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R-1018 - 05/27/2008 - AGREEMENT- WATER - ResolutionsRESOLUTION 2008- AG- WA -EX1 -R -1018 A RESOLUTION APPROVING THE YORKFIELD AREA WATER SYSTEM PURCHASE AGREEMENT BY AND BETWEEN THE CITY OF ELMHURST AND THE VILLAGE OF OAK BROOK WHEREAS, the Village of Oak Brook ( "Oak Brook ") owns and operates a water system known as the Yorkfield Area Water System as described in the Purchase Agreement attached hereto as Exhibit A, and WHEREAS, the City of Elmhurst ( "Elmhurst ") desires to purchase the Water System from Oak Brook substantially in conformance with the Purchase Agreement, and WHEREAS, Oak Brook will sell the Water System to Elmhurst substantially in conformance with the Purchase Agreement 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 The foregoing preambles are restated and incorporated herein by reference as though fully set forth herein Section 2 The Purchase Agreement in the form attached hereto as Exhibit A is hereby approved subject to review and approval of the Village Attorney Section 3 Upon approval of the Village Attorney, the President and the Village Clerk are authorized to execute and attest the Purchase Agreement and such other documents as may be necessary to effectuate the sale of the Water System to Elmhurst Section 3 If any section, paragraph, clause or provision of this resolution shall be held invalid, the invalidity thereof shall not affect any of the other provisions of this resolution Section 4 All resolutions in conflict herewith are hereby repealed to the extent of such conflict Section 5 This resolution shall be in full force and effect from and after its passage, approval and publication as required by law APPROVED THIS 27th day of May, 2008 JoTIA W Craig age President PASSED THIS 27th day of May, 2008 Ayes Trustees Carson, Kennedy, Manofsky, Saived, Sanford and Wolin Nays None Absent None 04P C*3 cou ell , ATTEST Charlotte K Pruss Village Clerk YORKFIELD AREA WATER SYSTEM PURCHASE AGREEMENT By and Between The Village of Oak Brook an Illinois municipal corporation and The City of Elmhurst an Illinois municipal corporation Dated May , 2008 YORKFIELD AREA WATER SYSTEM PURCHASE AGREEMENT THIS AGREEMENT is made and entered into as of this day of May, 2008, by and between the Village of Oak Brook ( "Oak Brook "), an Illinois municipal corporation, and the City of Elmhurst ( "Elmhurst "), an Illinois municipal corporation. RECITALS WHEREAS, Oak Brook owns and operates a water system known as the Yorkfield Area Water System ( "Water System ") in the area depicted in Exhibit 1.23 attached hereto and incorporated herein by reference generally located south of Butterfield Road, east of Euclid Avenue, west of Caldwell Avenue, and north of Roosevelt Road; and WHEREAS, Elmhurst wishes to purchase the Water System upon the terms and conditions set forth in this Agreement; and WHEREAS, Oak Brook is willing to sell the Water System to Elmhurst upon the terms and conditions set forth in this Agreement; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE 1 DEFINITIONS Capitalized terms used and not otherwise defined in this Agreement shall have the respective meanings assigned to such terms as set forth in this Article 1. 1.1 "Agreement" means this Yorkfield Area Water System Purchase Agreement, together with the Schedules and Exhibits attached hereto. 1.2 "Closing" means the Closing of the transaction required by this Agreement conducted in accordance with Article 11. 1.3 "Closing Date" means May 28, 2008, or some other mutually agreeable date selected by the Parties. 1.4 "Construction Work In Progress" means any construction project that is under construction by or at the direction of Oak Brook as of the date of execution of this Agreement. Oak Brook represents and warrants to Elmhurst that it has no Construction Work In Progress in connection with the Water System other than routine maintenance. 1.5 "Contracts" means agreements, contracts, memoranda of understanding, letters of intent and any other form of agreement. N 1.6 "Customer Advances" means donations or contributions in cash, services or property from states, municipalities, other governmental units, individuals, developers or others for capital construction purposes, which are to be refunded in whole or in part. 1.7 "Customer Deposits" means all amounts deposited with Oak Brook by customers as security for the payment of bills. 1.8 "Dispute" has the meaning set forth in Section 14.18.1. 1.9 "Dispute Notice" has the meaning set forth in Section 14.18.2. 1.10 "Elmhurst" means the City of Elmhurst, DuPage County, Illinois, having an address of 209 North York Street, Elmhurst, Illinois 60126. 1.11 "Encumbrance" means any mortgage, pledge, lien, option, conditional sale agreement, security interest, claim, charge or restriction of any kind affecting title. 1.12 "Environmental Claim" means any administrative, regulatory or judicial actions; actions arising under local, state or federal law (including without limitation, claims of trespass, public or private nuisance, waste and breach of standards of care); demands, demand letters, claims, suits (including citizen suits); directives, proceedings or notices by any Governmental Authority or other person alleging, in writing, violations of or liability under any Environmental Laws; seeking to enjoin any activity as inconsistent with any Environmental Laws; or demanding remediation of conditions which, with notice, the passage of time, or both, would constitute violations of any Environmental Laws, arising out of based on or resulting from: (a) The presence, use, generation, treatment, storage, recycling, management, deposit, disposal, leakage, burial, discharge, emission, injection, spillage, seepage, leaching, escaping, emptying, dumping, pumping, pouring, placement or release of any Hazardous Material from, at, in, on or under, or the transport of any Hazardous Material to or from the Water System; or (b) Any loss of or damage to any property, natural resource or the environment, or death of or injury to any person, resulting from or relating in any way to any Hazardous Material that is or was present, used, generated, treated, stored, recycled, managed, transported, deposited, disposed of, buried, discharged, emitted, injected, emptied, dumped, pumped, poured, placed or released, or that leaked, spilled, seeped, leached or escaped, at, on, in, under, to or from the Water System. In the event that an Environmental Claim is aggravated or exacerbated by actions or conditions occurring after the Closing Date it will still be an Environmental Claim, but Elmhurst shall contribute to any Environmental Liabilities in proportion to the actual harm caused by events occurring after the Closing Date. Environmental Claim includes any Environmental Claim made against Oak Brook or against Elmhurst, as a successor in interest to Oak Brook. 1.13 "Environmental Information" means non - privileged written communications or written material, subject to open records, laws, from or to any local, state or federal regulatory 3 agency or an adjacent or nearby landowner (if such landowner asserts a material Environmental Claim) relating to the status of the Water System under applicable Environmental Laws, or any non - privileged written reports arising out of investigations, audits, reviews, studies or other analyses (including Phase I or Phase 11 reports) concerning the environmental status of the Water System. Environmental Information shall be limited to written communications or written material generated during the time period that Oak Brook owned the Water System. 1.14 "Environmental Laws" means: (a) Any local, state or federal law or other statute, law, ordinance, rule, code, regulation, administrative interpretation, guidance document or memorandum, decree or order, and all common law relating to pollution or protection of human health or the environment, or governing, regulating or imposing liability or standards of conduct concerning the manufacture, use, treatment, generation, distribution, transportation, storage, labeling, testing, processing, discharge, disposal or other handling, release or threatened release, control, or cleanup of any Hazardous Material (including, without limitation, the Clean Air Act, 42 U.S.C. §§ 7401 to 7671 q, the Clean Water Act, also known as the Federal Water Pollution Act, 33 U.S.C. §§ 1251 to 1387, as amended by the Water Quality Act of 1987 Pub. L. No. 100 -4 (Feb. 4, 1987), the Toxic Substance Control Act of 1976 ( "TSCA "), as amended, 15 U.S.C. §§ 2601 to 2692, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 to 136y, the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq., the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201, 1202 and 1211, the Comprehensive Environmental Response, Compensation and Liability act of 1980 ( "CERCLA "), 42 U.S.C. §§ 9061 to 9675, as amended by the Superfund Amendment and Reauthorization Act of 1986 ( "SARA "), Public Law 99 -499, 100 Stat. 1613, the Emergency Planning and Community Right to Know Act ( "EPCRA "), 42 U.S.C. §§ 11001 to 11050, the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act ( "RCRA "), 42 U.S.C. § 6901 to 6992k, the Occupational Safety and Health Act as amended ( "OSHA "), 29 U.S.C. § 655 and § 657, the National Historic Preservation Act ( "NHPA "), 16 U.S.C. §§ 470 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1802, together with (b) Any other statute, rule, regulation or order of any Government Authority having jurisdiction over the protection of human health or the environment or the control of Hazardous Materials, wastes or substances, including, without limitation, the United States Environmental Protection Agency, the State of Illinois, or the Parties. 1.15 "Environmental Liabilities" means those liabilities, losses, damages and expenses (including the reasonable costs of investigation, containment, testing, removal, clean -up, abatement or remediation, and reasonable attorneys' fees and costs directly associated therewith) incurred in order to defend against or comply with Environmental Laws or other legally enforceable obligations relating to an Environmental Claim. 