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R-1205 - 10/23/2012 - WATER-IGA - Resolutions Supporting Documents................. ITEM 6.G.2) yyta �'PA '1: Y,►1t•�i "�a�,• lip � 1 � u AGENDA ITEM Regular Board of Trustees Meeting of October 23, 2012 SUBJECT: INTERGOVERNMENTAL AGREEMENT BETWEEN THE DUPAGE WATER COMMISSION, THE COUNTY OF DUPAGE AND THE VILLAGE OF OAK BROOK CONCERNING THE CONSTRUCTION AND OPERATION OF A CONNECTION FACILITY FOR INTERIM AND EMERGENCY WATER DELIVERIES FROM: Mike Hullihan P.E., Village Engineer BUDGET SOURCE/BUDGET IMPACT: None RECOMMENDED MOTION: I move that the Village Board approve the agreement entitled "An Intergovernmental Agreement Providing for the Sale of Water by the Village of Oak Brook to the County of Du Page." Background/History: Du Page County has acquired a small well - supplied water system which serves several businesses. It is located just north of Butterfield Road in the vicinity of Trans Am Plaza. The County intends to operate this system as part of the York Township Water System, currently under design. Due to the state of disrepair of the wells and pumps currently supplying the system, the County wishes to purchase water from the Village to supply water until the York Township system is completed. A proposed intergovernmental agreement (IGA) is attached. Analysis: The system in question primarily serves three commercial buildings. The service does not include fire protection systems and is expected to draw around 3,000 gallons per day. This is well within the Village system's capability. The IGA proposes a reimbursement rate from the County of $2.73 per thousand gallons. This rate is equal to the Village of Oak Brook out of Village rate minus the Du Page Water Commission water supply rate. The metered usage to the County system will be iN P subtracted from the gross Oak Brook metered usage by the Du Page Water Commission (DWC) before we are billed. DWC will then bill this amount of water at the wholesale rate to Du Page County. The Board approved an Intergovernmental Agreement (IGA) with Du Page County with essentially the same terms on October 25, 2011. The Du Page Water Commission has requested that they become a party to the IGA so it conforms to our terms of sale agreement. Recommendation: I recommend that you approve the IGA to provide for temporary sale of water to the County of Du Page. RESOLUTION 2012 - H2O- IGA- DWC- DUP -EX -R -1205 A RESOLUTION APPROVING AND AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK, THE DUPAGE WATER COMMISSION AND THE COUNTY OF DUPAGE WHEREAS, the Village of Oak Brook ( "Village") is an Illinois municipal corporation; and WHEREAS, Article VII, Section 10 of the 1970 Constitution of the State of Illinois authorizes units of local government to contract or otherwise associate among themselves "to obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law or ordinance," as well as to use their revenues, credit and other resources for intergovernmental activities; and WHEREAS, the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq., also authorizes the joint use and enjoyment of the powers, privileges, functions and authority of local governments; and WHEREAS, the DuPage Water Commission ( "Commission ") operates a water system ("Commission Waterworks System") that supplies various municipalities and other customers in DuPage County with water drawn from Lake Michigan; and WHEREAS, the County of DuPage ( "County') is constructing a water distribution system, commonly known as the York Township Facility ( "County Water System "), which will be supplied with water by the Commission Waterworks System; and WHEREAS, the connection between the County Water System and the Commission Waterworks System ( "Connection ") is expected to be completed by June 1, 2013; and WHEREAS, the County desires to serve existing properties within the County Water System that cannot be adequately served before the Connection is operational ( "Existing Properties "); and WHEREAS, the Village owns and operates a water distribution system ( "Village Water System ") that is supplied by the Commission; and WHEREAS, the Village Water System is capable of transmitting and delivering water, purchased by the County from the Commission, to the County Water System to serve the Existing Properties; and WHEREAS, the Village is willing to transmit and deliver water, purchased by the County from the Commission to the County Water System, until the Connection is operational ( "Interim Service"), so long as such delivery of water does not impair the Village's ability to serve its own customers; and WHEREAS, the Village, Commission and County desire to enter into a formal agreement to govern the terms of Interim Service and future emergency service ("Agreement'), attached hereto as Exhibit A; and WHEREAS, the President and Board of Trustees have determined that it is in the best interests of the Village to enter into the Agreement, in a final form as approved by the Village Attorney; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Resolution 2012 - H2O- IGA -DWC-DUP -EX -R -1205 IGA with DWC and DuPage County Page 2 of 3 Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Agreement by and between the Village, Commission and County in a form acceptable to the Village Manager and the Village Attorney. Section 3: Authorization and Execution of the Agreement. The Village Manager and Village Clerk shall be, and hereby are, authorized to execute the final Agreement on behalf of the Village. Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and approval in the manner provided by law. Ayes: APPROVED THIS 23d day of October, 2012 Gopal G. Lalmalani Village President PASSED THIS 23d day of October, 2012 ATTEST: Charlotte K. Pruss Village Clerk Resolution 2012 - H2O- IGA -DWC- OUP -EX -R -1205 IGA with DWC and DuPage County Page 3 of 3 EXHIBIT A [Intergovernmental Agreement] T1 fib r, 'rh'13- �Tm ;t >• DuPage County DANIEL J. CRONIN DUPAGE COUNTY DEPARTMENT OF PUBLIC WORKS COUNTY BOARD CHAIRMAN Public Works Division Tel: (630) 407 -6800 Fax: (630) 407 -6701 May 28, 2013 John Spatz General Manager DuPage Water Commission 600 East Butterfield Road Elmhurst, Illinois 60126 Mike Hullihan Public Works Director Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60523 RE: Three Parry Intergovernmental Agreement for Construction and Operation of a Connection Facility Dear Mr. Spatz and Mr. Hullihan: Attached please final an original executed Agreement between the County of DuPage, Water Commission, and the Village of Oak Brook concerning the construction and operation of a connection facility for interim and emergency water deliveries. Please let me know if you should have any questions. Respectfully, . Nicholas W. Kottmeyer, P.E. Superintendent N WK:amb JACK T. KNUEPFER CENTER 421 N. COUNTY FARM RD WHEATON IL 60187 INTERGOVERNMENTAL AGREEMENT BETWEEN THE DUPAGE WATER COMMISSION, THE COUNTY OF DUPAGE AND THE VILLAGE OF OAK BROOK CONCERNING THE CONSTRUCTION AND OPERATION OF A CONNECTION FACILITY FOR INTERIM AND EMERGENCY WATER DELIVERIES INTERGOVERNMENTAL AGREEMENT BETWEEN THE DUPAGE WATER COMMISSION, THE COUNTY OF DUPAGE AND THE VILLAGE OF OAK BROOK CONCERNING THE CONSTRUCTION AND OPERATION OF A CONNECTION FACILITY FOR INTERIM AND EMERGENCY WATER DELIVERIES THIS AGREEMENT, made and entered into this day of 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 COUNTY OF DuPAGE, a unit of local government created and existing under the laws of the State of Illinois (the "County "), 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 se . and the Water Commission Act of 1985 (70 ILCS 3720/1 et se . 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 County is constructing a water distribution system, commonly known as the York Township Facility, (the "County Water System "), which system shall be supplied with water by the Commission pursuant to the terms of that certain Water Purchase and Sale Contract for the County Unit System, dated as of the 13th of July, 2006, (the "Subsequent Customer Contract') with the Commission, and which system is to be connected at a single point to the Commission Waterworks System; and 2 WHEREAS, it has been determined in the best interest of the Commission and the County to design and construct this connection as a Joint Facility (the "Joint Facility ") which would include all equipment necessary to accomplish the connection described above; and WHEREAS, the County has entered into a design contract for the Joint Facility where design and construction is anticipated to be completed by June 1, 2013: and WHEREAS, the construction of the Joint Facility, together with certain extensions to the County Water System, will enable the County to serve Existing Properties within the County Water System that currently cannot be adequately served by the existing County Water System (the " Existing Properties "); and WHEREAS, due to declining well water quality the County desires to serve the Existing Properties with Lake Water 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 County Water System is adjacent to the Village Water System and, upon having completed the construction of a new connection between the County Water System and the Village Water System (the "CountyNillage Connection "), at the intersection of 15th Street and Addison Avenue in unincorporated York Township, together with certain extensions to the County Water System, the Village Water System is capable of transmitting and delivering water purchased by the County from the Commission through the Village Water System to the County Water System for service 3 to the Existing Properties; and WHEREAS, the Commission has inspected the County/Village Connection and has found the County/Village Connection to be suitable for the purposes intended; and WHEREAS, the Village is willing to provide such alternate delivery of water to the County 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, the Commission has no objection to the interim service arrangements described above so long as, after the Joint Facility becomes operational, the County/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 County, 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 seg.