S-517 - 01/24/1984 - WATER - Ordinances w_ �1a�A�rt MVA'fg`RC:eMN�iftMl
` ATd►R 1°a RCdW6rton/T,fACT
ORDINANCE NO. S- 517
AN ORDINANCE AUTHORIvTNG THE EXECUTION OF A WATER
$
PURCHASE CONTRACT WITH THE DU PAGE WATER COMMISSION
i
WHEREAS, the Village of Oak Brook owns a municipal water system
and is desirous of obtaining a more adequate and dependable water
supply; and
WHEREAS, the Dupage Water Commission has been created to acquire
and operate a common source of water supply and a waterworks system
and to develop facilities to furnish an adequate filtered supply of
Lake Michigan water to its members; and
WHEREAS, the Village of Oak Brook has joined the Commission and
executed a Water Development Cost Contract, dated as of March 1,
1983 pursuant to Ordinance No. 5-500 passed and approved February 22,
1983; and
WHEREAS, the .DaPage plater Commission has authorized the execution of
a Water Supply Contract with the City of Chicago, a copy of which Con-
tract is attached hereto, labelled Exhibit A and hereby made a part'
hereof; and
WHEREAS, the DuPag+e Water Commission has submitted to the Village
of Oak Brook a Water Purchase Contract, a copy of which is attached
hereto, labelled Exhibit B, and hereby made a part hereof; and
WHEREAS, subject to the execution by the City of Chicago of
the Water Supply Contract in substantial conformity in all matters
of substance with Exhibit A, the Village of Oak Brook desires to
authorize its Village President and Village Clerk to execute the
Water Purchase Contract.
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES,
ILLINOIS as follows:
Section 1: That subject to the conditions set forth in
Sectin7-0-F-TFis Ordinance, the Village President and Village Clerk
are hereby authorized to execute the Water Purchase Contract attached _
hereto and marked Exhibit B as if it were fully set forth in this
Ordinance.
Section 2: That the authorization for the execution of Exhibit
B is c---ant ng upon and specifically subject to the actual execution
of a "Water Supply Contract Between the City of Chicago and the Du-
Page Water Commission" by authorized officials of the City of Chicago'
pursuant to approval by its City Council in substantial
pursuant thispOrdinance
in all matters of substance to the contract app
as Exhibit A, as if it were fully set forth in this Ordinance.
Secticn 3: This Ordinance shall be in full force and effect
from an a ter its passage and approval and publication_ in..paimphlet
form as provided by law.
Section 4: That the Village Clerk is authorized and directed.
to pu-brish this Ordinance in pamphlet form in the manner provided by
law.
Passed this 24th day of .January , 1984•
Ayes: Trustees lmrie, -Listecki,_Maher Philip Watson.
Nays: None
Absent: None
Approved this 24th day of _ January 1984.
}
S- 517
ORDINANCE No. S- 517
Page Z
ordinance Authorizing Execution
of a Water Purchase Contract With
The DuPage Water Commission
t
t
Va11 gE esi nt 1
ATTEST:
l
Vi1Clerk
1
Approved as to Form: {
V—Rage A ttorney
Published
Date Paper
Not Published
f
14ATER SUPPLY CONT C
BETWEEN
CITY OF CHICAGO
AND
THE DU PAGE
. WATER COP-V4I SS I Oft
THIS CONTRACT made and entered into this day of
1983, and executed in sextuplicate originals (each executed
copy constituting an original ) by and between the CITY OF CHICAGO, a
Municipal corporation, organized and existing under and by virtue of the lags
of the State of Illinois, party of the first part, hereinafter called the -
"CITY", and the DU PAGE WATER COMMISSION, a public municipal corporation
created under Chapter 24, Article 11 , Division 135, Illinois Revised statutes,
hereinafter called the "COIMMISSION", party of the second part..
E X H I 'B I T "A,.
S Jl
Table of Contents
Section PUe
Findings 2
= ; PARAGRAPH A-SERVICE TO BE FURNISHED
(l) Purchase and Sale 4
.PARAGRAPH B-QUANTITY OF WATER TO BE FURNISHED
(1) Maximum Quantities 4
(2) State Water Allocations 5
(3) Minimum Quantities 5
(4) Maximum Hourly Rate 5
15) Individuals in Charge of Systems 5
6) Emergency Service - '5
PARAGRAPH C-FACILITIES, EQUIPMENT PO4D OPERATION
(1) System Facilities 5
(2) Operation and Maintenance 6
(3) *-Cost of Operation and !-Maintenance 6
(4) . -Cost of Electrical Energy 6
(5) Operational Information Devices 6
(6) City's Right to Inspection 7
(7) Reservoi r 7
(8) Permits, Inspections, Zoning etc. 7
(9) Reservoir Storage and Usage 7
(10) Total Storage Capacity Available 8
(11 ) Purchase of Interconnection Facilities by City 8
(12) Conveyance of Interconnection Facilities to City 8
(13) Commission's Responsibilities of Commission System 9
(14) Connecting of Interconnection to City's Distribution
System 9
PARAGRAPH D-DELIVERY -
(1) Start of Water Delivery � • 9
(2) Amounts of !-later to be Delivered 9
(3) Delivery During an Emergency 9
(4) Notification of Emergencies, Failures, etc. ;9
PARAGRAPH E - WATER QUALITY
(1) Water Quality 10
(2) Air Gan 10
(3) City's Responsibility 10
(4) Notification of Possible_Change in !eater Quality 10
(5) City's Right to Inspect
Section Page
PARAGRAPH -F - REPORTING REQUIREt•IENTS
(1) Monthly Reporting By Corr-mission 10
(2) Commission's Records 10
(3) Yearly Report of Water Rate of Commission's Customers 10
PARAGRAPH G - MEASUREMENT
(1) Point of Measurement i1
(2) Measuring Devices 11
(3) Installation and Maintenance of Devices IT
(4) - Inspection and Repair or Replacement of Devices . 11
5) . Readings 12
6) Estimates 12
PARAGRAPH H - RATES, DISCOUNTS AND BILLING
1) Basic Charge - 12
2) Billing Frequency 12
(3) Adjustment Based on Credits and Costs 12
(4) Discount 13
(5) Deposit - 13
(6) Billing of Minimum Water Usage 13
• PARAGRAPH I - TERMS AND STANDARD CONDITIONS
(1) Term 13
(2) Amendment. -. 14
(3) Assignment 14
(4) Cancellation -14
PARAGRAPH J - INSURANCE -
(1 ) Workman Compensation 14
(2) Comprehensive General Liability . 14
_ (3) Comprehensive Automobiles - 14
(4) Contractor's Contractual 14
(5) Special Hazards 14 -
. (6) Owner's Protective 14
PARAGRAPH K - INDEMNITY 15
` PARAGRAPH L - FORCE MAJEURE
JI) Definition of Term 15
2) Reporting 16
(3) Obligation 16-
(4) Rights '
PARAGRAPH M - CONTINGENCY 16
PARAGRAPH N - SERVICE OF NOTICE 16
Ai
i h
WITNESSETH
WHEREAS, the CITY is the owner and operator of waterworks
,providing intake, treatment and distribution of Lake Michigan water; and
WHEREAS, the COMMISSION is established for the purpose of providing
adequate°supplies of potable Lake Michigan grater .for municipalities and water
utilities within the County of DuPage; and
WHEREAS, the COMMISSION is authorized to enter into contracts to
buy water•pursuant to the laws of the State of Illinois; and
WHEREAS, the COP�'J`4ISSION desires to obtain a supply of Lake Michigan
water from the CITY in order to provide adequate supplies of Lake Michigan
water to the municipalities and water utilities as customers of the- COMMISSION.
WHEREAS, the municipalities and water utilities of the COMMISSION
to be supplied have .each received an allocation of Lake Michigan crater pursuant
to Opinion and Order LMO 80-4 and any subsequent orders of the Illinois.
Department of Transportation; and
WHEREAS, the C0;•;MISSION intends to provide Water Supply Facilities,
namely:
(i) INTERCONNECTION FACILITIES consisting of:
a pumping station, a reservoir and a tunnel and shafts
connecting the CITY'S tunnel at Central Park Pumping Station
to the aforementioned reservoir and pumping station between the
Eisenhower Expressway on the north, Central Avenue on the Hest,
Baltimore and Ohio Railroad on the south and Laramie Avenue
on the east, all located within the CITY OF CHICAGO. The
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pumping station is to have a firm pumping capacity large
enough to enable it to both supply the requirements of the
COMMISSION SYSTEM and to replenish any INTERCONNECTION and
COMMISSION SYSTEM reservoir usage as required during peak
demand periods. - Firm capacity as herein referred to is de-
fined as the capacity with one pump of the largest size .
Anstalled not in use. All of above is referred to hereinafter
as the "INTERCONNECTION FACILITIES" and
(ii) A COMMISSION SYSTEM consisting of a transmission main capable
of supplying the requirements of the COMMISSION from the
INTERCONNECTION FACILITIES to a reservoir and pumping station
in the vicinity of the Cook-DuPage County Line, and the mains
necessary to transmit Lake Michigan water to the municipalities
and water utilities in DuPage County, these facilities are
referred to hereinafter as the COMMISSION'S SYSTEM: and
WHEREAS, the I-later Supply Facilities to be constructed are to be
sized to serve municipalities having their principal office in DuPage County
: and customers of.the C0.IMISSION' who are water utilities whose systems are
principally in DuPage County for resale to their customers. The Water Supply
Facilities will be sized on the basis of the COMMISSION'S projected maximum
day water needs of 160 million gallons per day (MGD) in the year 2020 and
WHEREAS, the CITY agrees to own and operate the INTERCONNECTION
FACILITIES and proposes to acquire the INTERCONNECTION FACILITIES from the
COMMISSION through an arrangement with the COMMISSION with periodic payments to
the C0;•MISSION to be in the form of credits against charges for Lake Mater
-supplied the COMIMISSION.
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^ ! r
NUW, THEREFORE, 'in consideration of the mutual covenants and
agreements contained hereinafter the parties agree as follows: ^�
A. SERVICE TO BE FURNISHED
(1) The CITY agrees to supply to the COMMMISSION and the
COMMISSION agrees to purchase and take from the CITY under and in' accordance
with the terms hereof, a supply of water through a metered connection
authorized by the Commissioner of Water of the CITY. -The CITY shall supply
available water from the INTERCONNECTION FACILITIES into the COt�u�IISSION'S
-transmission main to supply the COMMISSION'S reservoir in the vicinity of
- the Cook-DuPage County Line. The COMMISSION shall receive the water in the
reservoir near the Cook-DuPage County Line and distribute such water to
.municipalities having their principal office in DuPage County and water
utilities whose systems are principally in DuPage County for resale to their
customers. Exhibit A, attached-hereto, identifies the customers of the
COMMISSION and their Lake Aichigan allocation from the Illinois Department
of Transportation. This Exhibit shall be updated annually and customers added
with approval of the Commissioner of Mater for the CITY and the DT PAGE WATER
COMMISSION. _
B. QUANTITY OF WATER TO BE FURNISHED -
(1}. The CITY agrees to supply to the CO M]
for use by its
.customers, such quantities of Lake Michigan water as are allocated by the
-Illinois Department of Transportation to the customers of the COMMISSION for
the years as covered by this Contract. The CITY'S obligation under this
-
Contract shall not exceed on any given day the maximum day amount of Lake
Michigan water set forth for that year as shown in Exhibit B attached hereto.
_ Exhibit B may be modified periodically by the C01,1miSSION but only -with the
prior approval of the Commissioner of Water for the CITY. The maximum day
.,,amount specified in Exhi.bit B is 1 ;7 times the. annual average day quantity
-for any given year.
(2) The annual average day quantities shown in Exhibit B
are in accordance with the allocations made to the separate entities by
Opinion and Order LMO 80-4 and subsequent orders of the Illinois Department
of Transportation. The quantities for each separate entity become effective
i
only on the effective date of. the allocation for the entity.
' (3) The COMMISSION shall purchase and pay for in each calendar
year after that year in which the full CUDIISSION system is first placed in
service no less than the amount of Lake water shotNm in Exhibit B under Minimum
_ Annual Million Gallons. Prior to the date that the full COMIMISSION system is
first placed in service the COMIMISSION shall pay only for that amount of Lake
Water as is actually supplied to the COMMISSION. ,
(4) The maximum hourly rate of withdrawal of water from the
INTERCONNECTION FACILITIES shall not exceed 220-million gallons per day which
is equivalent to a rate of 9.167 million gallons per hour.