4 1.16 "Governmental Authority" means any federal, state or regulatory authority, administrative agency, commission, department, board or court that has jurisdiction over any of the Parties to this Agreement or the Water System. 1.17 "Hazardous Materials" means: (a) Any pollutant, contaminant, toxic or hazardous chemical, waste or substance, including, without limitation, asbestos in any form that is or could become friable, urea formaldehyde insulation, petroleum or petroleum products, manufactured gas waste, polychlorinated biphenyls ( "PCBs"); (b) Any item, article, substance, waste, equipment or container containing or-whose surfaces have been in direct contact with PCBs, air pollutants, water pollutants and other substances defined or listed as hazardous, extremely hazardous, toxic, dangerous restricted or otherwise harmful to human health or the environment under any Environmental Law; or the manufacture, use, treatment, generation, distribution, transportation, storage, labeling, testing, processing, discharge, disposal or other handling, release or threatened release, control or cleanup of which is prohibited, limited or regulated pursuant to any Environmental Law or determined to be hazardous, extremely hazardous, toxic, dangerous, restricted or otherwise harmful to human health or the environment under any Environmental Law. 1.18 "Oak Brook" means the Village of Oak Brook, DuPage County, Illinois, having an address of 1200 Oak Brook Road, Oak Brook, Illinois 60523 -2255. 1.19 "Parties" means Oak Brook and Elmhurst, and "Party" means either Oak Brook or Elmhurst. 1.20 "Permits" means all building permits, certificates of occupancy, certificates of compliance, railroad licenses, permits and crossing agreements, and any other licenses or permits, which are necessary for the operation of the Water System. 1.21 "Person" means an individual, corporation, general or limited partnership, joint venture, trust, unincorporated association, limited liability company, municipal utility, municipal or governmental entity, or any other legal or commercial entity. 1.22 "Purchase Price" means the purchase price to be paid by Elmhurst to Oak Brook for the Water system as set forth in Section 2.4. 1.23 "Water System" means the Water System used to provide water to customers in the Yorkfield Area Water System as shown on Exhibit 1.23. ARTICLE 2 PURCHASE OF WATER SYSTEM 2.1 Agreement to Purchase and Sell. Subject to the terms and conditions of this Agreement, Oak Brook agrees to sell, assign, transfer, deliver or convey to Elmhurst, E and Elmhurst agrees to purchase and accept, the Water System for the Purchase Price in accordance with Section 2.4. 2.2 Description of Water System to be Purchased. The Parties agree that the following approximately, but not specifically, constitutes the Water System to be sold, assigned, transferred or conveyed as follows: 250 feet of 4" cast iron watermain; 23,339 feet of 6" cast iron and ductile iron watermain; 8687 feet of 8" mostly cast iron and ductile iron watermain; 36 — 6" gate valves with a valve box, extension and cover; 13 — 8" gate valves with a valve box, extension and cover; 59 fire hydrants with an auxiliary valve (Mueller); and 340 water service connections. In addition to the Water System, Oak Brook shall deliver, transfer or assign the following but only to the extent that they are in Oak Brook's possession: 2.2.1 Licenses and Permits. All Permits, approvals, authorizations, licenses, orders, registrations, certificates, variances and other similar permits of rights obtained from any Governmental Authority relating to the Water System and all pending applications therefore, if assignable. 2.2.2 Records. Legible copies of those records relating to the operation and maintenance of the Water System, and copies of records on the inspections and testing of hydrants, mains and other portions of the Water System. 2.2.3 Contracts. All contracts necessary for the operation of the Water System, which are listed on Exhibit 2.2.3. 2.2.4 Customer Lists. All customer lists, customer records and meter books for the Water System including a list of street addresses of all properties served to be attached hereto as Exhibit 2.2.4. 2.2.5 Manuals. All manuals, warranty information, research and development files, electronic files and other data relating to the Water System. 2.2.6 Drawings. All drawings, site plans and "as built" plans for the Water System. 2.3 Retained Assets. Notwithstanding Section 2.2 above, the Water System shall not include and Oak Brook shall not sell, transfer or assign to Elmhurst the following: (b) Any cash, accounts receivable, billings, unbilled or unmetered water delivered to water customers prior to the Closing Date. (c) Approximately 340 radio remote read water meters and MTUs (Hexagram "Star" AMR Device) which Elmhurst shall return to Oak Brook as they are disconnected from the Water System. 2.4 Purchase Price. Elmhurst agrees to pay Oak Brook three hundred fifty thousand dollars ($350,000.00) (the "Purchase Price ") in immediately available funds for the Water System. In addition, Elmhurst and Oak Brook shall each pay one -half of the customary and necessary costs of installing new valves or other necessary equipment for the emergency connections described in Section 8 hereof. Elmhurst agrees to 0 complete said work and render Oak Brook a bill for Oak Brook's share of said work which Oak brook shall promptly pay. 2.5 Terms of Payment. The Purchase Price shall be paid by Elmhurst on the Closing Date by certified or cashiers check or federal or other wire transfer of immediately available funds to the account designated by Oak Brook in writing. 2.6 Manner of Transfer. Oak Brook shall, upon payment of the Purchase Price by Elmhurst and as of the Closing Date, sell, assign, transfer, convey and deliver to Elmhurst all right, title and interest of Oak Brook in the Water System in the manner specified in this Agreement, by Bill of Sale in a form attached hereto as Exhibit 2.6. 2.7 Assumption of Liabilities. Except as otherwise set forth in this Agreement, Elmhurst shall not assume any liabilities or obligations of Oak Brook, including, without limitation, the following: (i) any liabilities arising out of Oak Brook's ownership, maintenance or use of the Water System up to 11:59 p.m. on the day immediately preceding the Closing Date, and (ii) any liabilities arising out of Oak Brook's operation of the Water System up to 11:59 p.m. on the day immediately preceding the Closing Date. Except as otherwise set forth in this Agreement, Oak Brook shall not assume any liabilities or obligations of Elmhurst including, without limitation, the following: (i) any liabilities arising out of Elmhurst's ownership, maintenance or use of the Water System on and after the Closing Date, and (ii) any liabilities arising out of Elmhurst's operation of the Water System on and after the Closing Date. Each party shall be solely responsible for their respective liabilities and shall pay, perform and discharge their respective liabilities. 2.8 Recapture Agreement. Notwithstanding anything to the contrary contained in Section 2.7 of this Agreement, Elmhurst acknowledges that Oak Brook has entered into a recapture agreement, a copy of which is attached hereto as Exhibit 2.8 and incorporated herein by reference. As of the Closing Date, Elmhurst shall assume all liabilities and obligations of Oak Brook arising under the recapture agreement and hold Oak Brook harmless from the same. 2.9 Certificate of Necessity. The Parties acknowledge that pursuant to an Order and Certificate of Necessity, a copy of which is attached hereto as Exhibit 2.9, Oak Brook may be obligated to provide water to an unincorporated area (the "Certificated Area ") generally located north of Roosevelt Road and east of the area served by the Water System. Any obligation to provide water to the Certificated Area shall be assumed by Elmhurst and Elmhurst shall hold Oak Brook harmless from any obligation to provide water to the Certificated Area. 2.10 AS ISIWHERE IS Condition. This Agreement is accepted and entered into by Elmhurst on the basis of Elmhurst's own examination and knowledge of the Water System and Elmhurst's opinion as to the condition of the Water System. Elmhurst acknowledges that Elmhurst has had the opportunity to inspect and examine the Water System, that no representations have been made by Oak Brook as to the condition or repair of the Water System, that this purchase is being made upon Elmhurst's express understanding and agreement that the Water System is accepted in "AS IS" and "WHERE IS" condition at the time of Closing. Elmhurst further acknowledges that except for the specific express warranties and representations contained in Article 6 and Article 7 of this Agreement, 7 there are no representations or warranties, express or implied, applicable to this transaction. ARTICLE 3 ASSIGNMENT OF WARRANTIES - r 3.1 Warranties. Oak Brook shall assign all warranties applicable to the Water System or any portion thereof, to Elmhurst, if assignable. All right, title and interest of Oak Brook in such warranties, if assignable, shall be assigned to Elmhurst pursuant to an assignment acceptable to Elmhurst. 32 Warranty Claims. Oak Brook agrees to cooperate with Elmhurst in presenting any warranty claims on Water System, as appropriate. ARTICLE 4 RECORDS AND INFORMATION 4.1 Provision of Facility Records. Prior to Closing, Oak Brook shall provide Elmhurst with legible, readable copies of all drawings (as is reasonably practical based on the conditions of the drawings in Oak Brook's possession), site plans, "as built" plans, maps, operations and maintenance records, materials standards, manuals regarding equipment operation, water quality test results, meter books, customer lists and customer records in Oak Brook's possession and necessary or useful for Elmhurst to operate and maintain the Water System. If any of the records are contained in electronic files, Oak Brook shall provide Elmhurst with a copy of the electronic files in a format that allows Elmhurst to convert the date to Elmhurst's electronic records, if feasible. 