• and other applicable authority, the Commission, the County, and the Village are authorized to enter into this Agreement; NOW, THEREFORE, it is agreed by, between, and among the Commission, the County, and the Village as follows: 0 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. INTERIM WATER DELIVERIES A. Until such time as the Joint Facility becomes operational, any water transmitted and delivered through the County/Village Connection shall be treated as water purchased by the County 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 County as their interests may appear. B. The County shall furnish, install, and when necessary replace at the County/Village Connection all necessary meters, strainers, and instrumentation for measuring properly the quantity of water delivered through the County/Village Connection. The County shall have all duty, responsibility, and liability to maintain and repair the County/Village Connection facilities including but not limited to the vault structure, access hatches, and all other appurtenances. C. Until such time as the Joint Facility becomes operational, the Commission shall have exclusive access to the County/Village Connection; provided, however, that the County and the Village shall have access to the County/Village Connection at reasonable times as approved by the Commission for purposes of 5 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. D. Until such time as the Joint Facility becomes operational, the Commission shall read the meter at the CountyNillage Connection and the amount of water delivered to the County Water System through the CountyNillage Connection shall be paid to the Commission directly by the County at the rates applicable pursuant to, and in accordance with, the Subsequent Customer Contract. E. 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 County for any reason pursuant to the Subsequent Customer Contract and specifically related to the County, then the Commission may, and shall be entitled to, make or cause the County or the Village to make all necessary and appropriate adjustments to the County/Village Connection, to assure that the appropriate amount of water is delivered to the County during such period of curtailment. G. Until such time as the Joint Facility becomes operational, the rate of withdrawal from the CountyNillage Connection shall not exceed the rate allowed by Subsections 3A and 9M of the Subsequent Customer Contract. H. The County and the Village each do hereby acknowledge and agree that the Commission shall not be liable either to the County or to the Village for, and each of the County 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 the E County/Village Connection. I. The County shall reimburse the Commission for the full actual cost incurred by the Commission in connection with preparation, consideration, and review of this Agreement, including without limitation all legal, engineering, consulting, and administrative fees, costs, and expenses associated therewith. DuPage County shall reimburse the Commission for such fees, costs, and expenses, and payment shall be due within thirty (30) days after receipt of an invoice therefor from the Commission. SECTION 3. PRICES, TERMS, PAYMENT. A. The County shall make all required payments to the Commission in accordance with the terms of the Subsequent Customer Contract. To the extent that such payments depend upon the amount of Lake Water delivered to the County Water System, The County payments to the Commission pursuant to the Subsequent Customer Contract shall be based on readings taken by the Commission of the County/Village Connection Meters. B. Village's Payments to the Commission. The Village shall make all required payments to the Commission in accordance with the terms of the Charter Customer Contract. To the extent that such payments depend on the amount of Lake Water delivered to the Village System, the Village's payments to the Commission pursuant to the Charter Customer Contract shall be based on the difference between the readings taken by the Commission of the Village System Meters and the readings taken by the Commission of the County/Village Connection Meters. If, for any billing period, the measurement of the amount of Lake Water delivered through the County/Village Connection Meters to the County Water System exceeds the 7 measurement of the amount of Lake Water delivered through the Village System Meters, then the difference between such readings shall be deemed to be zero. C. The County Payments to the Village. During the first twelve (12) months from the date The County begins accepting water from the Village, The County shall pay to the Village, for the water transmission, delivery and storage services provided under this Agreement, the amount of $2.73 (two dollars and seventy -three cents) per thousand gallons of water, or fraction thereof, metered by the County/Village Connection Meters (the "wheeling rate "). The Village shall invoice The County monthly for such services, and payment shall be due within thirty (30) days after invoicing by the Village. The wheeling rate will be adjusted in the same proportion that the Village's water rate to its customer base increases. If the Village can demonstrate to The County that the Village's actual proportionate increase in a specific cost of providing the use of the Village system to The County is greater than the proportionate increase for the same specific cost used in determining the Village's water rate to its retail customers, the Village may propose in writing a higher rate increase. This proposed rate increase shall not become effective unless mutually agreed to by