(5) The COMIMISSION 'and the CITY shall each notify and keep
the other informed of the name of the individu0 (3) in charge of operations
of their respective Systems. - : -
(6) The C0MMISSION shall be permitted to provide emergency
.-service to others when necessary and where possible. The COMMISSION shall
.,promptly advise the CITY of the need and nature of the emergency service -
-provided and the probable duration.
C. FACILITIES, EQUIPMENT AND OPERATION
(1) The COM11ISSION will initially provide such tunnels,
..-transmission mains, pumping stations, reservoirs, and appurtenances necessary
to"transmit Lake Michigan water from the CITY'S tunnel at the Central Park
_ Pumping Station to the COMMISSION'S receiving point, all as shown in attached
Exhibit C, which is a schematic drawing of the System intended to be- con-
structed within the City of Chicago and the County. 'of Cook. Attached Exhibit D
-5-
shows the proposed location of the pumping station and reservoir. The
COWMISSION will , from time to time, expand its system as necessary to deliver
the Lake Michigan water to be furnished under this Contract and any extension
thereof.
(2) Except as described herein the CITY will be responsible
for the 'bperation and maintenance of the INTERCONNECTION FACILITIES from the
time said facilities first become operational .
(3) The direct cost of operating and maintaining the INTER-
CONNECTION. FACILITIES pumping station shall be apportioned between the
-COM.MISSION and the CITY, each paying for 50% of the cost attributable to
delivery of water to the COMMISSION except for electrical energy. Attached
Exhibit E shots costs eihich are to .be apportioned.
(4) The COI WS portion of the cost of electrical energy
to operate the I;1TERCONNECTION FACILITIES pumping station is the ratio of the
---average pumping station discharged head to the average total head during the
. ..billing period for water delivered to the COM MISSION. The average pumping
i
-station discharge head is defined as the average of the hourly readings of the
pressure in the discharge header above USGS Elevation 605. The average total
head is defined as the average of the pumping station discharge head plus the
average of the hourly suction water levels below USGS Elevation 605.
• (5) The COMMISSION shall provide any and all devices
.. reasonably necessary for the purpose of controlling; measuring, transmitting
sand recording flows of the supply of water furnished, and for the trans- j
mitting and recording of pressures, reservoir levels and other required
:operational information.
. I
(6) The CITY reserves the right to inspect and approve all
initial and expansion facility equipment plans end specifications prior to
"6- .. .
construction of the facilities in Cook County, said approval shall not be
unreasonably withheld by the CITY. The CITY also reserves the right during
construction to inspect at any time such construction to insure its con-
formance with approved plans and specifications.
(7) The COWUSSION will initially provide as part of the
INTERCONNECTION FACILITIES a 30 million gallon reservoir in the vicinity of
the Eisenhower Expressway and Central Avenue and as part of the COMMISSION
SYSTEM a 30 million gallon reservoir at the Cook-DuPage County Linea These
reservoirs will be available and operative at the time the COM11ISSION'S; "
SYSTEM first becomes operational .
(8) The CITY will assist the COMMISSION in obtaining all CITY
•; permits, licenses, inspections, zoning, approvals and publ i c ri ght-•of-►•gay for
:the construction of the tunnel , reservoir, pumping station and transmission
-main initially provided by the CO►"•MISSION in the CITY. The COMIMISSION, with
cooperation from the CITY, will obtain the site(s) for the pumping station
and reservoir located in the CITY. The CITY will waive fees where possible.
(3) The COMMISSION shall be responsible for there being
provided and maintained at all times during the term of this Contract crater
-storage within the COMMISSION'S SYSTEM and participating municipalities
collectively of sufficient capacity to store not less than two times the
annual average daily demand of the CWHISSION members. Operable shallow well
. capacity may be counted for meeting up to 10% of the storage requirement.
The COMMISSION SYSTEM shall be operated so as to properly utilize reservoir
storage within the COMMISSION SYSTEM and its customer's connections in such a
manner as to assist theC1TY in maintaining a balanced flow within the CITY
SYSTEM.
(10) The COMMISSION agrees to keep the CITY informed of the
total storage capacity available between the COMIMISSION SYSTEM and its
.customers collectively.
(11) The CO101ISSI0N agrees to sell and. the CITY agrees to buy
-the INTERCONNECTION FACILITIES constructed by the C0*e7r1ISSION connecting the
CITY SYSTEM tunnel at the CITY'S Central Park Pumping Station with the
C0►*IISSION SYSTEM transmission main in the vicinity of the Eisenhower
Expressway and Central Avenue at a price equal to the aggregate costs of
the construction of the INTERCONNECTION FACILITIES. Aggregate cost of the
- construction is defined as land, engineering, construction and interest on
construction costs for a period not to exceed four (4) years -from the
beginning of the construction by the COM,,MISSION of the INTERCONNECTION
,.FACILITIES and is the sum of interim payments and final payments made to the
construction contractors, engineers and landowners. Attached Exhibit F shows
costs eligible for reimbursement. Payments to the CO;:MISSION shall be solely
in the form of a credit against any amounts due and owing the CITY for Lake
:=hater furnished, as set forth in Paragraph H(3).
• (12) The COMIMISSION agrees to convey to the CITY its entire
--.right, title and interest in the INTERCOtINECTION FACILITIES constructed
within the City of Chicago thirty (30) days after completion of repayment of
`-the aggregate cost of construction of the INTERCONNECTION FACILITIES as
,:determined under Paragraph C(11 ). It is expressly understood that the
COM.MISSION shall be entitled to continue to receive rater from the INTER-
CONNECTION FACILITIES during the life of the Contract and any subsequent
extensions thereof. '
(13) Th.e COfyMUS10 will , at its own expense, Qperate,
maintain, replace and improve the COMMISSION SYSTEM facilities as it deems
necessary for the CITY to deliver Lake Michigan water to the COMMISSION when
and as required under this Contract during the term of this Contract,
including any extension of it.
(14) The COMMISSION agrees the CITY at its own expense may
connect to the INTERCONNECTION pumping station in the CITY for the purpose.
of supplying water to the CITY'S Distribution System provided the COMMISSION
supply is not impaired.
D. DELIVERY
-(1} The CITY shall deliver Lake Water.at such time as the
COMMISSION shall have completed the construction of the INTERCONNECTION
FACILITIES and the full COMMISSION SYSTEM or, at the option of the COPIMISSIOC!
at such earlier time as one or more customers of the COMIU SSION are capable
of receiving Lake Water.
(2) The CITY agrees to deliver water in accordance with
Exhibit B to the COMISSION'S transmission main for supplying the COMMISSION'S
reservoir in the vicinity of the Cook-DuPage County Line.
(3) If for any reason the CITY is unable to supply in full the
quantities of Lake Michigan Mater to be furnished from time to time to the
COMMISSION the CITY shall use due diligence to operate the CITY SYSTEM and
INTERCONNECTION FACILITIES during any such occurrence to provide Lake Michigan'
dater to the COMMISSION insofar as practicable, and shall , as promptly as possible,
take such actions, including expediting repairs or adjustments , as are necessary
I
to restore delivery to the COMMISSION of the Lai;e Michigan Mater to be furnished.
(4; The COMMISSION or the CITY shall each notify the other
as promptly as practicable of all emergencies, failures, malfunctions or other
conditions in their respective SYSTEM which may directly or .indirectly affect
the other party's SYSTEM.
E. WATER QUALITY
(1) The CITY shall supply the COMMISSION with water of a
quality commensurate with that furnished to its customers within its City
limits, the crater quality being consistent with Federal and State standards.
(2) The C011MISSION shall have an air gap* at its receiving
reservoir for its supply of water from the CITY.
(3) The CITY bears no degree of responsibility for. the water
quality beyond the pumping station discharge into the COMMISSION SYSTEM in
the vicinity of .the Eisenhovier Expressway and Central Avenue.
(4) Each of the parties hereto shall immediately notify the
other of any emergency or condition which may affect the quality of water
in either party's SYSTEM. .
(5) The CITY and the COMMISSION have the right to make inspections
of those facilities which may affect the quality of the eater supplied to the
COMMISSION and to perform any tests deemed necessary '
F. REPORTING REQUIREMENTS
(1) The COMMISSION shall submit on a monthly basis, by the
10th day of each month, a report showing the amount of Lake Michigan Water
delivered under this Contract for the previous month and the amount of Lake
*-Michigan I•later supplied during such previous month to each customer supplied...
(2) The COr+L�iISSIOrd shall maintain suitable records of water"
used by the municipalities and these records shall be available to the CITY
at all reasonable times.
(3) At the end of each calendar year during the term of this
Contract, and not later than March 31st of each year, the COr•]MISSION agrees to
submit to the Commissioner of Water of the CITY a written copy of the prevailing
water rate as applicable to its water customers. It shall include all rates
and relevant information and the premise on which rates have been established.
G. MEASUREMENT
(1) The quantity of Lake Michigan crater furnished to the
C014MISSION under this Contract will be measured on the discharge piping of
each pump and on the discharge header leaving the INTERCONNECTION FACILITIES
pumping station in the vicinity of Eisenhower Expressway and Central Avenue.
The unit of measurement shall be cubic feet of water, U. S. Standard Liquid
Pleasure.
(2) The COMMISSION shall provide mutually acceptable meters
. for measuring the supply of water on the discharge side of each pump, and
mutually acceptable master meters for measuring the flo:�r of water in the
discharge headers from the INTERCONNECTION FACILITIES pumping station. The
master meters will be the primary devices used for the registration and billing
of quantities of tinter supplied under this Contract. All meters are to be
adjacent to and readable in the INTERCONNECTION FACILITIES pumping station.
Provisions shall be made for the use of pitot tubes adjacent to the master
meter for calibration and test purposes.
(3) The C0111MISSION shall initially install and house the meters
'referred to in paragraph G(2) and the CITY shall operate, maintain and repair
them as needed, at the expense of the COMMISSION.
(4) The CITY'S representative will regularly inspect the
meters measuring the supply of grater furnished and at the expense of the-
COMMISSION will repair or replace any part of.a meter which has a*total
registration greater than the industry standards, or which has been in.service
for a period greater than the industry standard or which is known or suspected
to be registering incorrectly. The CITY shall check the master meter for
-` accuracy semi-annually by use of pitot tubes in the presence of the
C011VISSION`S representatives and at the expense of the COMMISSION.
VUt'L'!lJJIU1pi
-'shall be made by the CITY once every calendar month. Wee. kly reading shall
be transmitted to the COMMISSION. -
(6) When it is determined that a measuring device. registered
incorrectly, an estimate of the amount of water furnished through the faulty
device shall be prepared by the CITY'S Commissioner of dater for the purpose
.of billing the COMMISSION. The Estimate shall be based upon the best
available information, including summation of other available meter readings,
the average of- twelve preceding readings of the meter, exclusive of incorrect
reading, and calibration of the master meter.
H. ' 'RATES; -DISCOUNTS AND BILLING
(1) -The charges for Lake Mater furnished to the COMMISSION
under this contract shall be at the rate fixed for large quantities' of water
furnished through meters to consumers inside the CITY and suburban communities
served by the CITY, said rate being fixed and adjusted from time to time by
CITY Ordinance. These charges shall not exceed the lowest rate -lawfully fixed
by the CITY .for Lake hater furnished through meters to regular customers.
These charges known as the "Basic -Charge" shall not be subject to any surcharge,
fee or tax. -
(2) The CITY shall bill the COMMISSION at monthly intervals
for all Lake Michigan water furnished to the COMMISSION under this Agreement.
The COMMISSION shall pay the water bill within 21 days.
(3) Each billing to the C0"•1MISSION shall be computed on the
following basis:
a. - A gross billing charge for water furnished ("Basic
' P a 3m e Charge").minus discount fo r prompt t.
A credit equal to 20z; of net charges of water furnished.
• c. - Charge for electrical energy - paragraph C(4).
d. A .charge of 50% of direct cost of operating expenses -
paragraph C(3).