4.2 Provision of Certificates, Licenses and Permits. Prior to Closing, Oak Brook shall provide Elmhurst with legible, readable copies of all of Oak Brook's certificates of authority, licenses and permits for the operation of the Water System in Oak Brook's possession. 4.3 Review of Records. Elmhurst may review other information and records relating to the Water System in Oak Brook's possession at the business locations where such other information is normally located, during normal business hours, and upon reasonable notice. In the alternative, such other information and records may be provided in electronic form or hard copy, as the Parties may agree. 4.4 Costs Associated with Records. Neither Party shall charge the other for any costs associated with complying with this Article. ARTICLE 5 ENVIRONMENTAL MATTERS AND INSPECTIONS 5.1 Environmental Information. Not later than the Closing Date, Oak Brook shall provide Elmhurst with all Environmental Information concerning the Water System in Oak - Brook's possession or control. 5.2 Continued Environmental Reporting. To the extent that Environmental Information is not available prior to the Closing Date, Oak Brook shall provide Elmhurst with any Environmental Information with respect to the Water System as such information is received or completed by Oak Brook. 5.3 Pre - Closing Inspection. At a reasonable time, pre- approved by Oak Brook within seven (7) days before the Closing Date, Elmhurst shall have the right to inspect the Water System to confirm that there has been no significant damage to the condition of the Water System, taken as a whole, after the date of this Agreement. If Elmhurst, reasonably and in good faith, determines that there has been such significant damage to the condition of the Water System, taken as a whole, after the date of this Agreement, then Elmhurst shall immediately notify Oak Brook of such event. In which event Oak Brook shall have the option to terminate this Agreement without any liability or further obligation to either party, unless Oak Brook and Elmhurst can work out a mutually acceptable resolution with respect to repairing such damage. ARTICLE 6 OAK BROOK'S REPRESENTATIONS AND WARRANTIES For purposes of Article 5 and Article 6, Oak Brook shall be deemed to have "knowledge" of a fact or matter pertaining to the accuracy of any representation or warranty contained in this Agreement if any one or more of the employees or representatives of Oak Brook is actually aware of that fact or matter. Oak Brook hereby represents and warrants to Elmhurst as follows: 6.1 No Other Interests in Water Systems. Except for Elmhurst, no person, firm or entity has any rights to acquire or lease all or any portion of the Water System, or otherwise to obtain any interest therein, and there are no outstanding options, rights of first refusal or negotiation, or rights of first offer relating to the Water System or any interest therein. 6.2 No Outstanding Contracts for Work. To Oak Brook's knowledge, there are no material outstanding contracts related to the Water System. 6.3 Environmental Matters. To Oak Brook's knowledge, Oak Brook's operation of the Water System is not in violation of any Environmental Law. There are no pending or, to Oak Brook's knowledge, threatened claims or Encumbrances resulting from any Environmental Liabilities or arising under or pursuant to any Environmental Law with respect to or affecting the Water System. 9 6.4 Customer Deposits and Customer Advances. Oak Brook has no Customer Deposits or Customer Advances relating to service provided by the Water System. ARTICLE 7 RECIPROCAL REPRESENTATIONS AND WARRANTIES The Parties represent and warrant to each other as follows: 7.1 Organization and Authority. The Parties represent and warrant that each is a duly organized and validly existing municipal corporation under the laws of Illinois and have full power to carry on their business and functions as now being conducted. 7.2 Authority Relative to this Agreement. The Parties represent and warrant that the execution, delivery and performance of this Agreement, and of all of the other documents and instruments required hereby, are within the authority of the Parties. The execution and delivery of this Agreement and the consummation of the transaction contemplated hereby, have been duly authorized by the appropriate governing bodies of the Parties, and no other proceedings on the part of the Parties are necessary to authorize this Agreement or to consummate the transaction contemplated hereby. 7.3 Enforceability. The Parties represent and warrant that this Agreement and all of the other documents and instruments required hereby, have been or will be (in the case of documents and instruments permitted to be delivered after the date hereof) duly and validly executed and delivered by the Parties and constitute or will constitute valid and binding agreements of the Parties, enforceable against the Parties in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally or equitable principles. 7.4 Consents and Approvals; No Violations. 7.4.1 Oak Brook's Representation. Oak Brook represents and warrants that, to its knowledge, except for any required filings with and approvals of applicable federal, state or local authorities, no material filing or registration with, and no material permit, authorization, consent, order or approval of, any Governmental Authority is necessary or required in connection with the execution and delivery of this Agreement by Oak Brook or for the consummation by Oak Brook of the transaction contemplated by this Agreement. Upon obtaining any required approvals, to Oak Brook's knowledge, neither the execution, delivery or performance of this Agreement nor the consummation of the transaction contemplated hereby by Oak Brook will (i) conflict with or result in any breach of any provision of the organizational documents of Oak Brook, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any security, note, bond, mortgage, indenture, license, contract or other instrument or obligation to which Oak Brook is a party or by which it or any of its properties or assets may be bound, or (iii) to its knowledge, violate any order, writ, injunction, decree, statute, rule or regulation applicable to Oak Brook or any of its properties or assets. 10 7.4.2 Elmhurst's Representation. Elmhurst represents and warrants that, to its knowledge, except for any required filings with and approvals of the applicable federal, state or local authority, no material filing or registration with, and no material permit, authorization, consent, order or approval of, any Governmental Authority is necessary or required in connection with the execution and delivery of this Agreement by Elmhurst or for the consummation by Elmhurst of the transaction contemplated by this Agreement. Upon obtaining any required approvals, to Elmhurst's knowledge, neither the execution, delivery or performance of this Agreement nor the consummation of the transaction contemplated hereby by Elmhurst will (i) conflict with or result in any breach of any provision of the organizational documents of Elmhurst, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any security, note, bond, mortgage, indenture, license, contract or other instrument or obligation to which Elmhurst is a party or by which it or any of its properties or assets may be bound, or (iii) to its knowledge, violate any order, writ, injunction, decree, statute, rule or regulation applicable to Elmhurst or any of its properties or assets. 7.5 Legal Proceedings. 7.5.1 Oak Brook's Representation. Oak Brook represents and warrants that there are no complaints, claims, suits, actions, mediations, arbitrations, proceedings or investigations pending or, to the knowledge of Oak Brook, threatened against or affecting Elmhurst that relate to the Water system would, if adversely determined, materially affect Oak Brook's ability to perform its obligations hereunder, or on the validity or enforceability of this Agreement. 7.5.2 Elmhurst's Representation. Elmhurst represents and warrants that there are no complaints, claims, suits, actions, mediations, arbitrations, proceedings or investigations pending or, to the knowledge of Elmhurst, threatened against or affecting Oak Brook that relate to the Water system would, if adversely determined, materially effect Elmhurst's ability to perform its obligations hereunder, or on the validity or enforceability of this Agreement. ARTICLE 8 COOPERATION OF THE PARTIES 81 Filings and Authorizations. The Parties shall, as promptly as practicable, make or cause to be made all such filings and submissions to appropriate Governmental Authorities under laws, rules and regulations applicable to it or as may be required to consummate the terms of this Agreement. Any such filings and supplemental information will be in substantial compliance with the requirements of the applicable law, rule or regulation. Each Party shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission to the Governmental Authority. The Parties shall keep each other apprised of the status of any communications with, and inquiries or requests for 11 additional information from, any Governmental Authority, and shall comply promptly with any such inquiry or request. The Parties will use commercially reasonable efforts to obtain any approvals required from the applicable Governmental Authorities for the purchase and sale of the Water System in accordance with the terms and conditions hereof. 8:2 Petition to Transfer Water Allocation. Elmhurst shall file a petition with the Illinois Department of Natural Resources to increase Elmhurst's Lake Michigan water allocation to include the water delivered through the Water System. Oak Brook shall cooperate in all regards in making such filing provided that Oak Brook shall not be obligated to incur any expense in connection with its cooperation in the filing of the petition. 8.3 Consents and Approvals from Third Parties. Oak Brook and Elmhurst shall use all commercially reasonable efforts to obtain consents of all other third parties necessary to the consummation of the transaction contemplated by this Agreement. Oak Brook and Elmhurst shall promptly notify each other of any failure or anticipated failure to obtain any such consent and, if requested by the other Party, shall provide copies of all such consents obtained by the Party seeking such consent. 84 Further Assurances. Subject to the terms of this Agreement, Oak Brook and Elmhurst will use all commercially reasonable efforts to take, or cause to be taken, all action to do, or cause to be done, all things or execute any documents necessary, proper or advisable to consummate and make effective the transaction contemplated by this Agreement. On and after the Closing Date, Oak Brook and Elmhurst shall take all reasonably appropriate action and execute any bills of sale, deeds, assignments, documents, instruments or conveyances of any kind which may be reasonably necessary to complete or perfect the transfer of any part of the Water System to Elmhurst or carry out any of the provisions of this Agreement and correct errors and omissions relating to the transaction contemplated by this Agreement. 8.5 Mutual Covenants. Subject to the terms and conditions set forth in this Agreement, each of the Parties agrees to use its best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transaction contemplated by this Agreement. 8.6 Cooperation; Access. The Parties shall cooperate, and shall cause their respective officers, employees, agents and representatives to cooperate, to ensure the orderly transition of the Water System from Oak Brook to Elmhurst and to minimize the disruption to the operation of the Water System resulting from the transaction contemplated hereby. The Parties further agree: (a) That the Parties shall maintain an emergency water connection to the Water System at Euclid Avenue and Roosevelt Road. The Parties agree to work out suitable arrangements regarding use of this connection and compensation to one party for water used by the other party in emergencies. 12 ARTICLE 9 CONDITIONS PRECEDENT 9.1 Mutual Conditions Precedent. Each Party's obligation to consummate the Closing of the transaction contemplated by this Agreement is conditioned upon the satisfaction or waiver by each Party, on or before the Closing Date, of each of the following conditions precedent: 9.1.1 Consents and Approvals. Oak Brook and Elmhurst shall have received all necessary consents and approvals from Governmental Authorities or as otherwise required by law to consummate the transaction contemplated by this Agreement. 9.1.2 The respective governing board's of Oak Brook and Elmhurst shall have approved this Agreement and the transaction described herein. 9.2 Conditions Precedent to Obligations of Elmhurst. Elmhurst's obligation to consummate the Closing of the transaction contemplated by this Agreement is conditioned upon the satisfaction or waiver by Elmhurst of each of the following conditions precedent on or before the Closing Date. 9.2.1 Representations True and Correct. The representations and warranties made by Oak Brook shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though all such representations and warranties had been made on and as of the Closing Date. 9.3 Conditions Precedent to Obligations of Oak Brook. The representations and warranties made by Elmhurst herein shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as though all such representations and warranties had been made on and as of the Closing Date. 9.3.1 Payment of Purchase Price. Oak Brook's receipt of the Purchase Price in immediately available funds. ARTICLE 10 RESPONSIBILITIES REGARDING THE WATER SYSTEM BETWEEN SIGNING AND CLOSING 101 Operation and Maintenance of Water System. Prior to the Closing Date, Oak Brook shall be responsible and liable for the operation and maintenance of the Water System and all obligations associated therewith. Oak Brook shall maintain the condition of the Water System in accordance with and consistent with Oak Brook's past practice and experience. 10.2 Conduct of Business. During the period from the date of this Agreement to the Closing Date, Oak Brook shall conduct all of its operations that concern the Water System in the ordinary and usual course of business. Oak Brook agrees that it shall not, other than in the ordinary course of business: 13 10.2.1 Contracts; Transaction. Enter into any contract or commitment, waive any right or enter into any other transaction (except in the ordinary course of business), which would have a material adverse effect on the Water System; 10.2.2 Sales; Leases. Sell or lease or agree to sell or lease or otherwise dispose of the Water System; or 10.2.3 Liens. Mortgage, pledge or subject to any lien, any part of the Water System. 10.3 Customer Billings. Oak Brook shall continue to read the water meters for the customers served from the Water System through the Closing Date. Oak Brook shall generate final water bills within five (5) days of reading for those customers on the Water System. Subsequent to the Closing, Elmhurst shall assume responsibility for billing water services to customers on the water system. Oak Brook shall provide Elmhurst with water meter readings captured by its automated water meter reading for up to twenty - four (24) months during which time Elmhurst will be engaged in changing Oak Brook's MTV's over to Elmhurst's meter reading system. The parties shall use their best efforts to cooperate during this transition period. 10.4 Transition Assistance. During the period from the date of this Agreement until the Closing Date, Elmhurst shall have reasonable access to Oak Brook's Water System operator to assist Elmhurst in educating and training Elmhurst's employees who will be involved in the operation of the Water System after the Closing. ARTICLE 11 CLOSING 11.1 The Closing. The Closing shall occur on the Closing Date. The Closing shall occur at the Oak Brook Village Hall on May 28, 2008 at 9:00 a.m. or as soon thereafter as is practicable. The effective date of the transfer of the Water System shall be 12:01 p.m. Central Time on the Closing Date. On the Closing Date, the Parties agree to take the actions required by this Agreement and all such actions shall be deemed to have occurred simultaneously. 11.2 Closing Costs. Each Party shall bear its own costs and expenses related to the transaction contemplated by this Agreement. ARTICLE 12 POST CLOSING 12.1 Responsibility for Operation of Water System Post Closing. Elmhurst shall be responsible and liable for the operation and maintenance of the Water System and for the performance of all obligations associated therewith beginning on the Closing Date. 12.2 Survival of Representations and Warranties. Regardless of any investigation at any time made by or on behalf of a Party or of any information any Party may have, all representations and warranties shall expire one (1) year after the Closing Date, after which time neither Party shall be responsible or liable to the other Party for the breach of any representation or warranty except for any breaches for which one Party has notified the other Party in writing prior to the expiration of such one (1) year period. ARTICLE 13 INDEMNIFICATION 13.1 General Indemnification for Operation of the Water System. Subject to the terms and conditions of this Article, Oak Brook agrees to indemnify and hold harmless Elmhurst, its elected and appointed officials, officers, employees and authorized representatives, and agents and each of them from and against any liabilities, losses, damages and expenses (including reasonable attorneys' fees and expenses) actually suffered by Elmhurst arising out of the acts or omissions of Oak Brook, its officers, directors, employees or agents, related to Oak Brook's ownership or operation of the Water System prior to the Closing Date. Subject to the terms and conditions of this Article, Elmhurst agrees to indemnify and hold harmless Oak Brook, its officers, directors, employees, representatives, parent, affiliates, and agents, and each of them from and against any liabilities, losses, damages and expenses (including reasonable attorneys' fees and expenses) actually suffered by Oak Brook arising out of the acts or omissions of Elmhurst, its officers, directors, employees or agents, related to Elmhurst's ownership or operation of the Water System on and after the Closing Date. This Section shall not apply to indemnification claims arising out of or relating to Environmental Liabilities or Environmental Claims of any nature whatsoever. Any right to bring an indemnification claim relating to Environmental Liabilities or Environmental Claims shall be determined exclusively in accordance with the provisions of this Article. 13.2 Indemnification Related to Representations, Warranties, Covenants and Agreements. Subject to the terms and conditions of this Article, and except for any breach or inaccuracy of representation or warranty under Section 13.9 (for which the parties agree Oak Brook has no liability whatsoever), each party shall indemnify and hold harmless the other party from any liabilities, losses, damages and expenses (including reasonable attorneys' fees and expenses) actually suffered by such party relating to the other party's breach of any representation or warranty or failure to fulfill any covenant or agreement contained in this Agreement. This Section shall not apply to indemnification claims arising out of or relating to Environmental Liabilities or Environmental Claims of any nature whatsoever. Any right to bring an indemnification claim relating to Environmental Liabilities or Environmental Claims is exclusively subject to in this Article. 