both. The Village agrees to give The County sixty (60) days written notice prior to any rate change going into effect. If The County desires to dispute any payment, or part thereof, due or claimed to be due under this Subsection 3C, The County shall nevertheless pay the full amount of any such payment when due and include with such payment written notification to the Village that charges are disputed, the grounds for dispute, and the amount in dispute. No adjustment or relief on account of any disputed charges shall be made unless disputed charges are the subject of such notice within the time herein specified, 91 or within a reasonable period from the time The County knew or should have known of the facts giving rise to the dispute. It is expressly understood and agreed that no dispute over payments due or claimed to be due under this Subsection 3C shall be referred to arbitration for review or settlement. Upon receipt of a notification of dispute, representatives of the Village shall meet promptly with representatives of The County to resolve such dispute. If the Village and The County determine that all or a portion of the disputed payment should be refunded to County, then such sum shall be refunded. Either party may seek judicial relief relating to such monetary dispute. Any late payment under this Subsection 3C shall bear interest at the rate of two percent (2 %) per month with the minimum late payment charge being for a one (1) month period. SECTION4. WATER STORAGE CAPACITY. The Village shall maintain, during the entire term of this Agreement and any renewal or extension of it, effective water storage capacity equal to the water storage capacity required by the Charter Customer Contract for the Village System plus the storage capacity required for the County Water System pursuant to Subsection 4C of the County Customer Contract. If at any time the Village's effective water storage capacity is not sufficient to meet the storage requirements of both the Charter Customer Contract and the Subsequent Customer Contract as a result of increased storage requirements of the County Water System (but not the Village System), then the deficiency, up to the maximum requirement of Subsection 4C of the Subsequent Customer Contract, shall be deemed to be attributable to the County Water System and shall be corrected, up to the maximum requirement of Subsection 4C of the Subsequent Customer Contract, by The County pursuant to the terms of the M Subsequent Customer Contract, unless, by amendment to this Agreement the Village agrees to correct such deficiency. SECTION 5. EMERGENCY WATER DELIVERIES A. Upon completion of the Joint Facility construction and the Joint Facility becomes operational, the CountyNillage Connection shall be operated, and maintained in accordance with the following terms, conditions and limitations, with the exception of paragraph B(i) below: B. Future CountyNillage connections shall not be constructed, operated, or maintained except in accordance with the following terms, conditions and limitations: (i) The Village and the County shall submit to the Commission, for its review and approval, within 60 days following construction of the CountyNillage Connection, a report detailing the exact location of the CountyNillage Connection, the manner in which the CountyNillage 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 CountyNillage Connection. Such report shall include as -built drawings of the CountyNillage Connection and exact duplicates of any written agreement for the operation and maintenance of the CountyNillage Connection. The CountyNillage 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 CountyNillage Connection, or any agreement for the operation and maintenance of the CountyNillage 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 CountyNillage 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 County specifically related to the Village or the County pursuant to the Charter Customer Contract or the Subsequent Customer Contract, as the case may be, and the CountyNillage 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. 10 The County/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 Water needed, prior to the operation of the County/Village Connection. The County/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 County/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 County/Village Connection for each such emergency condition. (vi) The Village and the County shall keep a joint record of the amount of Lake Water delivered through the County/Village Connection, a copy of which shall be provided to the Commission within five days following termination of the use of the County/Village Connection for each such emergency condition and, in any case, every five days where the County/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 County Water System through the County/Village Connection, as the case may be, shall be paid to the Commission directly by the parry receiving Lake Water through the County/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 County/Village Connection shall be considered as a portion of the Village's allocation from the Commission. In case of service curtailment, the County's flow of water through the County/Village Connection shall be considered as a portion of the County's allocation from the Commission. 