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The credit shall commence with the first billing to the COMMISSION and
continue until such time as the CITY shall have so credited the COMMISSION
with an amount equal to the aggregate costs of the construction of the
INTERCONNECTION FACILITIES as defined in Paragraph C (11 ).
(4) The C0YMIISSION shall be entitled to the same discount for
prompt payment of water bills as is allowed to metered customers inside the
CITY or to suburban communities served by the CITY,
(5) In the event of non-payment of the water bill by the'
COMMISSION within 45 days, the CITY reserves the right to require the
COMMISSION to deposit, in advance, a sum equal to the average estimated costs
for water supply during a period of ninety (90) days at the prevailing metered
rate, said sum shall be deposited in an interest bearing account and the
interest credited to the COMIM-I-SSION.
(6) In the event the COMMISSION fails to utilize in any
calendar year an amount equal to the minimum annual million gallons specified
in Exhibit 8, the COMMISSION agrees to pay .to the CITY upon the CITY'S
request an amount equal to the cost, based on the then current rate, of the
difference in annual water usage between the minimum annual average day
specified and the actual amount purchased.
I. TERMS AND STANDARD CONDITIONS
(1) This Contract shall have a term of forty (40) years
commencing on the date of this Contract, subject, however, to the option of
the COMMISSION to renew said Contract for a like term or lesser term of not
less than ten (10) years. Written notice thereof shall be submitted to .the
CITY no less than six (6) rionths prior to the expiration of the then active
_. Contract. Amounts of water for average day use during any term will be as ,
allocated by the State of Illinois.
(2) No officer, official or agent of the CITY or the
-COtVISSION has the power to amend, modify or alter this Contract or waive any
of its conditions as to bind the CITY or the COMMISSION by making any promise
or representation not contained herein.
(3) This Contract shall not be assigned or transferred, by
- either party without the consent of the other.
(4) This Contract will be subject to cancellation to the
extent to which a Court of competent jurisdiction restricts or limits, directly
or indirectly, any of the CITY'S or the COMMISSION'S rights to obtain, or to
: . •sell , contract for, or distribute Lake Michigan water.
J. INSURANCE
The COW4IS SION shall take out and maintain during the life of
this contract the following insurance or'indemnify the CITY under Paragraph K.
(1) Workman Compensation - Coverage A - Statutory, Coverage
$ - $100,000.00 (One Hundred Thousand).
(2) : 'Comprehensive General Liability - Public Liability - Each
Person - $500,000.00 (Five Hundred Thousand) Each Accident - $1 ,000,000.00
,.-(One Million). Property Damage .- Each Accident - $100,000.00 (One 1{undred
:!Thousand) Aggregate - $300,000.00 (Three Hundred Thousand) .
(3) Comprehensive Automobiles - Same limits as Subsection 2.
(4} Contractor's Contractual - Same limits as Subsection 2.
(5) Special 'Hazards - Blasting Explosion and Collapse,
Damage to Underground Utilities, Any other hazards involved in the work-to be
performed under this contract. Same limits as Subsection 2. '
(6) Owner's Protective - The City of Chicago will be an
additional named insured.
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K. 114DEMNITY
COMMISSION shall indemnify to extent permitted by law, keep
and save harmless the CITY, its agents, officials and employees, against all
injuries, deaths, loss, damages, claims, patent claims, suits, liabilities,
judgments, costs and expenses, which may in anywise accrue against the CITY
in consquence of the granting of this contract or which may in anywise result
therefrom, if.it shall be alleged and determined that the act. was caused
through negligence or omission of the COMMISSION or its employees, of the
Contractor or his employees, of the Subcontractor or his employees, if any,
and the COMMISSION shall , at its own expense, appear, defend and pay all .
charges of attorneys and all costs and.other expenses arising therefrom or
incurred in connection therewith, and, if any judgment shall be rendered
against the CITY in any such action, the `COMMISSION shall , at its own expense,
satisfy and discharge the same. COMMISSION expressly understands and agrees
that any performance bond or insurance protection required by this contract,
or btherviise provided by the COMMISSION or by its Contractors, shall in no
way limit the .responsibility to indemnify, keep and save harmless and defend
-the CITY as herein provided. In defending -the CITY, its agents, officials and
employees, the COMMISSION may utilize any immunities which may be raised on
. behalf of the Defendants provided that the use of such immunities by the
COMMISSION shall not.result in a judgment against the Defendants. The obligation
of the COIMiJhSSION to indemnify shall not extend to any claims made or suits
filed by the COMMISSION or its members against the CITY.
L. FORCE MAJEURE
(1) The term "Force Majeure" as used in the contract shall mean
acts of God and any event or effect that cannot reasonably be anticipated or
- -controlled.
(2) In any case by reason of "force majeure ' the L11Y or the
COMMISSI0,1 is rendered unable wholly or in part to carry out its obligations
under the contract, notice and full particulars of such "Force Majeure" are
to be given in writing within a reasonable period of time by the party unable
to carry out its obligations to the other party.
(3) The obligation of the party giving such notice, so far as
it is affected by such "Force Majeure," shall be suspended during the con-
.tinuance of the inability claimed, but no longer.
(4) Both the -CITY and the COMMISSION may exercise their rights
:.under this "Force Majeure" section with regard to all provisions of this Contract.
M. CONTINGENCY
This Contract is contingent on the COMMISSION'S ability. to
finance the project and the COMMISSION'S ability to enter into water purchase
contracts totalling a water allocation of not less than 55 MGD. within two years
after the effective date of this Contract.
N. SERVICE OF NOTICE
All notices or communications provided for herein shall be in
writing and shall be delivered to the CITY or the COi�1hIISSIOt�! either in person
or by United States mail, via Registered mail , return receipt requested, postage
prepaid, address to the CITY as follows:
COMMISSION OF WATER
CITY HALL ' . .
CHICAGO, ILLINOIS . 60602
-or addressed to the COMMISSION; as foIIows
GENERAL MANAGER
-DU PAGE WATER COMMISSION .
P. 0. BOX 727
ELMHURST, ILLINOIS 60126
until and unless other addresses are specified by notice given in accordance
herewith.
-16-
IN WITNESS WHEREOF, the CITY OF CHICAGO has caused this Contract
to be signed in sextuplicate originals (each executed copy constituting
an original) by its Commissioner of Water, countersigned by its Comptroller,
approved by its Mayor, and its Corporate Seal to be hereto affixed and duly
attested by its Clerk. The DuPage Water Commission has caused the same to
be signed in sextuplicate originals (each executed copy constituting an
original) by its Chairman of the Board of Commissioners and its Corporate
Seal to be hereto affixed, duly attested by its Clerk, on the date and year
. first about written.
CITY OF CHICAGO
A Municipal Corporation
Countersigned by: BY:
MAYOR OF CITY OF CHICAGO
BY:
City Comptroller COMMISSIONER OF WATER
ATTEST:
City Clerk (SEAL)
- DU PAGE WATER COMMISSION
ATTEST: - A Public Municipal Corporation
BY:
CLERK - DU PAGE WATER COMMISSION Chairman
APPROVED AS TO FORM AND LEGALITY
SUBJECT TO PROPER AUTHORIZATION AND
EXECUTION THEREOF:
Assistant Corporation Counsel
City of Chicago -17-
i v
LIST OF EXHIBITS
PARAGRAPH EXHIBIT 0 . TITLE
.A t1) A Customers and Allocations
B (1 ), B (3) B Avg. , Max. & Min. Day Water
...Amounts .
C (1 ) C Schematic Drawing of System
` C (1) D Proposed Location of Pumping
Station and Reservoir
• C (3) E Cost Breakdown of Operating
INTERCONNECTION FACILITIES
C (11) F Cost Breakdown of Construction
of INTERCONNECTION FACILITIES
. Exhibit A
W= SUPPLY OaURACT BETS=
rME CITTY Or CRIMG0 KND THE
DU PACE j Z CCk`��iISSION
July 1, 1983
Du Page Water
ComLission Illinois Dept. of Transporation
Customers Allocation of Lake Mid_ni.gan Water
1985 1986 1987 1988 1989 1990 2000 2010 20
(Million Gallons per Day)
1. Addison 4.717 4.728 4.791 4.854 4.917 4.980 5.655 5.637 5.
2. B, nsernr-lle 2.549 2.543 2.564 2.585 2.607 2.628 2.855 2.857 2.
3. -Bloomingdale. 2.012 2.044 2.135 2.227 2•.319 2,411 3.553 3.538 3. .
4. Carol Strewn 2.294 2.394 2.493 2.593 2.693 2.793 3.916 4,004
5. Citizens Utilities (1) 1.278 1.280 - 1.292 1.305 1.317 1.330 1.4G4 1.469 1.`
S. Clarendon Hills (2) 0.745 0.745 0.745 0.745 0.745 0.749 0.773 0.778 0.
7. Darien 1.219 1.270 1.321 1.373 1.426 1.480 2.057 2.058 2.:
B. DoYmers Grove 5.967 6.022 6.136 6.250 6.364 6.479" 7.785 7.772 7.:
9. Du Page County (3) 0.587 0.609 0.633 0.658 0.682 1.492 1.705 1.711 1.`.
J. Elmhurst 5.819 5.859 5.899 5.940 5.981 6.021 6.362 6.348 6.-
L. Glendale Hts. 2.057 2.087 2.118 2.149 2.180 2.211 2.49G . 2.506 2.r
2_ Hinsdale 2.792 2.790 2.819 2.484 2.877 2.906 3.176 - 3.174 3.<
3. Lisle 2.200 2.289 2.379 2.470 2.560 2.652 3.747 3.768 3_E
_. Lo:rb ard 4.279 4,312 4.392 4.473 4.553 4.634 5.541 5.562 5.
f '�, ,►-.. � - - Exhibit E
VATER SUPPLY CONTRACT BETWEEN
THE CITY OF CHICAGO AND THE
DU PAGE WATER COMiMISSION
BASED ON ALLOCATION YEAR
October 1 to September 30
Annual -Minimum
*Average Maximum .Annual MG
Day Day - (50% of IDOT
YEAR MGD MGD Allocation ;X" 365)
1985 66.139 112 12,070'
1986 67.189 114 12,2G2
1987 68.615 117 12,522
1988 69.690 118 121,718
1989 71.488 122 13,047
1990 73.723 125 13,454
1991-2000 73.723 - 91 .469 125 - 155 13,454 - 16,693
' 2001-2010 91 .469 - 92.490 155 - 157 16,693 - 16,E79
20114020 92.490 95.640 157 - 163 16,879 - 17,454
Annual Average Day, Maximum Day and Minimum Day Valves For:
Years between 1990 and 2000 are straight line progressions
2000 and 2010 $I „
2010 and 2020
* Sum of DuPage I-later Commission Customer
IDOT Lake Michigan Allocations
** To be adjusted based on current water allocations
I
THE CITY OF CHICAGO AND
THE DUPAGE NVATER COIv NI SiON
JULY 1, 1983 INTERCONNECTION CITY S
COMMISSIONS SYSTEM ��� FACILITIES _1_ SYST.
IN, a O • r
OAK PARK
DERK?LEY
J W �
ELI.'.NU ST
HILLSIDE nY
y MAYWOOD
`nDosEVfLj FOREST / f!_
C III
iCA G
27ND VT
4 _ 2ST H
4 v 7 � C Y 011 AGO
o v u a A ORR LIM ) .
PLAN
SCALE:I"=2 Ml.
LEGEND
CENTRAL PARK P.S. —=- i TUNNEL .
d i 30 M.G. RES. & P.S. �--• i 84„� TRANSMISSION! tf.At:d _
• COMMISSION'S SYSTEM INTERCONNECTION CITY'S '
. - FACILITIES SYST.
• Ci —T—
Y — 750 r
DL� �- -- 1-
! ;70, f
_ —Jam— _.._ ACS: •� *-
i r
r-Af'PROX-GROtJ;`!D' �TE LfV.— _
650
_.N4'_� .E2AtvSb11SS10t/_1.tAt;I ' IE--1 � �..
-- — ----jI�550
• -- ---- _ r7UHt1E1.—�_�L—t.
r FRT SC�1.E_1=10��<�J.GJ�DiTUI•S -
_- --- 1ORIZ -SCALC:
__ -- 450.
13 12 11 IQ 9 C 7 G 5 4
• ALVORD, BURDICK a HOWSO\r;
ENGINEERS CHICAGO
. , ; • ' . • • , •• • :•. "' �••. ' '.. EXHIBIT
t
' YafLK .
(0
of
1. O
44
. .._:".:_ ::---ter.�1 . . . . ., ' ; •
OnM?' VO12.
p NJ C� -s-m (N4 i cAe,, O
• � '' �l&r�IE�QS CutG.Rc4•
r �--- L7 77
EXHIBIT F
1) Cost of the INTERCONNECTION FACILITIES construction project eligible for
reimbursement by the CITY to the COMMISSION as described in Paragraph
C (11 ) of the contract include the following:
a. LAND - Includes those costs pertaining to the acquisition of
property required to construct the INTERCONNECTION FACILITIES.
B. ENGINEERING - Includes those engineering costs pertaining to
the design and construction of the INTERCONNECTION FACILITIES.
c. CONSTRUCTION - Includes those costs %..hich apply to the actual
construction of the INTERCONNECTION FACILITIES.
d. INTEREST ON CONSTRUCTION - To be determined based only on monies
actually paid out at any interval of time to engineers, land-
owners and construction contractors for purposes of the
INTERCONNECTION FACILITIES. Interest will begin to accrue with
the first payment for construction, and will initially be based
on that payment and any amount previously paid landowners and
engineers. Interest will continue to accrue on these monies
and will begin to accrue on further construction _ payments from
the time said payments are made, until either construction is
• completed and the INTERCOi•ai•1ECTIOt! FACILITIES placed in service .
or for a period of four years from the initial date of the first
paymer;t for constructi on, whichever period is shorter. Interest
will Le at the same rate at which obligations are sold by the
COtT1ISSION to finance the construction of the FACILITIES.
e. EQUIPMENT - Includes the cost of equipment required for OPERA-
TION of the IPITERCO?,idECTION FACILITIES.
:2) Once the INTERCONNECTION FACILITIES- are completed and placed in service
or four years after tine initial date of the first payment for construction,
whichever period is shorter, the COt-1,111ISSION and the CITY will reach
agreement on the selection of an independent accounting or engineering
firm for the purpose of determining the actual aggregate costs of the
INTERCONNECTION FACILITIES eligible for reimbursement. The COMIMISSION
will engage the agreed to firm and will provide copies of all records
pertinent to determining the costs of the INTERCONNECTION FACILITIES.
Both the C01MMISSION and the CITY agree to pay one-half of the fee of the
auditing firm with the COMMISSION initially paying the fee and the CITY
rebating its portion as part of the INTERCONNECTION FACILITIES cost.
C
VILLAGE OF OAK BROOK
1200 OAK BROOK ROAD
OAK BROOK, ILLINOIS
654-2220
i
April 30, 1984
Mr. Robert Palmer
DuPage Water Commission
P.O. Box 727
225 Prospect Avenue
Elmhurst, Illinois 60126
Re: DuPage Water Commission
Water Purchase Contract
Dear Mr. Palmer:
Enclosed with this letter are three (3) fully executed originals of the
above-referenced Contract. Upon the execution of the Contracts by the
Commission we would appreciate a copy being forwarded to this office for
our files.
~ Sincerely,
o H. Brechin
Vil age Manager
I
/cak
Encl.
I
'I
r
� t
WAGE WATER COMMI SIGN
E
WATER PURCHASE CON RACT
THIS CONTRACT (hereinafter referred to as the "Contract") made and
C
entered into as of this day of 1984, by and between
the WAGE WATER COMMISSION (hereinafter referred to as the "Commission") , a
water commission created under Chapter 24, Article 11, Division 135, Illinois T
Revised Statutes, and the VILLAGE of OAK BROOK
a municipal corporation in DuPage County, Illinois, acting under the laws of
the State of Illinois (hereinafter referred to as the "Municipality").
W I T N E S S ETH: ` .
WHEREAS, the Municipality owns the Municipal System as hereafter
defined, and is desirous of obtaining a more adequate and dependable water
supply; and
s
WHEREAS, the Commission has been created to acquire and operate a
X
common source of water supply and a waterworks system (the Waterworks System t
r
as hereafter defined) and to develop facilities of sufficient capacity to
furnish an adequate supply of filtered Lake Michigan water ("Lake Water") to 4
i
Members, Nonmember Customers (as both terms are hereafter defined) and other
customers as may be served from time to time; and
WHEREAS, the Municipality has joined the Commission and has executed
"Water Development Cost Contract,"-'dated as of March 1, 1983 b and among
a a p y 9
the Commission and the Illinois municipalities named in the definition of
"Member" herein; and
/2- /6/- 8'3
WHEREAS, the Municipality has received from the State of Illinois
Department of Transportation a Water Allocation as hereafter defined; and
WHEREAS, the Commission has entered or is preparing presently to
enter into a contract with the City of Chicago to purchase Lake Water suffi-
cient to meet the water supply needs of the Commission-and its Members (the
Chicago Water Supply Contract as hereafter defined) ; and
WHEREAS, the Commission proposes to issue and sell its Bonds as
hereafter defined from time to time during the term of this Contract in suffi-
cient amounts for the payment of Costs of the Project as hereafter defined
and
WHEREAS, it is the intention of the Commission to permit payments to
be made by the Members (the Member Advances as hereafter defined) for the
purpose of paying all or a portion of Costs of the Project and to repay such
Member Advances with revenues of the Waterworks System (such repayment to
constitute a Member Reimbursement Cost as hereafter defined); and
WHEREAS, the Bonds will be issued from time to time by the Commis-
sion pursuant to a Bond Resolution as hereafter defined; and
WHEREAS, said Water Development Cost Contract was executed for the
purpose of obligating the Municipality for the payment of 'a proportionate
share of interim indebtedness as may be or may have been incurred by the Com-
mission thereunder for plans, feasibility, studies, legal , engineering, and
financial consultant fees, administrative expenses, and property and right-of-
way acquisition costs prior to the issuance of Bonds for the initial acquisi-
tion and construction of the Waterworks System; and
WHEREAS, Division 135 of the Illinois Municipal Code, as amended
(Ill . Rev. Stat. , Chapter 24 Paragraph 11-135-1, et. seq. (1981) , as
Y amended), Article VII, Section 10 of the Illinois Constitution of 1970, and
� 2 _
the Intergovernmental Cooperation Act, as amended (Ill Rev. Stat , Chapter
127, Paragraph 741, et seq. (1981) as amended) , the Commission and the Munici-
pality are authorized to enter into this Contract; and
WHEREAS, by the execution of this Contract, the Municipality is
surrendering none of its rights to the ownership and operation of its 'Munici-
pal System, except as expressly limited in this Contract, nor is the Commis-
sion surrendering any of its rights to the ownership and operation of its
Waterworks System, but each expressly assert their continued right to operate
such systems; and
WHEREAS, it is known to both parties that the Commission will use
this Contract as the basis for obtaining credit from time to time through the
issuance of the Bonds and for payment of the principal of and premium, if any,
and interest on the Bonds and as the means for the payment of its maintenance
and operating expenses; and for the establishment and maintenance of accounts
and reserves- for such purposes, as may be required in the Bond Resolution
authorizing issuance of Bonds or authorized by applicable statutes; and
WHEREAS, the Municipality recognizes;that the Commission has entered
or will shortly enter into similar contracts with the other Members and may in
the future enter into contracts with other Nonmember Customers and other
customers as may be served from time to time who have Water Allocations:
NOW, THEREFORE, in consideration of the foregoing recitals and of
the mutual covenants and agreements herein contained, the parties hereto here- I
j
by agree as follows:
The preambles hereto are hereby incorporated herein by reference, as
if set out in full . Section numbers and captions are for reference and
convenience only and do not expand or limit the meaning as contained of the
3 _
text of this Contract. A definition in the singular may be used in the
plural , and vice-versa.
1. Definitions. The following words and phrases shall have the
following meanings when used in the Contract, unless the context clearly indi-
cates a different meaning:
"Aggregate Costs" means Operation and Maintenance Costs, Fixed
Costs, Underconsumption Costs, and Member Reimbursement Costs, collectively,
as herein defined.
"Bonds" means the Commission's obligations which are payable from
the revenues of the Waterworks System, whether in the form of bonds, notes, or
other evidences of indebtedness, in whatever original principal amount,
together with any such additional obligations authorized by statute to be
issued by the Commission from time to time and refunding obligations issued to
refund other obligations.
"Bond Resolution" means the Commission's bond resolution or bond
resolutions or bond ordinance or bond ordinances under which the Commission
will authorize the issuance of and issue Bonds.
"Chicago Water Supply Contract" means the water supply contract
between the Commission and the City of Chicago as amended or supplemented from
time to time.
"Commission" means the DuPage Water Commission.
"Contract" means this contract.
i
"Costs of the Project", means with respect to a Project, all costs
of the Project, including costs of the acquisition of necessary lands; ease-
.
ments, and rights-of-way over lands and waters; the erection, construction,
rehabilitation, repair and replacement of pumping, storage or other facili-
ties, and the installation of mains and pipelines; costs of financing and
- 4 -
administration during any period of acquisition, erection, construction,
rehabilitation, repair, replacement or installation, as aforesaid; costs of
repayment of such interim indebtedness as may be incurred for plans, feasi-
bility studies, legal , engineering and financial consultant fees, administra-
tive expenses and property and right-of-way acquisition prior to issuance of
Bonds for a Project; and costs for such other purposes, including without
limitation reasonable reserves and working capital , as may be determined by
the Commission.
"Fiscal Year" means the fiscal year of the Commission.
"Fixed Costs" means an amount sufficient at all times to pay the
principal of and premium, if any, and interest on Bonds, to provide reserves
related thereto, to provide an adequate depreciation fund for the Waterworks
System, to comply with the covenants of the Bond Resolution, to carry out the
corporate purposes and powers of the Commission, to pay Member reimbursement
costs, and to pay any Underconsumption Costs except as such costs are included
in Operation and Maintenance Costs as provided in Section 10 of this Contract;
and except as any of the above are included in Operation and Maintenance
Costs.
"Full Water Requirements", with respect to a Member or 'Nonmember
Customer, means the amount of System water necessary from time to time to meet
the potable water requirements of all present and future water customers
served by the System of such Member or Nonmember (including municipal use
where applicable) whether within or without the corporate limits of such
Member or Nonmember Customer.
i
"Lake Wafter" means potable, filtered water drawn from Lake Michigan. j
"Member" means any one of the Illinois municipalities as follows:
I
5
Village of Addison Village of Lombard
Village of Bensenville City of Naperville
Village of Bloomingdale Village of Oak Brook
Village of Carol Stream City of Oakbrook Terrace
Village of Clarendon Hills Village of Roselle
City of Darien Village of Villa Park
Village of Downers Grove Village of Westmont
City of Elmhurst City of Wheaton
Village of Glendale Heights Village of Willowbrook
Village of Hinsdale City of Wood Dale
Village of Lisle Village of Woodridge
which become signatory to this Contract or a water supply contract
substantially the same as this Contract on or prior to the cancellation date
set forth in Section 25 hereof.
"Member Advances means payments made by one or more Members for the
purpose of paying all or a part of Costs of the Project as provided in Section
7 of the Contract.
"Member Reimbursement Costs" means an amount sufficient at all times
I
to repay the Member Advances together with interest thereon as provided in
Section 7 of the Contract.
"Minimum Take or Pay Requirement" means a requirement that a certain
minimum amount of Lake Water from the Waterworks System will be taken or, if
i
not taken, will be paid for on the same basis as if taken, i
"Municipality" means the City or Village of
"Municipal System" means the Municipality's System.
"Nonmember Customer" means a customer of the Waterworks System which
has a water allocation, is not a Member and is served pursuant to written
i
i
6
Agreement with the Commission, which agreement provides for such customer to
either take its Full Water Requirements from the Waterworks System or contains
a Minimum Take or Pay Requirement and which agreement provides for prices and
terms of payment, Force Majeure and Commission Defaults substantially the same
as Sections 6, 13, 14, and 15 hereof (which provisions may relate to a 'Full
Water Requirements agreement or a-Minimum Take or Pay Requirement agreement as
the case may be). "Nonmember Customer" may include an Illinois municipality
which has joined the Commission but is not a "Member" under the definition set
forth herein.
"Operation and Maintenance Costs" means amounts payable under the
Chicago Water Supply Contract, but not including Underconsumption Costs except
as provided in Section 10 of this Contract, and similar water supply con-
tracts, and all expenses .incurred in the administration, operation, and main-
tenance of the Waterworks System. Upon the adoption of a Bond Resolution by
the Commission in connection with the sale of Bonds, Operation and Maintenance
Costs .shall in any month at least be equal to the amount required to be de-
posited in that month into the operation and maintenance fund or account
created under the Bond Resolution.
"Project" means any acquisition or construction related to the
Waterworks System including initial acquisition and construction thereof and
ail future acquisition, construction, repair or replacement or extension
thereof.
I
"System" means the waterworks system or combined waterworks and
sewerage system (if such systems are combined for financing and accounting
purposes) from time to time of a Member or Nonmember Customer.
"Trustee" means the trustee provided in the Bond Resolution.
f
- 7 - i
i
C
"Water Allocation" means, with respect to a Member or Nonmember Cus-
tomer, such Member's or Nonmember Customer's allocation and allowable excess
from time to time of Lake Water pursuant to the Level of Lake Michigan Act, as
amended from time to time (Ill . Rev. Stat. , Chapter19, Paragraph 119, et seg.
(1981), as amended) Illinois Department of Transportation Administrative
Opinion Order Nos. LMO 80-1, .LMO 80-4 and subsequent orders of the State of
Illinois Department of Transportation; provided, however, that prior to the
effective date of the first allocation of Lake Water under said orders, the
allocation of Lake Water ending September 30, 1985 shall be deemed to be the
Member's or Nonmember Customer's "Water Allocation".
"Waterworks System" means all the Commission''s facilities, including
land, easements, rights-of-way over lands and waters, pumping, storage and
other facilities, mains and pipelines acquired and used for the purposes of
providing and transmitting Lake Water from the City of Chicago's water supply
system to the Members, Nonmember Customers and other customers substantially
in accordance with the plans and project description attached hereto as
Exhibit 1 as the same may be modified, amended and supplemented from time to
time by the Commission in its sole discretion to serve the needs of its
Members.
"Underconsumption" means the amount, if any, for any year, by which
the amount of Lake Water delivered to a Member, Nonmember Customer or other
i
customer is less than fifty percent of its then current Annual Water Allocation.
"Underconsumption Costs" means any amount which the Commission is
obligated to pay under the Chicago Water Supply Contract solely by reason of
failure to accept delivery of the minimum quantity of Lake Water that the
Commission is obligated to purchase under the Chicago Water Supply Contract.
_ 8 _
2. Water Supply. Subject to the provisions of this Contract, the
Commission shall sell to the Municipality and the Municipality agrees to pur-
chase from the Commission an amount of Lake Water necessary from time to time
to serve its present and future Full Water Requirements. The Commission's
obligation, however, to deliver Lake Water hereunder shall be limited to a
maximum annual amount equivalent to the Municipality's then current Water
Allocation, and provided further that the maximum rate of take Water that the
Commission shall be required to deriver to the Municipality in any one hour
shall be an amount equal to 1.7 times the Municipality's Water Allocation as
determined on an hourly basis.
The Commission shall use its best efforts to remain in a position to
furnish Lake Water as herein contracted to be sold to the Municipality, but
its obligation hereunder shall be limited by (a) the amount of Lake Water from
time to time available to the Commission; (b) contracts between the Commission
and its other Members, and other customers; (c) the capacity of the Waterworks
System; and (d) ordinary transmission loss, including standard metering error,
between the Commission's source of supply and the points of delivery. The
Commission shall not enter into contracts with Nonmember Customers or other
i
customers that would cause the Commission to be obligated to sell water in
excess of the lesser of Waterworks System capacity, or the maximum amount of
Lake Water available under the Chicago Water Supply Contract.
The Commission undertakes to use reasonable care and diligence to
provide a constant supply of Lake Water as herein provided for, but reserves
the right at any time to turn off the Lake Water in its mains for emergency
i
and maintenance purposes. The Commission shall give to the Municipality
forty-eight (48) hours' notice of any such turn-off, except that in
- 9 _
emergencies it shall: give notice which is <reasonable under the particular
circumstances
If it becomes necessary for the Commission to limit its delivery of
Lake Water to all its Members, Nonmember Customers or other customers for- any
reason, the Municipality shall be entitled to the fullest extent possible to
receive during such period of curtailment its pro rata share of Lake Water
available as determined by the ratio of its total Lake Water use during the
prior Fiscal Year to the sum of Lake Water use during the prior Fiscal Year of
all Members, Nonmember Customers and other customers entitled to Lake Water
during such period of curtailment. Nothing in this Contract shall be
construed to prohibit the Municipality from serving its customers in cases of
emergency, or when the Commission for whatever reason is unable to meet the
Municipality's Full Water Requirements, from any source including wells owned
by the Municipality and maintained for emergency use in accordance with the
applicable rules of the Illinois Department of Transportation.
The Commission further undertakes to provide in the Chicago Supply
Contract and similar water supply contracts that all Lake Water delivered to
the Commission under said contracts shall be of such quality, at the point of
delivery to the Commission under said contracts, as to meet the requirements
of any Federal , State or local agency as shall have jurisdiction from time to
time for the operation of public water supplies. The Commission shall supply
the Municipality with Lake Water of a quality commensurate with that furnished,
other Members, and meeting state and federal water quality standards. The
Commission bears no responsibility for the contamination of Lake Water or
deterioration of water quality occurring beyond the points of delivery to the
Municipality.
_ 10
3. Storage,' Delivery, Distribution and Conservation. The Chicago
Water Supply' Contract -requires the Commission to provide for and maintain
water storage within the Waterworks System and participating municipalities
collectively of sufficient capacity to store not 'less than two times the
Annual average daily water demands (including operable shallow well capacity
which may be counted towards meeting up to 10% of the storage requirements)
In the event the City of Chicago enforces the minimum water storage standards
and thereby requires the Commission to provide additional water storage and
capacity, the Municipality agrees to use its best efforts to increase the
water storage capacity of its Municipal System; but in no event shall the
Municipality be required to increase the water storage capacity contained in
its Municipal System (including its operable shallow well capacity which may
be counted towards meeting up to 10% of its storage requirements) to an amount
more than twice the amount of its then Annual average daily water demand, less
that portion of the Commission's storage capacity in its Waterworks System
equal to the Municipality's Annual average daily water demand divided by the
total Annual average daily water demands of all Members, Nonmember Customers
and other customers (to the extent that such Nonmember Customers and other
customers are included as parties for whom storage must be provided and main-
tained under the provisions of the Chicago Water Supply Contract) .
The points of delivery shall be defined as the points of outlet
where the Lake Water delivered hereunder leaves the Waterworks System and
enters the Municipal System. The Municipality shall receive its supply of
Lake Water at the receiving facilities of the Municipal System through a
device designed to prevent back flows into the Waterworks System. The
Commission, at its expense, shall provide ,equipment at the points of delivery
for the increase and decrease of Lake Water pressures for introduction of Lake
_ 11 _
Water into the Municipal System at optimum pressures. Said equipment shall
have adequate design capacity to deliver Lake Water to the highest elevations
- of the Municipality's elevated water storage tank facilities. The plans and
specifications for said equipment shall be subject to the Municipality's
review and approval , which shall not be unreasonably withheld. Said equipment
shall be designed and constructed in a manner compatible with the Municipal
System. After its installation, such equipment shall be owned by the Munici-
pality and operated and maintained by the Municipality at its expense.
The Municipality agrees to operate its Municipal System from the
points of delivery on to the consumer in such a manner as to at no time place
the Commission and the Waterworks System in jeopardy of failing to meet
(1) the regulations of any agency or governmental authority having jurisdic-
tion for its operation of public water supplies or (2) the commitments the
Commission has to Members, Nonmember Customers and other customers, and to its
water suppliers. The Municipality also agrees to notify the Commission as
promptly as possible of all emergency and other conditions which may directly
or indirectly affect the quantity or quality of the Lake Water received here-
under or the Waterworks System.
The Municipality shall take measures to conserve and prevent waste
of Lake Water, as required under its Water Allocation.
4. Measuring Equipment: The Commission shall furnish, install ,
operate, maintain, repair and replace, at its own expense, at the points of
delivery the necessary equipment and devices of a type meeting the standards
of the American Waterworks Association for measuring properly the quantity of
Lake Water delivered under this Contract, together with such structures as the
Commission shall deem necessary to house such equipment and devices. Such
meter or meters and other equipment so installed and structures so constructed
12 _
shall remain the property of the Commission. Such structures and equipment
shall be located at sites selected and provided by the Municipality for such
purpose. Both the Commission and the Municipal-ity shall have access to such
structures and equipment for examination and inspection at all reasonable
times, but the reading for billing purposes, calibration and adjustment
thereof shall be done only by the employees or agents of the Commission. For
the purpose of this Contract, the official record of readings of the meter or
meters shall be the journal or other record book of the Commission in its
office in which the records of the employees or agents of the Commission who
take the readings are or may be transcribed. Upon written request of the
Municipality, the Commission will give the Municipality a copy of such journal
or record book, or permit the Municipality to have access thereto in the
office of the Commission during regular business hours.
At least once in each fiscal Year, the Commission shall calibrate
its meters if requested in writing by the Municipality to do so, in the
presence of a representative of the Municipality, and the parties shall
jointly observe any adjustments which are made to the meters in case any
adjustments shall be necessary, and if any check meters as hereinafter pro-
vided for have been installed, such meters shall also be calibrated by the
Municipality in the presence of a representative of the Commission and the
parties shall jointly observe an adjustment in case any adjustment is
necessary.
The Municipality may, at its option and its own expense, install and
operate a check meter to check each meter installed by the Commission, but the
measurement of Lake Water for the purpose of this Contract shall be solely by
the Commission's meters, except in the cases hereinafter specifically provided
to the contrary. All such check meters shall be of standard make and shall be
13 - f
. i
subject at all reasonable times to inspection and examination by any employee
or agent of the Commission, but the calibration and adjustment thereof shall
be made only by the Municipality, except during any period when a check meter
may be used under the provisions hereunder for measuring the amount of water
delivered, in which case the calibration and adjustment thereof shall be made
by the Commission with like effects as if such check meter or meters had been
furnished and installed by the Commission.
Notwithstanding the foregoing, if either party at any time observes
a variation between a delivery meter and a check meter, if any such check
meter shall have been installed, or any other evidence of meter malfunctions,
such party shali promptly notify the other party and the parties hereto shall
-then cooperate to procure an immediate calibration test and adjustment of such
meter to accuracy and shall jointly observe any such adjustment.
Each party shall give the other party forty-eight (48) hours' notice
of the time of all tests of meters (which tests shall be conducted during
normal working hours) so that the other party may conveniently have a repre-
sentative present. If said representative is not present, at the time set in
such notice, calibration and adjustment may, notwithstanding any other "provi-
sion of this paragraph, proceed in the absence of said representative.
If, upon any test,- the percentage of inaccuracy of any meter is
found to be in excess of two percent (2%) registration thereof shall be
corrected by agreement of the parties based upon the best data available, for
a period extending back to the time when such inaccuracy began, if such time
t is ascertainable, and if such time is not ascertainable, then for a period
extending back one-half (1/2) of the time elapsed since the last date of cali-
bration, but in no event further back than a period of six (6) months. If for
any reason any meters are out of service or out of repair so that'the amount
14 -
of water delivered cannot be ascertained or computed from the reading thereof,
the Lake Water delivered during the period such meters are out of service or
out of repair shall be estimated and agreed upon by the parties hereto upon
the basis of the best data available. For such purposes, the best data avail-
able shall be deemed to be the registration of any check meter or meters if
the same have been installed and are accurately registering. Otherwise, the
amount of Lake Water delivered during such period may be estimated (i) by
correcting the error if the percentage of the error is ascertainable by cali-
bration tests or mathematical calculations, or (ii) if the error is not ascer-
tainable by calibration tests or mathematical calculation, by estimating the
quantity of delivery by considering deliveries during preceding periods under
similar conditions when the meter or meters were registering accurately.
5. Unit of Measurement: The unit of measurement for Lake Water
delivered hereunder shall be gallons of water, U.S. Standard Liquid Measure,
and all measuring devices shall , unless the parties otherwise agree, to be so
calibrated. In the event that it should become necessary or desirable to use
other units of measurement, the basis of conversion shall be that 7.48 gallons
is equivalent to one (1) cubic foot.
6. Prices and Terms of Payment:
(a) The Municipality shall to pay its share of Operation and Main-
tenance Costs for each month, which shall be that proportion of those costs
for such month which the quantity of Lake Water delivered by the Waterworks
System to the Municipality for such month bears to the total quantity of Lake
Water delivered to all Members and Nonmember Customers in that month. At any
time no Lake Water is being supplied through the Waterworks System to the
Members and Nonmember Customers, the Municipality's share of monthly Operation
and Maintenance Costs shall be that proportion of those costs which the
e 15 v
Revised 1/9/84
f
Municipality's Water Allocation bears to the total Water Allocations of all Members
and all Nonmember Customers required to make Operation and Maintenance Costs payments
during the same period.
(b) Subject to the single limitation on its obligation to pay Fixed
Costs set forth in this subsection, the Mlunicipality agrees to pay its share of Fixed
Costs for each month, which share shall be that portion of Fixed Costs for that month
which the Municipality's Full Water Requirements for the two (2) preceding full Fiscal
Years bears to the stun of the Full Water Requirements of all those Members and the Full
Water Requirements or Mi=—Lun Take or Pay Requirements, as applicable, of all those
Nonmember Customers for the two (2) preceding full. Fiscal Years, who are not relieved
from Fixed Costs payments pursuant to the payment limitation set forth in the last sentence
of this paragraph. Prior to the Commission's delivery of Lake Water to any Member for
two (2) full Fiscal years, the Municipality's share of monthly Fixed Costs shall be that
portion of Fixed Costs which the Municipality's Water Allocation bears to the total Water
Allocation;of Members and Nonmember Customers, who are not relieved from Fixed Costs
payments pursuant to the payment limitation set forth in the last sentence of this para-
graph. Subject to the single limitation on its obligation to pay Fixed Costs set forth
in this paragraph, the Municipality's obligation to make all payment of Fixed Costs
as required hereunder is unconditional and irrevocable, payable without setoff or counter-
claim and irrespective of whether Lake Water is ever furnished, made available or
delivered to the Municipality or whether the Waterworks System is completed, operable
or operating, and notwithstanding suspension, interruption, interference, reduction or
curtailment of the supply of Lake Water. The rights of the Municipality in the event
of the failure by the Comdssion to perform its obligations under this Contract are
governed by Section 14. The Municipality's obligation to pay Fixed Costs hereunder is
subject to the single limitation that, if for any period of time (and only during such
- period) the Commission is in fact supplying the Full Water Requirements_ of bombers
other than the Municipality and the Full Water
-16-
Requirements or Minimum Take or Pay Requirements, as applicable, of Nonmember "
Customers, whose Full Water Requirements and Minimum Take or Pay Requirements
are more than 85% of the sum of the Full Water Requirements of all Members and
the Full Water Requirements or Minimum Take or Pay Requirements, as applic-
able, of all Nonmember Customers,and during such period of time the Commission
is unable to supply any Lake Water to the Municipality, then the Municipality
shall have no obligation to pay Fixed Costs for such period.
(c) The Commission shall notify the Municipality of the
Municipality's share of Aggregate Costs for a month on or before the 10th day
of the following month. The Municipality's share of Aggregate Costs for a
month shall be due and payable and must be received at the offices of the
Commission on the Ist business day of the month following the month of the
Commission's notification.
(d) If any Member or Nonmember Customer shall default in the pay-
ment to the Commission of any part of its share of Aggregate Costs, or any
part of the payment of its share due pursuant to this subsection 6(d) , the
Municipality agrees to pay a share of the amount so in default to the Commis-
sion, which share shall be in the same proportion as the Municipality's share
of the Aggregate Costs for the month prior to the month of the default bears
to the sum of the shares of Aggregate Costs in that month of all Members and
Nonmember Customers not in default. The Municipality's share of defaulted
Aggregate Costs, or such defaulted payment of shares, as the case may be
shall be due and payable Twenty-one (21) days after the Commission's written
demand therefor. The demand shall include the Commission's calculations of
the amount due by the Municipality hereunder. If and when the defaulting
.-. Member or Nonmember Customer makes a payment to the Commission of a defaulted
amount or interest thereon for which the Municipality has made a payment to
I
17
the Commission under this paragraph, the Commission will pay to the Munici-
pality its proportionate share of such amount, including any such interest.
(e) If a Municipality desires to dispute all or any part of any
payments under this Agreement, the Municipality shall nevertheless pay the
full amount of any such payment when due and include with such payment written
notification to the Commission that charges are disputed, the grounds for
dispute and the amount in dispute.
Upon receipt of notification of dispute, representatives of the
Commission shall meet with representatives of the Municipality to resolve such
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, or within a reasonable period from the time the Municipality
knew or should have known of the facts giving rise to the dispute.
(f) If the Municipality shall fail to make any payment required
under this Contract on or before its due date the Municipality shall be in
default, and interest on the amount of such payment shall accrue during the
period of non-payment at the maximum legal rate payable by an Illinois
non-home rule unit, not to exceed the higher of the average effective interest
rate on all series of Bonds of the Commission any of which are then out-
standing plus Two (2%) percent or the prime rate from time to time announced
by the largest commercial bank, measured i`n terms of total assets, located and
doing banking business in the State of Illinois plus Five (5%) percent, from
the date such payment becomes due until paid in full with interest as herein
specified. In the event .such payment is not made within thirty (30) days from
the date such payment becomes due, the Commission may at its option and in its
discretion reduce or discontinue delivery of Lake Water to the Municipality
until the amount due the Commission is paid in full with interest as herein
I
° 18 _ C
P
specified. The Commission shall give the Municipality ten (10) days' notice
of its intention to reduce or discontinue delivery of Lake Water in accordance
with this subparagraph (f) and shall provide the Municipality an opportunity
for a hearing prior to any reduction or discontinuance. If the Commission
reduces or discontinues the delivery of Lake Water under such circumstances,
the Municipality shall', nevertheless, continue to be liable to pay all charges
herein provided for. The rights specified in this paragraph shall be in addi-
tion to all other rights and remedies available to the Commission at law or in
equity for breach of any of the provisions of this Contract.
(g) If the Municipality is in default in any payment due under this
Contract and the default is not cured within Thirty (30) days after the due
date of the defaulted payment, the Commission may, at its option, require the
Municipality, as a further obligation under this Contract, to deposit as
security for the payment of the Municipality's obligations hereunder an amount
determined by the Commission but not exceeding an amount equal to twice the
share of Aggregate Costs payable hereunder for the month preceding the month
of the most recent default. The Municipality's compliance with the Commis-
sion's demand for a security deposit shall be a condition precedent to the
curing of the Municipality's default and the restoration of the Municipality's
Lake Water service, if abated or reduced by reason of the Municipality's de-
fault. The security deposit or any part thereof may, at the Commission's
discretion, be applied to any subsequent default by the Municipality in any
payments due hereunder. If so applied, the Municipality shall provide funds
immediately to restore the security deposit to the amount required by the -
Commission. At the earliest of the end of the term of this Contract, a term
of two years after the curing of the most recent default by the Municipality,
or at such time that the Commission may in its sole discretion determine, any
19 -
security deposit shall be returned to the Municipality if the Municipality has
performed all its obligations under this Contract.
(h) No change making the rates or charges under this Contract less
favorable to the Municipality may be made unless the same change is made in
the similar provisions in contracts entered into with other Members.
(i) Notwithstanding any other provisions of this Contract to the
contrary, the payments required to be made by the Municipality under this
Contract shall be required to be made solely from revenues to be derived by
the Municipality from the operation of the Municipal System. This Contract
shall not constitute an indebtedness of the Municipality within the meaning of
any statutory or constitutional limitation.
(3) Notwithstanding the provisions of Subsection (i)' of this
Section, the Municipality is not prohibited by this Contract from using other
available funds to make the payments required by this Contract.
(k) The Municipality acknowledges that its obligations to make
payments hereunder are of benefit to other Members and Nonmember Customers as
are such obligations of other Members of benefit to the Municipality. Accord-
ingly, the Municipality, in addition to the Commission, Bondholders, a Trustee
i
or other parties by law entitled to enforce the provisions of this Contract,
any three or more Members or Nonmember Customers acting together may enforce
the provisions of this Section, but only if the Commission has not acted to
enforce such provisions within 90 days of failure to make a payment hereunder.
Any rights the Municipality may have as a third party beneficiary under other
Member contracts or Nonmember Customer agreements with the Commission shall be
i
limited in enforcement in the same manner as set forth herein for enforcement
against the Municipality.
20 I
w
(1) The obligation to make any and all payments under this- Contract
shall begin the second month after this Contract is not subject to
cancellation pursuant to Section 25 of this Contract.
7. Member Advances and Member Reimbursement Costs.
Member Advances, the repayment thereof, and the determination of
Member Reimbursement Costs are provided for as follows:
(a) For the purpose of the initial acquisition and construction of
the Waterworks System, the Commission shall permit, and for any
subsequent Project the Commission, in its discretion, may permit, Member
Advances pursuant to this section.
(b) When Member Advances are to be permitted, the Commission shall
adopt for such Project an estimate of the Costs of the Project and shall
allocate, for purposes of this section, such Costs of the Project among
the Members on any reasonable basis chosen by the Commission.
(c) The Commission shall notify the Members of the allocation, and
each Member shall have the right but not the obligation to pay to the
-
Commission as a Member Advance all or a part of an amount of money not
exceeding 120% of its allocation, subject to the following conditions:
(i) Such Member Advance must be made on or before July 1,
1985, for the initial acquisition and construction Project and on or
before such time- as the Commission may determine for any other
Project for which a Member Advance is permitted.
(ii) A Member Advance may be made only in integral multiples of
$10,000,
(d) The Commission shall deposit Member Advances received pursuant
to this section in escrow established pursuant to the terms and con-
ditions as follows:
21 '
(i) Such escrow shall be held pursuant to agreement by a
financial institution as the Commission may select.
(ii) The amounts deposited in escrow shall be invested by the
Commission in any lawful investment for a non-home rule unit of the
State of Illinois. During the 'term of the escrow, interest shall be
paid at regular intervals and at the time of termination of the
escrow as provided in subparagraph (iii) of this section by the
Commission to the Members pro rata in accordance with the amounts of
their respective Member Advances.
(iii) Such escrow shall continue in existence until the Com-
mission (A) issues Bonds to pay Costs of the Project for the Project
for which such Member Advances were made; (B) adopts a resolution
declaring that such Member Advances, together' with other funds of
the Commission as may be determined by the Commission, are suffi-
cient to pay all of such Costs of the Project;' or (C) does not pro-
ceed with the Project for which such Member Advances were made
within four years of the final date established for the making of
such Member Advances.
(iv) At the time of the issuance of Bonds or the determination
of the Commission as provided in clause (B) of the preceding sub-
paragraph (iii), the amounts of the Member Advances held in such
escrow shall be deposited either into the Construction Fund or
Account created pursuant to the Bond Resolution authorizing such
Bonds or such other Construction Fund or Account as shall be created
by the Commission. At the time of such transfer (hereafter referred
to as the "Transfer Date") , such funds shall become solely funds of
i
- 22
the Commission, and all right, title and interest of the Members in
such funds shall cease.
(v) In the event described in clause (C) of the preceding
subparagraph (iii) the escrow shall terminate and the funds be
returned to the Members pro rata in accordance with the amount of
their respective Member Advances.
(e) Member Advances shall be repaid with interest as follows:
(i) Interest shall begin to accrue on the Member Advances on
the Transfer Date.
(ii) Member Advances shall bear interest on the outstanding
principal from time to time unpaid at the interest rate per annum
equal to the rate for the most recent date shown in the 20 G.O.
Bonds Index of average municipal bond yields as published in the
most recent edition of The Bond Buyer, published in New York, New
York, at the time of the first sale of Bonds for the Project for
which such Member Advances were made or, in the event no sale is
required as provided in subparagraph (d) (iii) of this Section, at
the Transfer Date. In the event such publication or index is not
currently published at the time necessary for such determination
Member Advances shall bear interest as aforesaid at the rate of nine
per cent per annum.
(iii) Interest on the Member Advances shall be paid semi-
annually on May 1 and November 1 of each year commencing on the
first May 1 or November 1 after the Transfer Date.
(iv) Repayments of principal on the Member Advances shall be
made annually on May 1 of each year commencing at the third May 1
after the Transfer Date.
23 _
(v) Repayments of principal of the Member Advances shall be
scheduled in even amounts of $10,000 or an integral multiple thereof
for a period of 27 years including the 'first' and last such repayment
of principal in an amount determined in the reasonable discretion of
the Commission so as to provide a substantially level repayment of
the aggregate of principal and interest due on the Member Advances.
(vi) Interest on amounts of principal due and unpaid on Member
Advances shall continue to bear interest at the rate prescribed for
such principal , but no interest shall accrue on overdue interest.
(vii) Repayment of Member Advances and interest thereon shall
be wholly subordinated to ali other obligations of the Commission of
any kind or nature including, without limitation, .Operation and
Maintenance Costs and Fixed Costs, and shall be paid from such fund
or account, established by the Commission by Bond Resolution or
otherwise which fund or account shall also be wholly subordinated to
such other obligations of the Commission and which may be drawn upon
at any time for the payment of such other obligations as provided by
Bond Resolution or otherwise in the discretion of the Commission.
(viii) In the event the Commission shall default in the pay-
ment of Member Advances or interest thereon, the Members to whom
such advances or interests are owing shall have no right of reduc-
tion, set off or counterclaim as is provided in Section 15 of this
Contract.
(f) All amounts due by the Commission to any Member or Members
under this Section 7, including principal , interest, and overdue interest
shall constitute Member Reimbursement Costs payable under the Contract.
24
8. Special Conditions and Covenants.
(a) The Commission shall proceed promptly with the construction of
the Waterworks System necessary to the performance of its obligations
hereunder. The Commission will make a diligent effort to have its
facilities completed to the point of delivery so as to furnish Lake Water
to the Municipality by January 1, 1988, but the Commission does not here-
by guarantee delivery by such date. The Commission shall not be liable
to the Municipality for any damages occasioned by delay in the commence-
ment of such service to the Municipality, and all payments provided for
under this Contract remain due and payable in accordance with its terms
notwithstanding any such delay. After Lake Water is first tendered for
delivery to the Municipality at any point of delivery, the Commission
shall , subject to the other terms and conditions of this Contract, con-
tinually hold itself ready, willing and able to supply Lake Water to the
Municipality. The Commission shall also use its best efforts, consistent
with its legal obligations to its other Members and Nonmember Customers
and consistent with fair and equitable treatment of all of its Members,
to supply the Municipality with such additional amounts of Lake Water as
may be from time to time allocated to the Municipality over and above its
present Water Allocation, but the Commission does not hereby guarantee a
supply of such additional amounts.
(b) Title to all Lake Water supplied hereunder shall remain in the
Commission to the points of delivery to the Municipal System, and upon
passing the Commission's meter at any point of delivery, title to the
Lake Water shall pass to the Municipality.
(c) The Commission shall use its best efforts to obtain the neces-
sary permitsi and contracts for labor and material , and to borrow funds
- 25 -
and issue its Bond therefor in order to acquire and construct the Water-
works System. The Commission shall use its best efforts to borrow funds
and issue its Bonds therefor, at one time, in an amount sufficient
(together with expected interest earnings on Bond proceeds prior to dis-
bursement) to pay Eighty-five (85%) Per Cent of the cost of acquiring and
constructing the entire Waterworks System sufficient to serve the needs
of the Members through the year 1990, and shall at such time as it may
determine provide in due course for the payment of all cost of acquiring
and constructing the Waterworks System.
(d) Obtaining water is an essential item of expense of its
Municipal System. To the fullest extent permitted by law or contract,
all of the Municipality's payments to be made hereunder shall constitute
operating expenses as to any and all revenue bonds of the Municipality
which are supported in whole or in part by a pledge of the revenues of
its Municipal System, with the effect that the Municipality's obligation
to make payments from its water revenues under this Contract has priority
over its obligation to make payments of the principal of and premium, if
any, and interest on any such bonds which are or will be supported in
whole or in part by a pledge of the Municipal System revenues. The
Municipality shall make all budgetary, emergency and other -provisions and
appropriations necessary to provide for and authorize the prompt payment
by the Municipality to the Commission of its shares of Aggregate Costs
The obligations under this Contract are further payable from all other
accounts of the Municipal System in which there are lawfully available
funds. In any further revenue bond ordinances or resolutions hereafter
enacted by the Municipality, the priority of lien established pursuant to
this Contract shall be expressly provided and set forth in said bond
- 26 -
w
ordinances or resolutions. If legal action is brought against the
Municipality challenging the priority of the Municipality's obligations
hereunder over the lien of any revenue bonds supported by a pledge of the
revenues of the Municipal System, the Commission shall , if requested to
do so by the Municipality, and provided the Municipality is not in de-
fault, undertake the defense of the legal action at the Commission's
expense.
(e) The Commission will carry insurance or maintain risk management
protection on the Waterworks System of the kinds and in the amounts which
are customarily carried or maintained by parties operating similar pro-
perties, including, without limiting the generality of the foregoing,
fire and other casualty, and public liability insurance or protection.
Public liability insurance or adequate reserves under a risk management
program shall be in an amount to provide coverage of not less than Five
Million ($5,000,000) Dollars.
9. Additional Municipality , Covenants. The Municipality further
covenants as follows:
(a) It will operate and maintain the Municipal System, and all
improvements and extensions of the Municipal System, in good repair and
working order, will operate the same efficiently and faithfully, and will
punctually perform all duties with respect to the Municipal System as may
be required by the Constitution and laws of the State of Illinois and all
other applicable laws and by all resolutions and ordinances of the
Municipality.
(b) It will establish, maintain, revise as necessary and collect,
E rates and charges for customers of the Municipal System as shall be re-
quired from time to time to produce revenues at least sufficient (i) to
27
.:,,pay all amounts due under this Contract and to pay all other costs of
operation and maintenance of the Municipal System, (ii) to provide an
adequate depreciation fund for the Municipal System, (iii) to make all
deposits in all funds and accounts required by the terms of resolutions
or ordinances authorizing bonds payable from revenues of the Municipal
System and (iv) to pay the principal of and interest on all bonds of the
Municipality payable from the revenues of the Municipal System. The
rates and charges for customers of the Municipal System shall not be
required, however, to be sufficient to produce amounts required to make
payments under this Contract so long as available amounts sufficient for
making such payments for the next Six (6) months or the remainder of the
Municipality's fiscal year, whichever is longer, have been set aside in
c«sh or investments in a separate account . in the Municipal System Fund
designated for the purpose of making payments under this Contract.
(c) It will provide for the segregation of all revenues of the
Municipal System in such Municipal System Fund and provide for the appli-
cation of the revenues for the purpose of Subsection (b) of this Section.
(d) Any resolution or ordinance of the Municipality which
authorizes the issuance after the date of this Contract of any obligation
of the Municipality to be paid from revenues of the Municipal System will
expressly provide that revenues of the Municipal System may be used to
pay principal of and premium, if any, and interest on those obligations
only to the extent that those revenues exceed the amounts required to pay
the operation and maintenance expenses of the Municipal System including
all amounts payable from time to time under this Contract.
- 28 -
(e) From time to time it will take steps reasonably necessary so
that the Municipal System may at all times be operated properly and
advantageously.
(f) It will make and keep proper books and accounts (separate and
apart from all other records and accounts of the Municipality) in which
complete entries shall be made of all transactions relating to the
Municipal System, and, within two hundred ten (210) days following the
close of each fiscal year of the Municipality it will cause the books and
accounts of the Municipal System to be audited annually by independent
certified public accountants, showing the receipts and disbursements on
account of the Municipal System.
(g) It will continue to own and possess the Municipal System and
will dispose of property which is part of the Municipal System only to
the extent that such property is no longer useful or profitable in the
operations of the Municipal System (provided, however, that the disposi-
tion of ownership or possession of the Municipal System to another Member
or the Commission is not prohibited) .
(h) It will carry insurance or maintain risk management protection
on the Municipal System of the kinds and in the amounts which are cus-
tomarily carried or maintained by parties operating similar properties,
including, without limiting the generality of the foregoing, fire and
other casualty and public liability insurance or protection. All monies
received for loss under the insurance policies or risk management pro-
tection shall be used in making good the loss or damage in respect of
which they were paid except to the extent that the property damaged or
lost would be permitted to be disposed of under subsection (g) of this
Section, whether by repairing the property damaged or replacing the
29 -
property destroyed, and provision for making good such loss or damage or
replacing the property destroyed shall be made within ninety (90) days
from date of loss. The proceeds derived from any and all policies or
risk management protection for public liability shall be credited to an
account for payment of operation and maintenance of the Municipal System
and used in paying the claims on account of which they were received.
(i) It will adopt a budget or appropriations ordinance for each
fiscal year of the Municipality in accordance with applicable state laws
providing for payment of all sums anticipated to be due to the Commission
during the Municipality's fiscal year.
(j) It will use its best efforts to continue serving all customers
of the Municipal System within the Municipalities which are served as of
tF.e date of this Contract.
(k) It will use its best efforts to obtain or retain, from time to
time, "a- Water Allocation at least equal to but not in excess of two times
its Full Water Requirements from time to time.
(1 )The Municipality shall not combine its existing separate water-
works system with its separate sewerage system or separate its existing
combined waterworks and sewerage system into separate systems before May
1, 1990. Thereafter, the Municipality may combine its waterworks system
with its sewerage system or separate its combined waterworks system and
sewerage system into separate systems only on the conditions as follows:
(i) the Municipality shall provide the Commission with written evidence
that the proposed combination or separation will not materially and
adversely affect the Municipality's ability to comply with all of the
terms, conditions and covenants of this Contract; and (ii) if the Commis-
sion shall then determine the proposed combination or separation will not
30 -
materially and adversely affect the Municipality's ability to comply with
all of the terms, conditions and covenants of this Contract, then and
only then the Commission shall approve such combination or separation and
advise the Municipality in writing.
10. Election as to Water Purchase Requirements. When and if the
Commission pays in full all of its Bonds, the Municipality may elect to there-
after purchase from time to time less than its Full Water Requirements from
the Commission. In the event the Municipality elects to purchase less than
its Full Water Requirements in any year pursuant to this Section, it shall pay
a share of Underconsumption Costs, if any, incurred for such year and the
Municipality's share of such Underconsumption Costs shall be deemed to be
Operation and Maintenance Costs under this Contract. The Municipality's share
of Underconsumption Costs, if any, for the year shall be that proportion of
those costs which the Underconsumption of the Municipality for that year was
to the sum of the Underconsumption of all Members and Nonmember Customers for
such year.
11. Abandonment. The Commission by vote of at least Two-thirds of
the Members may elect to terminate acquisition and construction of all or any
part of its Waterworks System prior to its substantial completion. If such
termination would result in delivery of water to some Members but no delivery
of water to others, the affirmative vote to terminate must include more than
Fifty (50%) percent of the Members who would be entirely deprived of Lake
Water from the Commission if such acquisition and construction of the
Waterworks System were terminated. All of the following must occur before
such termination.
(a) The Commission shall have found that the cost of substantial
completion of the Waterworks System would so greatly exceed original
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estimates of that cost that it would not be economically feasible for the
Members together to pay the Fixed Costs which would be payable after
substantial completion.
(b) The Commission and each Member shall _have been provided with a
certificate from a consulting engineer and a certificate from an indepen-
dent financial consultant to the effect that they each concur with the
finding of the Commission described in Subsection (a) of this Section;
and
(c) The Members and any Trustee appointed under a Bond Resolution
of the Commission shall have been given ninety (90) days' notice of the
proposed termination of acquisition and construction of all or any part
of the Waterworks System.
(d) If the Commission terminates acquisition and construction of
the Waterworks System pursuant to this Section, the following provisions
shall apply:
0) The obligations of the Municipality and any other Member
to make the payments required for Aggregate Costs under Section 6 of
this Contract or required under Subsection 6(d) of this Contract
shall continue.
(ii) Any one or more of the Members who so elect, jointly (or
through a water commission or joint action agency established by
them) shall have the following rights:
(1) the right, for the duration of their Contracts with
the Commission, to use for water supply purposes any portion of
the Waterworks System then acquired or constructed; and
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(2) the right to have the Commission assign to them any
or all of its construction contracts if they assume the Commis-
sion's obligations under those contracts for uncompleted work,
(iii) The Commission -shall use its best efforts to sell any
assets of the Commission that are not used or acquired by one or
more of the Members pursuant to Subsection (ii) of (d). Proceeds of
any sale shall be applied as provided in the Bond Resolution of the
Commission,
12. Service to Others. Except for this Contract and similar
Contracts entered into between the Commission and other Members, and except as
hereafter provided in Section 21, no Contract for the sale- of Lake Water by
the Commission to any customer shall be entered into unless such Contract
shall first be approved by resolution affirmatively adopted by at -least Two-
thirds of the Members. No such Contract for the sale of Lake Water to any
such customer shall contain rates or charges equivalent to or more favorable
than those provided in this Contract without the unanimous approval of the
Members.
13. Force Majeure. In case by reason of "Force Majeure" either
party hereto shall be rendered unable wholly or in part to carry out its obli-
gation under this Contract, then if such party shall give notice and full
particulars of such "Force Majeure" in writing to the other party within a
reasonable time after occurrence of the event or cause relied on, the obliga-
tion of the party giving such notice, so far as it is affected by such "force
Majeure shall be suspended during the continuance of the inability then
claimed, but for no longer period, and any such party shall endeavor to remove-
or overcome such inability with all reasonable dispatch. The term "Force
Majeure" as employed herein shall mean acts of God, strikes, lockouts or other
33 -
industrial disturbances, acts of public enemy, _orders of any kind of the
Government of the United States, of the State of Illinois, or of any civil or
military- authority, insurrections, riots, epidemics, landslides, lightening,
earthquakes, fires, hurricanes, storms, floods,- washouts, droughts, arrests,
restraints of government and people, civil disturbances, explosions, breakage
or accidents to machinery, pipelines, canals, or tunnels, partial or entire
failure of water supply, and inability on the part of the Commission to de-
liver Lake Water hereunder, or of the Municipality to receive Lake Water here-
under, on account of any other causes not reasonably within the control of the
party claiming such inability. The settlement of strikes and lockouts shall
be entirely within the discretion of the party having the difficulty and that
the above requirement that any "Force Majeure" shall be remedied with all
reasonable dispatch shall not require the settlement of strikes and lockouts
by acceding to the demands of the opposing party or parties when such settle-
ment is unfavorable to it in the judgment of the party having the difficulty.
No "Force Majeure" which renders any of the parties unable to perform under
this Contract shall relieve the Municipality of its obligation to make pay-
ments to the Commission as required under Section 6.
14. Commission Defaults. Failure by the Commission to deliver Lake
Water to the Municipality as required by this Contract or failure of the Com-
mission to perform any other obligation under this Contract and the continua-
tion of that failure to perform for thirty (30) days after written notice from
the Municipality to the Commission of such failure shall be a default of the
Commission under this Contract, unless any such failure is excused pursuant to
Section 13 of this Contract. If the Commission defaults under this Contract,
the Municipality may bring any action against the Commission, including an
action in equity and actions for mandamus and specific performance of the
34
Commission's obligations to the extent allowed by law. Election of any remedy
shall not be a waiver of any other remedy. The Commission will issue its
Bonds in specific reliance on the limitations set forth in this Section with
respect to the rights of the Municipality.
15. Municipality's Obligation Unconditional . The Municipality
shall have no right to terminate, cancel or rescind this Contract, no right to
withhold from the Commission or the Trustee who is an assignee of the Commis-
sion pursuant to Section 17 of this Contract payments due- or to become due
under this Contract, no right to recover from the Commission or such Trustee
amounts previously paid under this Contract unless paid in error or contrary
to the provisions of this Contract, no right of reduction or set-off against
the amounts due or to become due under this Contract, to the Commission or
such Trustee, and no lien on any amounts in any fund established by the Com-
mission or such Trustee for any reason or on account of the existence or
occurrence of any event, condition or contingency, whether foreseen or unfore-
seen or foreseeable or unforeseeable by the Municipality or the Commission or
any other person; including by way of illustration and not limitation by
reason of the fact that the Waterworks System in whole or in part is not
completed, operable or operating; the output. of the Waterworks System in whole
or in part is suspended, interrupted, interfered with, reduced or curtailed;
any party to the Chicago Water Supply Contract, including the City of Chicago,
does not perform in whole or in part thereunder; the Water Allocation of the
Municipality or any other Member or any Nonmember Customer is modified or
terminated or any Member or Nonmember Customer does not perform in whole or in
part under this Contract; or any other agreement or instrument; it being the
t intent hereof that the Municipality shall be -absolutely and unconditionally
obligated to make all payments hereunder excepting the single limitation set
35
forth in the last sentence of Section 6(b). Election of any remedy shall not
be a waiver of any other remedy. The Commission will issue its Bonds in
specific reliance on the limitations set forth in this Section with respect to
the rights of the Municipality.
16. Modification. Except for revisions and adjustments expressly
provided for herein, this Contract may be changed or modified only with the
consent of the governing bodies of the Commission and the Municipality. Such
modification may be requested by either party, in which event a joint meeting
of representatives of such governing bodies shall be held not more than ninety
(90) days after the giving of such notice, at which joint meeting the re-
quested changes or modifications shall be considered and discussed. No such
change or modification may materially impair or adversely affect the ability
or obligation of the Municipality under the Contract to make payments to the
Commission at the times, in the amounts, and with the priority required in
order for the Commission timely to meet its obligations under this Contract,
the Chicago Water Supply Contract, other water purchase or sale contracts of
the Commission and the Bond Resolution, including without limitation the
making of all deposits in various funds and accounts created under the Bond
Resolution; or materially impair or adversely affect the ability of the
holders of the Bonds or the Trustee, under the Contract or Bond Resolution, to
enforce the terms of the Contract. No such change of modification which will
affect the rights and interest of the holders of the Bonds shall be made
without the written approval of an authorized representative of the holders of
at least Seventy (70%) percent of the outstanding Bonds and no such change or
modification shall be effective which would cause a violation of any provi-
sions of the Bond Resolution, any ordinance authorizing bonds of the
Municipality or provisions governing Members who have made Member Advances.
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17. Non-Assignability. Except to the extent hereinafter provided,
neither party shall assign or transfer this Contract or any rights or in-
terests herein without the written consent of the Municipality and the Com-
mission. At any time prior to the sale of the first Bonds to be issued by the
Commission, the Commission may assign or transfer this Contract and all rights
and interests herein only in its entirety and only to a water commission duly
organized under Division 135 of the Illinois Municipal Code, as amended (Ill .
Rev. Stat. , Chapter 24, Paragraph 11-135-1, et. seg. (1981) , as amended) ,
consisting only of all the Members, but only if such successor water commis-
sion shall accept without reservation all of the terms, conditions and coven-
ants hereof. The right to receive all payments which are required to be made
by the Municipality to the Commission in accordance with the provisions of
this Contract, including shares of costs and funds on deposit, ma.A.- be assigned
by the Commission to any Trustee as provided in the Bond Resolution to secure
the payment of the principal of, premium, if any, and interest on the Bonds as
those amounts come due, subject to the application of those payments as may be
provided in the Bond Resolution. The Municipality will, upon notice of as-
signment to any such Trustee, make all payments directly to such Trustee. The
rights of the Commission to enforce the provisions of this Contract may be
assigned to such Trustee and, in such event, the Trustee will have the right
to enforce this Contract at law or in equity with or without the further con-
sent or participation of the Commission. The Commission may also retain the
right to enforce this Contract.
18. Municipality Cooperation In Construction of Commission Water
Supply. The Municipality shall to cooperate with the Commission in the con-
struction and acquisition of the Waterworks System. The Municipality shall
grant without charge to the Commission any reasonably required construction
37 -
easements and any easements necessary for portions of the Waterworks System to
be located on Municipality property, provided the Commission agrees to restore
the easement property in a reasonable manner after construction. The Munici-
pality shall grant the Commission access to Municipality property to the
extent reasonably necessary to construct and install the points of delivery
and the appurtenant devices.
19. Mutual Cooperation in Issuance of Commission Obligations. The
Municipality shall cooperate with the Commission in the issuance of the Bonds,
and the Commission shall cooperate with the Municipality in the issuance of
the Municipality's General Obligation Bonds or Revenue Bonds of the Municipal'
System issued for the purpose of fulfilling the Municipality's obligations
under this Contract. In such connection, the Municipality and Commission will
comply with all reasonable requests of each other and will , upon request do as
follows:
(i) Make available financial information about itself.
f
(ii) Consent to publication and distribution of its financial
information. _
(iii) Certify that its financial information is accurate, does not
contain an untrue statement of a material fact and does not omit to state
a material fact necessary in order to make the statements in that
information, in light of the circumstances under which they were made,
not misleading.
(iv) Make available to the certified copies of official proceedings;
and
(v) Provide reasonable certification to be used in a transcript of
closing documents.
38 -
20. Regulatory Bodies. The parties through this Contract, seek to
exercise and maintain all sovereign rights granted to them under and through
the Constitution and Statutes of the State of Illinois. This Contract shall
'be subject to all valid rules, regulations, and laws applicable hereto passed
or promulgated by the United States of America, the State of Illinois, or any
governmental body or agency having lawful jurisdiction, or any authorized
representative or agency or any of them; provided however, that this clause
shall not be construed as waiving the right of either party to challenge the
validity of such rule, regulation, or law on any basis, including the impair-
ment of this Contract.
21. Commission Cooperative Arrangements With Other Water Suppliers.
Notwithstanding any of the provisions of this Contract, the Commission is not
prohibited by this Contract from entering into cooperative arrangements as
approved by Resolution adopted by at least two-thirds of the Members with
other suppliers of water to provide water to each other to meet their water
needs, provided that these arrangements do not interfere, except in emer-
gencies, with the delivery of take Water to the Municipality.
22. Notices. All notices or communications provided for herein
shall be in writing and shall be delivered to the Municipality or the Commis-
sion either in person or by United States mail ,, via registered mail, return
receipt requested, postage prepaid, addressed to the Municipality as follows:
39 -
or addressed to the Commission as follows:
General Manager
DuPage Water Commission
225 Prospect
Elmhurst, Illinois 60126
until and unless other addresses are specified by notice given in accordance
herewith.
23. Severability. Should any part, term, or provision of this
Contract be determined by a court, of competent jurisdiction to be illegal or
in conflict with any law, the validity of the remaining portions or provisions
shall not be affected thereby.
24. Effective Date and Term. This Contract shall become effective
at such time as the Commission and the Municipality shall have executed this
Contract and the Members with total Water Allocations of not less than Fifty-
five - (55) MGD (including the Water Allocation of the Municipality) shall have
executed similar contracts and shall continue in force and effect for a period
of forty (40) years commencing with and running concurrently with the term of
the Chicago Water Supply Contract. The Municipality and the Commission agree
to begin negotiation of a succeeding Water Supply Contract not later than five
(5) years prior to the end of the term of this Contract.
25. Cancellation. This Contract may be cancelled by written notice
from either party to the other after January 31, 1986 if, at the time of
written notice of cancellation, the Commission has not entered into, water
supply contracts with Members having total- Water Allocations of not less than
Fifty-five (55) MGD. Prior to such cancellation, the Contract shall remain in
full force and effect.
40
IN WITNESS -WHEREOF, the parties hereto acting under authority of
their respective governing bodies have caused this Contract to be duly
executed in several counterparts, each of which shall constitute an original ,
.all as of the day and year first above written.
DU PAGE WATER COMMISSION
By
Chairman
ATTEST
General Manager
VILLAGE (CITY) OF oax s x
f
By
ATTEST Village President
-
Clerk
- 41 -
� Y
r'
t
IN WITNESS WHEREOF, the parties hereto acting under authority of
their respective governing bodies have caused this Contract to be duly
executed in several counterparts, each of which shall constitute an original , .
.all as of the day and year first above written.
DU PAGE WATER COMMISSION
Chairman /
AT.TUT
General Manager
VILLAGE OF OAK BRG
i
ATTEST VILLAGE PRESIDENT
erk,
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