13.3 Environmental Indemnification by Oak Brook for Certain Environmental Claims. Subject to the terms and conditions of this Article, Oak Brook shall indemnify, defend, and hold harmless Elmhurst, its officials, officers, employees representatives, and agents and each person potentially liable through Elmhurst, from and against only those Environmental Liabilities relating to Environmental Claims resulting from or arising out of Oak Brook's actions which caused contamination of the environment. 15 Upon obtaining knowledge of any Environmental Claim, Elmhurst shall notify Oak Brook of the claim and give a brief description of the nature of the claim. With respect to those Environmental Claims covered by this Section, Oak Brook shall defend or otherwise take appropriate action in response to the Environmental Claim, in good faith and at its expense. Notwithstanding any other provision of this Agreement or any other document, instrument or agreement relating hereto, Oak Brook shall have no liability or other obligation to Elmhurst under or relating to this Agreement or the transaction contemplated hereunder resulting from, arising out of, or relating to any environmental contamination unless such environmental contamination resulted from or arose out of Elmhurst's actions which caused the contamination of the environment or originated during the period Elmhurst's ownership of the water facilities. 13.4 Environmental Indemnification by Elmhurst for Certain Environmental Claims. Subject to the conditions and terms of this Article, Elmhurst shall indemnify, defend, and hold harmless Oak Brook, its officials, officers, representatives and agents, from and against only those Environmental Liabilities relating to Environmental Claims resulting from or arising out of Elmhurst's actions which caused contamination of the environment. Upon obtaining knowledge of any Environmental Claim, Oak Brook shall notify Elmhurst of the claim and give a brief description of the nature of the claim. With respect to any Environmental Claims covered by this Section, Elmhurst shall defend or otherwise take appropriate action in response to the Environmental Claim, in good faith and at its expense. Notwithstanding any other provision of this Agreement or any other document instrument or agreement relating hereto, Elmhurst shall have no liability or other obligation to Oak Brook under this Agreement or the transaction contemplated hereunder with resulting from, arising out of, or relating to any other environmental contamination, unless such environmental contamination resulted from or arose out of Elmhurst's actions which caused the contamination of the environment or originated during the period of Elmhurst's ownership of the water facilities. 13.5 Notice of Proceedings. Each Party shall promptly notify the other Party of any loss or proceeding in respect of which such notifying Party is or may be entitled to indemnification pursuant to this Article. Such notice shall be given as soon as reasonably practicable after the Party becomes aware of the claim or proceeding and that such claim or proceeding may give rise to an indemnification obligation. The delay or failure of such indemnified Party to provide the notice required pursuant to this Section shall not release the other Party from any indemnification obligation which it may have to such indemnified Party except (i) to the extent that such failure or delay prejudices the indemnifying Party's ability to defend such action or increases the amount of the claim, and (ii) that the indemnifying Party shall not be liable for any costs or expenses of the indemnified Party in the defense of the claim, suit, action or proceeding during such period of failure or delay. 13.6 Defense of Claim. 13.6.1 Right to Defend. Unless and until the indemnifying Party acknowledges in writing its obligation to indemnify the indemnified Party to the extent required pursuant to this Article, and assumes control of the defense of a claim, suit, action or proceeding in accordance with Section, the indemnified Party shall 16 have the right, but not the obligation, to contest, defend and litigate; with counsel of its own selection, any claim, action, suit or proceeding by any third Party alleged or asserted against such Party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder, and the reasonable costs and expenses thereof shall be subject to the indemnification obligations of the indemnifying Party hereunder. 13.6.2 Payment of Costs; Defense of Claims. Upon acknowledging in writing its obligation to indemnify, the indemnifying Party shall, to the extent required by this Article, pay all reasonable costs incurred by an indemnified Party in its defense, including, without limitation, reasonable legal fees. The indemnifying Party shall then be entitled, at its option, to assume and control the defense of such claim, action, suit or proceeding at its expense with counsel of its selection, subject to the prior reasonable approval of the indemnified Party. 13.6.3 Settlement of Claim. Neither the indemnifying Party nor the indemnified Party shall be entitled to settle or compromise any such claim, action, suit or proceeding without the prior written consent of the other; provided, however, that after agreeing in writing to indemnify the indemnified Party, the indemnifying Party may settle or compromise any claim without the approval of the indemnified Party. Except where such consent is unreasonably withheld, if a Party settles or compromises any claim, action, suit or proceeding in respect of which it would otherwise be entitled to be indemnified by the other Party, without the prior written consent of the other Party, the other Party shall be excused from any obligation to indemnify the Party making such settlement or compromise in respect of such settlement or compromise. 13.6.4 Selection of Counsel. Following the acknowledgment of the indemnification and the assumption of the defense by the indemnifying Party pursuant to this Article, the indemnified Party shall have the right to employ its own counsel and such counsel may participate in such action, but the fees and expenses of such counsel shall be at the expense of such indemnified Party, when and as incurred. 13.7 Subrogation. Upon payment of any indemnification claim by a Party pursuant to this Agreement, the indemnifying Party, without any further action, shall be subrogated to any and all claims that the indemnified Party may have relating thereto up to the amount paid by the indemnifying Party, and such indemnified Party shall at the request and expense of the indemnifying Party cooperate with the indemnifying Party and give at the request and expense of the indemnifying Party such further assurances as are necessary or advisable to enable the indemnifying Party vigorously to pursue such claims. 13.8 Survival Period Indemnification Limitation. 13.8.1 Survival Period No claim for indemnification among the Parties shall be brought under or pursuant to this Agreement or the transaction contemplated hereunder, or any other document, instrument, or agreement relating to the transaction contemplated hereunder, after the expiration of one (1) year following the Closing Date. Any claim for indemnification arising under this 17 Agreement not submitted in writing to the indemnifying Party prior to the expiration of the one (1) year survival period shall be deemed to have been waived in its entirety and the Party who could have asserted such claim shall be deemed to have irrevocably waived, and shall be forever barred from asserting, such claim. - . 13.8.2 Indemnification Limitations. (a) Minimum and Maximum Indemnification Claims. Notwithstanding any provision of this Agreement or any other document, instrument or agreement relating to the transaction contemplated under this Agreement: except for Elmhurst's obligation to pay Oak Brook the entire amount of the Purchase Price, which obligation shall be absolute and not subject to the limitations set forth in this Section, (i) neither Party shall be obligated to indemnify the other until the total amount of any claim or claims for indemnification, individually or in the aggregate, exceed(s) Twenty -Five Thousand Dollars ($25,000.00), and then only for amounts in excess of $25,000.00; and (ii) the maximum amount for which either Party shall be obligated to indemnify the other Party resulting from, arising out of, or pursuant to this Agreement or the transaction contemplated hereunder, or any other document, instrument or agreement relating to the transaction contemplated hereunder, shall not exceed Three Hundred Fifty Thousand Dollars ($350,000.00). A Party may seek a claim for indemnification under or pursuant to this Agreement only for the amount of liabilities, losses, damages or expenses actually incurred or suffered by such Party. (b) No Knowledge of Breaches. Neither Party has knowledge of any facts or circumstances that would serve as the basis for a claim by one Party against the other Party based upon a breach of any of the representations, warranties, covenants or agreements of the other Party contained in this Agreement each Party shall be deemed to have waived in full any breach of any of the other Party's representations, warranties, covenants or agreements of which such Party had knowledge on or before the Closing Date. (c) Further Limitations of Liability. A Party may seek indemnification under this Agreement only for liabilities, losses, damages or expenses actually incurred or suffered by such Party and for which such party has submitted a claim for indemnification to the indemnifying Party within the one (1) year survival period set forth in Section 13.8.1. The determination of the amount of any claim for indemnification under this Agreement shall be reduced by an amount equal to all insurance proceeds actually received or expected to be received by the indemnified