11 (viii) The Commission shall have the right to inspect the CountyNillage 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 CountyNillage Connection, and all equipment required to be installed to allow the installation of the seals or such other devices shall be installed at the County's sole cost and expense. (ix) The Commission shall bear no responsibility for, and the Village and the County 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 CountyNillage Connection. The Village and the County shall and do hereby agree to pay all fees, costs, and expenses, including legal and administrative fees, costs, and expenses, incurred by the Commission in defending itself with regard to any and all of the matters mentioned in this Subsection 5B. (x) The operation and maintenance of the CountyNillage 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. ()i) Notwithstanding anything to the contrary contained in any written or oral agreement for the operation and maintenance of the CountyNillage Connection, the CountyNillage Connection shall be operated and maintained only in accordance with this Section 5 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 CountyNillage Connection to be discontinued, and the Village and the County shall and do hereby agree to discontinue such use, at any time the terms, 12 conditions, and limitations of this Section 5A 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. C. This Agreement shall constitute the Commission's written approval, as required by Paragraph 5B(ii) above, for the Village to utilize the existing County/Village Connection to transmit and deliver water purchased by the County from the Commission through the Village Water System to the County Water System for service to the Existing Properties under non - emergency conditions until, and only until, the Joint Facility becomes operational; provided, however, that any such use of the County/Village Connection before the Joint Facility is operational shall be subject to the terms, conditions, and limitations set forth in Section 2 of this Agreement; and provided further, however, that in the event this Agreement is sooner terminated pursuant to Subsection 6D of this Agreement, the Commission's approval for the Village to utilize the County/Village Connection under non - emergency conditions shall be null and void and of no further force or effect. SECTION 6. LEGAL RELATIONSHIPS AND REQUIREMENTS A. This Agreement shall be deemed to supplement the Subsequent Customer Contract to provide for interim and emergency water deliveries to the DuPage County Unit System, as defined in the Subsequent Customer Contract, of the County. Except where expressly provided in this Agreement, nothing in this Agreement shall be construed to be, or applied in any manner, inconsistent with the terms 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 13 County 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 County/Village Connection provided by this Agreement, excuse, delay, or in any other way affect the Village's or the County's performances under such Contracts, including without limitation the making of all such payments. Notwithstanding anything to the contrary contained in the Subsequent Customer Contract, the Commission and the County expressly acknowledge and agree that the County owns the County/Village Connection and that the County shall not be entitled to payment or reimbursement from the Commission or the Village for the design, bidding, contracting, managing, and actual construction, installation, removal, relocation, replacement, extension, maintenance or improvement of the County/Village Connection. B. The Commission, the County, 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, The County and the Village agree and acknowledge that further details regarding the construction and operation of the County/Village Connection 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 County and the Village, shall not be unreasonably withheld. D. Either the Commission or the County may terminate this Agreement 14 upon 30 days advance written notice to the other, with a copy to the Village, in the following situations: 1. In the event the Joint Facility is not constructed and placed into operation on or before January 1, 2014. 2. In the event the County or Village either jointly or severably shall have failed or refused to meet fully any of its obligations under this Agreement or the Charter Customer Contract or DuPage County Contract, respectively. Upon termination, this Agreement shall be void and of no effect; provided, however, that the County 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 Subsection 5B of this Agreement shall survive any such termination. 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. 15 IN WITNESS WHEREOF, the DuPage Water Commission, the County of DuPage, 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 year first above written. COUNTY OF DuPAGE Date: (SEAL) ATTEST: By: Gary A. King, County Clerk DuPAGE WATER COMMISSION Date: (SEAL) ATTEST: By: Carolyn Johnson, Clerk VILLAGE OF OAK BROOK Date: (SEAL) ATTEST: By: M in M Daniel J. Cronin, Chairman James Zay, Chairman uopai U. Laimaiam, vmage rresiaeni Charlotte K. Pruss, Village Clerk IC: