that are within the geographical boundaries depicted on the map attached hereto as Exhibit A, and are adjacent to the Oak Brook System (the "Renaissance System "); and WHEREAS, the County intends to convert the Renaissance System from its current well water supply to a Lake Michigan water supply and, further, the County intends to incorporate the Renaissance System into the proposed York Township Water System; and WHEREAS, the County anticipates that it may take up to two years to construct the York Township Water System infrastructure necessary to provide a Lake Michigan water supply to the Renaissance System service area; and WHEREAS, the County desires to purchase potable water from the Village to be used by customers of the Renaissance System during the construction of the York Township Water System; and WHEREAS, the Village desires to sell potable water to the County to be used by customers of the Renaissance System during the construction of the York Township Water System; and WHEREAS, this Intergovernmental Agreement is contingent upon the County acquiring all necessary land rights to construct the necessary infrastructure for the delivery of potable water from the Oak Brook System to the Renaissance System; and WHEREAS, it is the intentions of the Village and the County to continue discussions and engineering analysis regarding the potential long -term transfer of certain out -of- Village (a/k/a "out -of- District ") water service customers to the County when the York Township Water System is constructed; and WHEREAS, each of the Parties has the authority to enter into this Agreement pursuant to the Intergovernmental Cooperation Act 5, ILCS Act 220 and Article VII Section 10 of the Constitution of the State of Illinois 1970; and, WHEREAS, each of the Parties has determined that it is in their best interest, and the interests of their respective residents, to consummate the sale of the Oak Brook System water as hereafter described. NOW, THEREFORE, for and in consideration of the foregoing recitals and the mutual covenants hereinafter contained, the adequacy and sufficiency of which the Parties hereby stipulate, the Parties agree as follows: Section 1. Preamble. The foregoing recitals are by reference incorporated herein and made a part hereof as if fully set forth herein. Section 2. Obligations of the County A. The County shall obtain all necessary land rights to construct and operate a water main connection (the "Interconnection Main ") between the Oak Brook System and the Renaissance System. This Agreement and the County's obligations are contingent upon the County's acquisition of the above - described property rights. B. Subject to the County acquiring all necessary land rights and permits, the County shall cause a water main connecting the Oak Brook System and the Renaissance System to be designed. The Village shall have the right to review and approve the design of the Interconnection Main, including the inter- connection point between the Systems. Such review shall be completed before the County advertises for bids or requests proposals for the construction of the Interconnection Main. C. Subject to the Village approving the County's design, the County shall cause a water main connecting the Oak Brook System and the Renaissance System to be constructed. The County shall require any contractor(s) performing construction work on the Interconnection Main to indemnify and insure the Village as the Village may request, provided the Village notifies the County of its indemnification and insurance requirements prior to the County's advertisement for bids, or requests for proposals. The Village, or its consultants, shall be permitted reasonable access to the work site, and review of any construction documents, for the purpose of observing the work as it progresses. D. Any Village property or right -of -ways disturbed during the Interconnection Main construction work shall be restored in the manner specified in the approved plans, when applicable. Whenever the plans do not specify a particular restoration condition, the disturbed site shall be restored as close as practicable to the condition that existed prior to the County's disturbance. E. Following completion of the Interconnection Main construction, the County agrees to operate, maintain and keep said Interconnection Main in good working order such that said water main does not adversely affect the Oak Brook System. The County shall operate and maintain the Interconnection Main and Renaissance System in compliance with all applicable Federal and State laws, statutes, codes, regulations and rules, including any Village ordinances and any permit conditions or requirements by the Illinois Environmental Protection Agency. The County will promptly repair all leaks in the Interconnection Main and Renaissance System. F. In the event the Village elects to bill the County directly for water delivered to the Renaissance System, the County shall reimburse the Village for such water, upon receipt of a bill. The County's payment for water service shall be on the same terms, and at the same rates, applicable to out -of- Village (a/k/a "out -of- District ") water service customers. Section 3. Obligations of the Village. A. Within five (5) business days after the completion of the Interconnection Main construction, and the Village's approval of such work, including restoration, the Village shall commence providing potable drinking water through the interconnection point in quantities, pressures, and qualities, sufficient to provide water service to all water service users of the Renaissance System. B. At least five (5) business days prior to the commencement of the Village providing potable drinking water to the Renaissance System, the Village shall select the manner for billing for water delivered to that system. The Village may either: 1) Direct the County to periodically read all Renaissance System water meters, not more frequently than once per month, and to submit all water consumption data collected for that period to the Village. The Village shall then bill the County, in accordance with an agreed upon billing schedule at out -of- Village rates, for bulk water amount consumed by Renaissance System users during that billing period. The County may also bill the Renaissance System users but payment to the Village by the County shall not be affected by the County's collection of water service charges to its Renaissance System users; or, 2) Undertake metering reading within the Renaissance area with Village personnel. The Village would then bill Renaissance System users directly for the water consumed by each user for each billing period, treating such users as customers of the Oak Brook System. The Village shall afford Renaissance System users the same terms and water rates applicable to out -of- Village water service customers. In the event the Village accepts this option, the Village shall be solely responsible for collecting water service charges issued to Renaissance System users provided, however, that the County shall, at no charge to the Village, shut -off water service to any delinquent user in accordance with state law and Village ordinances and procedures. The Village shall provide the County, upon request, with all billing records pertaining to such delinquency including copies of shut -off notices issued to the delinquent user. The County shall keep such billing records confidential, as appropriate and as permitted by law. Upon direction from the Village, the County shall reconnect water service by the close of the following business day. Section 4. Term of Water Supply. A. The Village shall provide water for an initial term of up to two years following the commencement of water flow from the Oak Brook System to the Renaissance System. The Village acknowledges that: i) the County could have the York Township Water System operational much sooner than two years and, if so, would set a "Termination Date," as hereafter defined, before the second anniversary of this Agreement, or the project may run longer than two (2) years thereby requiring an extension of this Agreement; and ii) once the Village's water supply to the Renaissance System is commenced, that water supply may not be terminated until the County's York Township Water System has been completed and capable of providing an adequate water supply, at an acceptable pressure, to the Renaissance System, or that the County has secured an alternative water supply and, accordingly, the Village shall not unilaterally terminate such service without first giving the County at least six (6) months notice. However, in the event of the County's non - payment under the payment option set forth in Paragraph 3.13.1, above, the Village may terminate its water supply after giving the County thirty (30) day and ninety (90) day notices of any "past due" bill. The Village may, though, in an emergency situation and without notice, temporarily terminate water supply in order to mitigate water loss, provided that such water supply shall promptly resume upon completion of any necessary repairs. The water supply period shall be extended automatically, and without further action necessary by either Party, for successive one -year terms up until the date hereafter identified as the "Termination Date." B. The Termination Date shall be the date on which the County is capable of providing an adequate water supply, at an acceptable pressure, to the Renaissance System by means of the York Township Water System, or some other substitute method, or in the event of any contingency identified herein. The County shall notify the Village quarterly of the work progress of the York Township Water System infrastructure construction and, further, shall give the Village sixty (60) day notice when the Termination Date has been determined. The County and Village shall coordinate the Termination Date with the end of a Village billing cycle unless the Village requests otherwise. C. Prior to the occurrence of any work which physically involves the Oak Brook System, in the event of any reversion of ownership of the Renaissance System to its prior owner, OBT Service, Inc, this Agreement shall be immediately null and void at the Village's election and without requiring notice from the County. D. The County shall not expand the Renaissance System to serve additional residences or businesses during the term of this Agreement without obtaining the prior the written approval of the Village. Section 5. General Terms. A. Cooperation and Further Agreements. The parties 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 in this Agreement. Whenever the consent, or approval, or any other act, by any Party is requested by the other Party, such consent, or approval, or other act shall not be unreasonably withheld, delayed, denied or conditioned. B. Notices. All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed received by the addressee thereof when delivered in person on a business day at the address set forth below or on the third business day after being deposited in any main or branch United States post office, for delivery at the address set forth below by properly addressed, postage prepaid, certified or registered mail, return receipt requested. Notices and communications shall be addressed to, and delivered at the address of the notice recipients for each party specified on their respective signature pages. The foregoing shall not be deemed to preclude the use of other non -oral means of notification or to invalidate any notice properly given by any such other non -oral means. By notice complying with the requirements of this Section, the parties each shall have the right to change the address or addressee or both for all future notices to it, but no notice of a change of address shall be effective until actually received. C. Entire Agreement. There are no other understandings or agreements, oral or written, by or between the Village and the County with respect thereto, nor was the making and execution of this Agreement induced by any representation, statement, warranty, agreement, or action other than those expressed or explicitly referenced in this Agreement or in the Implementing Agreement. D. No Waiver. No course of dealing or failure of any party to enforce strictly any term, right, or condition of this Agreement shall be construed as a waiver of such term, right, or condition. No express waiver of any term, right, or condition of this Agreement shall operate as a waiver of any other term, right, or condition. E. 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 any 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. F. Indemnification. The County shall, indemnify the Village, and its respective officers, members, officials, employees, agents, attorneys, and representatives against, and hold the Village, and its respective officers, members, officials, employees, agents, attorneys, and representatives, harmless from, any and all lawsuits, claims, demands, damages, liabilities, losses, and expenses (including attorneys' fees and administrative expenses), that may be sustained or incurred as a result of or in connection with the County's connection of the Renaissance System to the Oak Brook System or with the performance of, or failure to perform, the Parties' obligations under this Agreement, whether or not due or claimed to be due in whole or in part to the active, passive, or concurrent negligence or willful misconduct of the Village, but not including lawsuits, claims, demands, damages, liabilities, losses, and expenses (including attorneys' fees and administrative expenses) sustained or incurred solely as a result of the negligence or willful misconduct of the Village. The Parties agree that, notwithstanding the language above, neither Party waives, by these indemnity requirements, any defenses or protections under the Local Government and Governmental Employees Tort Liability Act (745 ILCS 10 /1 et seq.), or otherwise available to it, or available to the other Party, under the law and that there shall be no obligation to indemnify when either Party has a defense or protection to a claim under the Act or common law. The County's obligations required pursuant to this Section 5.13 shall survive the termination of this Agreement. G. No Admission. Nothing herein shall be deemed or construed to be an admission of liability or of any matter of fact or law by any of the parties to this Agreement. H. Required Actions. No party shall unreasonably delay, deny or withhold any review, notice, consent, approval required by this Agreement. I. Governing Law. This Agreement shall be governed by and construed exclusively under the applicable laws of the State of Illinois, with regard to conflicts of law principles. The venue for resolving any disputes concerning the parties' respective performance, or failure to perform, under this Agreement shall be the judicial circuit court for DuPage County. J. Counterparts. This Agreement may be executed in several counterparts, each 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 of the parties hereto so long as each of the parties hereto has signed one or more of such counterparts. K. Amendments. The parties may modify or amend terms of this Agreement only by a written document duly approved and executed by both parties. L. Conflicting Provisions. In event of a conflict between the terms or conditions or this Agreement and any term or condition found in any exhibit or attachment, the terms and conditions of this Agreement shall prevail. M. Severability. In the event, any provision of this Agreement is held to be unenforceable or invalid for any reason, the Parties shall in good faith attempt to amend the Agreement to allow the original intent of the Parties to be carried out and if that cannot be accomplished, then either Party may terminate the Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers, pursuant to proper authorization of their respective governing bodies, as of the date first stated above. Village: VILLA E OF OAK BROOK, An I nois municipal corporation DR. GOPAL G. LALMALANI PRESIDENT ATTEST: r CHARLOTTE K. PRUSS, VILLAGE CLERK County: COUNTY OFD GE, a body mio�-4� DANIEL J. CRONIN COUNTY BOARD CHAIRMAN d GARY A. KDQG, COUNTY