Party with respect to such claim. Each Party's liability under this Agreement shall further be limited to any actual, out of pocket losses suffered by the Party seeking indemnification. (d) Exclusive Remedy. Each Party acknowledges and agrees that, from and after the execution and delivery of this Agreement, its sole and 18 exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement or the transaction contemplated hereunder, or any other documents, instruments, or agreements contemplated by or executed in connection herewith, shall be pursuant to the indemnification provisions set forth in this Article and each Party hereby expressly waives any other remedies it may have as provided by law. Each Party further acknowledges and agrees that: (i) other than the respective representations, warranties, covenants and agreements of each Party specifically contained in this Agreement, or in any other document, instrument, certificate or agreement to be executed or delivered pursuant to this Agreement, there are no representations, warranties, covenants, or agreements of either Party or any other person or entity, either express or implied, with respect to the subject matter of this Agreement, including, but not limited to, the Water System; and (ii) each Party shall have a right to seek indemnification pursuant to this Agreement for damages actually incurred by such Party solely as provided in this Article and neither Party shall have any right to seek indemnification with respect to any other information, documents, agreements, instruments, certificates or materials furnished by the other Party or its directors, officers, employees, agents or advisors as a result of or pursuant to the transaction contemplated by this Agreement. (e) Environmental Indemnification. Notwithstanding any other provision of this Agreement to the contrary, each Party hereto acknowledges and agrees that any liability or obligation between Oak Brook and Elmhurst relating to Environmental Liabilities or Environmental Claims, or any other liability or obligation between Oak Brook and Elmhurst relating to any environmental matter whatsoever, shall be determined solely and exclusively pursuant to Sections 13.3 and 13.4 hereof subject to the limitations and other provisions set forth in this Article. Elmhurst acknowledges and agrees that the representations and warranties of Oak Brook in Section 6.3 hereof are for informational purposes only, and that, notwithstanding any statement made by Oak Brook in Section 6.3, Oak Brook shall have no liability whatsoever with respect to, and Elmhurst agrees not to hold Oak Brook responsible for or seek indemnification against Oak Brook as a result of, any breach of Section 6.3 or any inaccuracy of any statements made in Section 6.3. In addition, Elmhurst hereby expressly waives any right to hold Oak Brook liable or responsible for, or seek indemnification from Oak Brook relating to any breach or inaccuracy of any statements made in Section 6.3. Elmhurst further acknowledges and agrees that it is not relying on the representations and warranties set forth in Section 6.3 as a basis for deciding whether to proceed with the Closing; rather, Elmhurst is relying solely on its own environmental due diligence as a basis for deciding whether to proceed with the Closing. 19 ARTICLE 14 GENERAL PROVISIONS 14.1 Negotiated Sale. This Agreement represents an arms' length negotiated sale of the Water System by the Parties. Oak Brook and Elmhurst each affirm that this Agreement does not represent a taking under principles of condemnation or under the terms of an indeterminate permit 14.2 Notices. All notices, consents, requests, demands, offers, reports or other communications required or permitted to be given pursuant to this Agreement shall be in writing and considered properly given or made when personally delivered to the person entitled thereto, when sent by certified or registered United States mail in a sealed envelope, with postage prepaid, or when sent by overnight courier, addressed as set forth below. Any Party may change its address by giving notice to the other Party as aforesaid. If to Elmhurst: City of Elmhurst 209 North York Street Elmhurst, Illinois 60126 -2759 Attn.: City Manager If to Oak Brook: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60523 -2255 Attn.: Village Manager 14.3 Governing Law and Venue. This Agreement and the rights of the Parties hereunder shall be interpreted and enforced in accordance with the internal laws of the State of Illinois. All actions involving breach of this Agreement shall be in DuPage, County, Illinois. 14.4 Regulatory Bodies. The Parties though this Agreement seek to exercise and maintain all rights granted to them under and through the Constitution and laws of the State of Illinois. This Agreement 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 impairment of this Agreement. 14.5 Compliance with State Laws and Regulations. In the event that any provision of this Agreement, or any part thereof, conflicts with state laws and regulations to such an extent that both state law and regulations, and this Agreement cannot be complied with, the state laws and regulations shall control. In such event, the Parties shall promptly meet to discuss how they might satisfy the intent of this Agreement by alternative means. 14.6 Severability. If any provision of this Agreement or the application thereof to any Person or circumstance shall, to any extent, be held to be invalid or unenforceable in any 20 jurisdiction, the validity and enforceability of the Agreement or the application of such provision to any other Persons or circumstances shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the extent permitted by law in every jurisdiction, and this Agreement shall be modified as necessary to carry out the intent of the Parties. 14.7 Change in Laws. Unless otherwise explicitly provided in this Agreement, any reference to laws, ordinances, rules, or regulations shall include such laws, ordinances, rules, or regulations as they may be amended or modified from time to time hereafter. 148 Entire Agreement. This Agreement, together with the Schedules and Exhibits hereto, and all other documents, instruments and agreements relating to the transaction contemplated by this Agreement contain the entire agreement between the Parties with respect to the transaction contemplated by this Agreement and matters related thereto, and supersede and render null and void and of no further force or effect any and all prior agreements, drafts of agreements and understandings between the Parties relating to the transaction contemplated by this Agreement. 14.9 Interpretation. 14.9.1 Joint Drafting. This Agreement shall be interpreted as though jointly drafted by the Parties. 14.9.2 Headings. The headings, titles or captions contained in this Agreement have been inserted only as a matter of convenience and for reference, and such captions in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof. 14.9.3 References. Any reference herein to "day" or "days" shall mean calendar and not business days, unless otherwise specified. If the date for giving of any notice required to be given hereunder or the performance of any obligation hereunder falls on a Saturday, Sunday or federal holiday, then the notice or obligation may be given or performed on the next business day after such Saturday, Sunday or federal holiday. All references herein to this Agreement or other agreement shall be to this Agreement or such other agreement as amended, supplemented, or modified to the date of reference. 14.9.4 Other. Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement shall have the meanings specified in Article I; (b) the singular shall include the plural and the masculine shall include the feminine and neuter; and (c) references to "Articles ", "Schedules ", "Sections ", or "Exhibits" shall be to articles, schedules, sections, or exhibits of this Agreement, and references to "this Section" shall be to the section in which the reference occurs, 14.10 No Third -Party Beneficiaries. Except as otherwise explicitly provided by this Agreement, this Agreement does not create any third -party benefits to any person or entity other than the signatories hereto and is solely for the consideration herein expressed. 21 14.11 Successors. This Agreement shall benefit and be binding upon the successors of Oak Brook and Elmhurst. 14.12 Assignment. Neither Party may assign its rights hereunder without the prior written consent of the other Party; provided, however, that such consent shall not be unreasonably denied or conditioned. 14.13 Further Action. Each of the Parties agrees from time to time to execute and deliver such further instruments, and to take such further action not inconsistent with the provision of this Agreement, as may reasonably be necessary in order to fully perform and carry out the terms and intent of the Agreement. 14.14 Amendments. This Agreement may not be modified or amended except by a written instrument executed by each of the Parties. 14.15 Waiver. Either Party may extend the time for or waive the performance of any obligation of the other Party, waive any inaccuracies in the representations or warranties of such Party, or waive compliance by such party with any of the terms and conditions contained in this Agreement. Any such extension or waiver shall be in writing and executed by the Party granting the waiver. 14.16 Time is of the Essence. Time is of the essence in the performance of all terms and provisions of this Agreement. 14.17 E -mail, Facsimile and Counterpart Execution. This Agreement and all other documents, instruments and agreements executed in connection herewith may be executed and delivered via e- mail /pdf or facsimile transmission with the same legal force and effect as if originals had been executed and delivered, This Agreement may be executed in counterparts, each of which shall be considered an original instrument, but all of which shall be considered one and the same Agreement. 14.18 Dispute Resolution. 14.18.1 Negotiations. The Parties shall be required to use their best efforts to negotiate in good faith in an attempt to resolve any controversy, claim or dispute arising out of or relating to this Agreement or the transaction contemplated hereunder, whether such claim is based on rights, privileges, or interests recognized by or based upon statute, contract, tort, common law, or otherwise and whether such claim existed prior to or arises on or after the date of this Agreement (the "Dispute "). Such negotiations shall take place in DuPage County, Illinois pursuant to the procedures set forth in the Section below. Such negotiations shall consist of face -to -face meetings between representatives of each party or their designees who have the authority to make legally enforceable and binding commitments on behalf of each party hereto. 14.18.2Dispute Meetings. Either Party may give the other Party written notice (a "Dispute Notice ") of any Dispute which has not been it solved in the normal course of business. Within fifteen (15) days after delivery of the Dispute Notice, the receiving Party shall submit to the other a written response (the "Response "). The Dispute Notice and the Response shall include (i) a statement setting forth 22 - ' 1 • ' , ' � .. �. • - to'the other shall be honored. ' ' requests for Information made,by one Patty . e' Dispute •has not •bger! resolved within, sixty ,(60) • ' ��•'18.3 Mediaiion Arbitcatlon.',if tli • .. , days after delivery ofthe blapute.Notice, orr,each Party .faf! to meet within thirty (30) days, after •jellvery of the 'Dispute ; Note- as herelnabove- provided, bosh Parties shall -immediately proceed to mandatary medlation, which shall -also be held In LDuPage County, .11linois. If the Dispute has 'riot :been resolved 'by ; • after delve of the Dispute•_Notice,, ihe:partles =rnediatlon- within pinety (?())-days- �` e a bitratio� •shal[_.:6 •shall : irn''edlateiy - :proceed -*to 1 ?inding,'; arbitration, - Th , _ "' e u es .and ; orggec, ures ' 3 a bitrators, ri .accordance with th r 1 ca�iducted by. three (} r ,1, .b,,.-,,The , . . o '' Pa fes •'shall h 1 bf =t merlcari A, Associatf •O. , :'.eaG �.ciiose an he A , , + - #or: he ,orbit atIon _ = t f d 'arblt a arbitrator end.those two, arbitrators,sh =all,.select'a h r•., , =fi ,r `raceeding shall be conducteg'as' eXpedltlQuslyf as passible and the •declsiatl;af _ he arbitration panel shall be finial and 8iriding on the'PattleS hereto'wlth'na 'right ' 14,18.4Evidentia Alf negotiations pursuant 'to',this•:Section shall :be' created as dom romise , and 'settlement 'negotiation's. Noihlrig •sald� or, :disclosed,'' ,n* any. p" a course, ,of such neQatfafions:which•'Is not othejwlse,• . document produce, :iii„ h , ,iridepetidently dfscovera le'shall.be offbred. or'recolved as evid'e'nce or'used.for , j n '' ' . • eht or an 'ath'er "urpbse in any arbltr~ation',proceeding. 'E EoF,'the �Pa>~tias have,executed this Ag'reemertt as IN WITNESS ❑f the da st '' Wi-1 i� _ . set forth above. ;�L= ' �z CITY& ELMHURST ,F ` • • • • • . • , . . • t ' ', , 1 ' 1 q'•• , , 1, 1 ,yf r YY rM Lj r^ �'�,j _M�yar, , , r,j��,�'tiAlx'j{1\• l ':•_' ' ,' �', ,• �'� iii ° "r , t 1 ' . Attest:. eye',, VILLAGEroF OAK'gROOK t Bye :'President t _ Attest: 6y:" Villade Clerk ,r27 , • J ; .• • , • • 5 t •i . ', . the position of each Party and a summary of arguments supporting each Party's position, and (ii) the name of each Party's representatives who have been given authority to resolve the Dispute. Within thirty (30) days after delivery of the Dispute Notice, the representatives of both Parties shall meet in DuPage County, Illinois, at a location mutually agreeable to both parties, as often as they reasonably deem necessary, to attempt to resolve the Dispute. All reasonable = requests for information made by one Party to the other shall be honored. 14.18.3 Mediation; Arbitration. If the Dispute has not been resolved within sixty (60) days after delivery of the Dispute Notice, or each Party fail to meet within thirty (30) days after delivery of the Dispute Note as hereinabove provided, both Parties shall immediately proceed to mandatory mediation, which shall also be held in DuPage County, Illinois. If the Dispute has not been resolved by mediation within ninety (90) days after delivery of the Dispute Notice, the parties shall immediately proceed to binding arbitration. The arbitration shall be conducted by three (3) arbitrators in accordance with the rules and procedures of the American Arbitration Association. The Parties shall each chose an arbitrator and those two arbitrators shall select a third arbitrator. The arbitration proceeding shall be conducted as expeditiously as possible and the decision of the arbitration panel shall be final and binding on the Parties hereto with no right to appeal. 14.18.4Evidentiary. All negotiations pursuant to this Section shall be treated as compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise Independently discoverable shall be offered or received as evidence or used for impeachment or any other purpose in any arbitration proceeding. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. CITY OF ELMHURST By: Mayor Attest: By: City Clerk Village Clerk �tl F C i• U. 7 i = EXHIBIT LM '3Ab !i V6Z m C = u+ DD Q w 1, (1 N v 4 ` Q, � A 0 o� 4 d tl f J EXHIBIT 2.2.3 NONE ;EXHIBIT LM 17� EXHIBIT 2.2.4 Customer Lists will be provided separately. N EXHIBIT d - z 'm BILL OF SALE Seller, the Village of Oak Brook, an Illinois municipal corporation, in consideration of Three Hundred Fifty Thousand Dollars ($350,000.00), receipt of which is hereby acknowledged, does hereby sell, assign, transfer and set over to Buyer, the City of Elmhurst, an Illinois municipal corporation, the following described personal property, to wit: The Yorkfield Area Water System ( "Water System ") as more particularly described in the Yorkfield Area Water System Purchase Agreement dated as of May 28, 2008. Seller hereby represents and warrants to Buyer that Seller is the absolute owner of said property, that said property is free and clear of all liens, charges and encumbrances, and that Seller has full right, power and authority to sell said personal property and to make this bill of sale. ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED. In witness whereof, Seller has caused this bill of sale to be signed and sealed at Oak Brook, Illinois as of this 28th day of May, 2008. STATE OF ILLINOIS ss COUNTY OF COOK Village of Oak Brook, la John W. Craig — Village President ATTEST: Charlotte Pruss — Village Clerk I, the undersigned, a notary public in and for said County, in the State aforesaid, do hereby certify that John C. Craig and Charlotte Pruss are personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered the said instrument on behalf of the Village of Oak Brook as their free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official seal this 28th day of May, 2008. Notary Public 1 9! �j N 7-EXHUT IG �p -Va p L.4 A. C L-- I #L4 L, s -() LA.-) A- 'je jL_ er--;, X-c RECAPTURE AGREEMENT PROVIDING FOR THE CONSTRUCTION AND � ab ALLOCATION OF COSTS FOR CERTAIN PUBLIC IMPROVEMENT �j S THIS AGREEMENT, made and entered into this O fA day of February, 2003, between the Village of Oak Brook, an Illinois municipal corporation (hereinafter referred to as the "VILLAGE "), and Michael and Stacy Wrasse, (hereinafter referred to as the "OWNER"), WITNESSETH WHEREAS, the OWNER is the owner of certain real estate commonly known as 0 S 563 Poplar, Elmhurst, Illinois, and legally described in Exhibit A, which is attached hereto, (hereinafter referred to as the "PROPERTY "); WHEREAS, the OWNER has built a single- family residence on the PROPERTY as described on Exhibit A (hereinafter referred to as the "DEVELOPMENT "); and, WHEREAS, as part of the proposed DEVELOPMENT, OWNER has agreed and caused the construction of a new water main along Poplar between Harvard and Concord Streets as a public improvement to serve the PROPERTY (hereinafter referred to as the "RECAPTURE IMPROVEMENT "); and, WHEREAS, in addition to the PROPERTY, there are other parcels of developed and undeveloped property described in Exhibit B hereto which are benefited by, and may in the future be connected to, the RECAPTURE IMPROVEMENT, or a branch thereof ('BENEFITED PARCELS "); and WHEREAS, the parties have determined that it is necessary, convenient and desirable to enter into this AGREEMENT to ensure that owners of the BENEFITED PARCELS pay their fair share of the RECAPTURE IMPROVEMENT; and WHEREAS, it was in the best interest of the VILLAGE that the RECAPTURE IMPROVEMENT be constructed, including appropriate ` appurtenances, as a public improvement, in order to provide a method for the orderly development of the PROPERTY and BENEFITED PARCELS, which are hereinafter sometimes collectively referred to as "SERVICE AREA "; and, WHEREAS, it is equitable and fair that the owners of the BENEFITED PARCELS share the cost and expense for the RECAPTURE IMPROVEMENT on a proportionate basis. NOW, THEREFORE, in consideration of the foregoing premises and in further consideration of the mutual covenants, agreements and conditions herein contained, the parties hereto agree as follows: 1. The provisions of the preamble are incorporated into a made a part of this agreement. r :EXHIBIT N G Z C C I m 2. Definitions: a. ADMINISTRATION FEE shall mean a fee equal to two percent (2 %) of the REIMBURSEMENT FEE after the receipt of the first $10,000 of all REEVIBURSE- MENT FEES under this Agreement, which is assessed to offset the VILLAGE's expenses in establishing and administering this reimbursement program. b. BENEFITED PARCELS shall mean those parcels within the SERVICE AREA, including the DEVELOPMENT as set forth on Exhibit B, which may at some point in fhe- future connect to the RECAPTURE IMPROVEMENT. ---- -- - - - -- - -- -- c. DEVELOPMENT shall mean the construction of a single- family residence on the PROPERTY to be served by the RECAPTURE IMPROVEMENT. d. PROPERTY shall mean the property of the OWNER to be served by the RECAPTURE IMPROVEMENT. e. EAPROVEMENT COSTS shall mean the charges and expenses reasonably incurred by the OWNER, and approved by the VILLAGE as set forth on Exhibit C. f. REIMBURSEMENT FEES shall mean a fee established for each BENEFITED PARCEL, which represents such parcel's proportionate fair share of the REIMBURSEMENT COSTS and which may include interest, as set forth on Exhibit C. g. REIMBURSEMENT PAYMENT shall mean the payment of REIMBURSEMENT COSTS to the OWNER by the VILLAGE as provided herein. h. SERVICE AREA shall mean the area served by the RECAPTURE IMPROVEMENT, including property of the OWNER and other developed and undeveloped property, which could potentially connect to the RECAPTURE IMPROVEMENT at some point in the future. i. TRIGGERING EVENT shall be defined as follows: i. Because the RECAPTURE IMPROVEMENT is a water main that is or may be connected to a BENEFITED PARCEL to provide water services, the TRIGGERING EVENT shall be the date on which an application for connection to the RECAPTURE IMPROVEMENT is made by or for a BENEFITED PARCEL. Provided, in the event that, prior to construction of the RECAPTURE IMPROVEMENT the BENEFITED PARCEL was connected to an existing water main which was replaced by the RECAPTURE IMPROVEMENT but wl-uch had adequately served the then existing uses on the BENEFITED PARCEL in conformance with applicable codes and laws, including meeting required fire flows, then the TRIGGERING EVENT shall be the date on which the BENEFITED PARCEL seeks permit(s) from the VILLAGE to substantially 2 improve, expand or rebuild the existing uses or structures to the point that, in the determination by the VILLAGE, the RECAPTURE IMPROVEMENT would have been required had they not been constructed by the OWNER. j. RECAPTURE IMPROVEMENT shall mean the improvement as set forth on Exhibit B, which has been constructed or installed by or at the expense of the OWNER, which improvement has been dedicated to the VILLAGE, which are expected to enhance the use and value of the BENEFITED PARCELS. 3. The following documents are incorporated into and made a part of this agreement by reference: (Note: The following exhibits may be combined where appropriate.) a. Exhibit "A ", attached hereto, description and map of the PROPERTY and the DEVELOPMENT. b. Exhibit "B ", attached hereto, and map showing location of the RECAPTURE IMPROVEMENT, the SERVICE AREA, and BENEFITED PARCELS. c. Exhibit "C ", attached hereto, the REIMBURSEMENT FEES attributed to the RECAPTURE IMPROVEMENT and the REIMBURSEMENT FEE attributed to each BENEFITED PARCEL. 4. OWNER shall, within 30 days of the date of this Agreement, pay to the VILLAGE a processing fee of $500. 5. In the manner and to the extent hereinafter set forth, the VILLAGE agrees to partially reimburse the OWNER based on the REIMBURSEMENT FEES. This partial reimburse- ment is intended to equitably spread these REIMBURSEMENT FEES among the BENEFITED PARCELS, including the PROPERTY which are, or may at some future time be, connected to the RECAPTURE IMPROVEMENT or a branch thereof. 6. The REEVIBURSEMENT FEES, less the ADMINISTRATION FEES, have been established for each BENEFITED PARCEL, which represents such parcel's proportionate fair share of the RECAPTURE IMPROVEMENT COSTS. The VILLAGE shall assess and collect from each BENEFITED PARCEL the REIMBURSEMENT FEE as set forth on Exhibit C. The REIMBURSEMENT FEE shall be assessed against and paid by a BENEFITED PARCEL upon the occurrence of a TRIGGERING EVENT. The owners of any BENEFITED PARCEL have enjoyed and will receive the advantage of greater use, value and utility of the BENEFITED PARCEL as a consequence of the RECAPTURE IMPROVEMENT and shall pay the REIlvIBURSEMENT FEE upon the occurrence of TRIGGERING EVENT. 7. The REMBURSEMENT FEES collected by the VILLAGE pursuant to this Agreement shall be accumulated and paid to the OWNER as REIMBURSEMENT PAYMENTS on the first Friday in June and the first Friday in December. The VILLAGE shall retain the ADMINISTRATION FEE. It is understood and agreed that the REE14BURSEMENT PAYMENTS shall be limited to funds collected from such BENEFITED PARCELS for the REIMBURSEMENT FEE and payment made hereunder shall be solely out of said funds. This agreement shall not be construed as creating any obligation upon the VILLAGE to make payments from its general funds or revenue. Such REIMBURSEMENT PAYMENTS shall continue under the earlier of the following: a. The REIMBURSEMENT FEE is paid in full; or b. The expiration of this Agreement; or c. All BENEFITED PARCELS have been connected to the RECAPTURE IMPROVE- MENT, or a branch thereof. 8. The VILLAGE shall endeavor in good faith to enforce the provisions hereof and to collect and accumulate the REIMBURSEMENT FEE as established herein. However, the parties recognize the possibility of omissions or errors, and it is agreed that the VILLAGE shall not be liable in any way in the event that it shall fail, for any reason whatsoever, to collect or enforce the payment of said REIMBURSEMENT FEES or accumulate the REIMBURSEMENT FEE as established herein. The VILLAGE'S obligation is limited to the anzount(s) actually collected pursuant to the provisions of this Agreement for REIMBURSEMENT FEES. 9. The OWNER shall indemnify, defend and save harmless the VILLAGE, its officers, agents and employees, from any and all actions, claims or demands arising out of the existence, terms, administration, enforcement or attempted enforcement of any provision of this Agreement. The OWNER shall prosecute or defend any action, proceeding or cause, legal or otherwise, that may arise out of the existence, terms, administration, enforcement or attempted enforcement of any provisions of this AGREEMENT. The O'VV R will hold the VILLAGE, its officers, agents and employees, free and harmless from any costs, fees (including attorney's fees and expenses) or judgments which the VILLAGE, its officers, agents or employees may incur or become liable for pursuant to any such action, claim or cause. 10. Except as otherwise herein provided, this Agreement shall inure to the benefit of, and be binding upon, the parties, their successors and assigns. Any party to this agreement, or their respective successors or assigns may either in law or in equity, by suit, mandamus or other proceeding, enforce and compel performance of this Agreement. 11. In the event any part or portion of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining portions hereof shall continue in full force and effect. 12. This Agreement shall continue in full force and effect for a term of 20 years from the date set forth on page 1. At the end of said terms, this Agreement shall expire and be of no further force or effect. 4 13. This Agreement shall be recorded in the Office of the Recorder of Deeds of the county in which the PROPERTY and all BENEFITED PARCELS are located. OWNER shall pay all recording fees. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. OWNERS: Michael Wrasse VILLAGE OF OAK BROOK, an Illinois municipal corporation &e-x Xle By: Village President"`' erk E Stacy Wrasse STATE OF ILLINOIS SS. COUNTY OF DuPAGE I, , a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that and personally known to me to be the same persons whose names are subscribed in the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered the -said instrument as their-free and-voluntary act; for the uses and purposes therein set forth.- GIVEN under my hand and official seal, this day of 12003. STATE OF ILLINOIS SS. COUNTY OF DuPAGE Notary Public Con-nnission Expires: I, ,-j"o y C 6- RIE S J�4 , a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Karen M. Bushy, personally known to m e to be the Village President of the Village of Oak Brook and Linda K.•Gonnella, personally known to be the Village Clerk of said municipal corporation , and personally known to me to be the same persons whose names are subscribed in the foregoing instrument, appeared before me this day in person and acknowledged that as such Village President and Village Clerk of said municipal corporation, and caused the corporate seal of said Village to be affixed hereto pursuant to authority given by the corporate authorities of said corporation, as their free and voluntary act and as the free and voluntary act and deed of said municipal corporation for the uses and purposes therein set forth. GIVEN under my hand and official seal, this day of , 2003. OFFICIAL SEAL JOYCE RESH WYTARY PUBLIC, STATE OF ILLINOIS 66Y COPNiMSS1ON EXPMS:OW20MO 0 Commission Expires: 02/20/2003 15:39 6304720048 MARTIN CRAIG s EX IT A, LEGAL DESCRIPTION Legal Description: PAGE 08 The North 103. ' ' ' ' • • 68 fect of Lot 94 in Fred'k H. BarLlett's York Road Farm Estates,'a subd'nrision . of part of the West ha. lf of the Southeast Quarter and part of the East half of the Southwest Quarter of Section 13, Township 39 North, Range n, East of the Third Principal Meridian, according to the plat thereo recorded August 11, 1939 as Document 402497, in DuPage County, Illinois. Also (mown as Tract 1 In O'Halr- Wrasse Assessment Plat recorded November 19, 2001 as Document R2001-2S12611 in DuPage County, Illinois. 02/20/2003 15:39 9 0! 4�— r4-1 me Ph IP 6304720048 MARTIN CRAIG UK .1691-11-va LIST OF BE PROPERTIES PROPERTY LOCATION FRONTAGE 0 S 563 POPLAR (OWNER'S PARCEL) 107 feet 0 S 564 POPLAR 107 fect VACANT LOT NEXT TO I W 355 CONCORD 107 feet VACANT LOT NEXT TO I W 375 CONCORD' 107 feet SERVICE AREA PAGE 09 % SEWRE 250% 25% 25% 250/9 - ---------- to lbc divided into two lots each with 107 feet of frontage along POPlar tn Z 15 'KI 37 5- ra WATO, MAW VA 0 Z 41 -7 -7 ` 57o5� /°o ���� i eo N �o� o. - ---------- to lbc divided into two lots each with 107 feet of frontage along POPlar tn 02/20/2803 15:39 6304720048 MARTIN CRAIG EXIMT1 C ENOROVENENT COSTS AND REIMBURSEMENT FEES WATER MAIN EXTENSION pppLAR (]BETWEEN CONCORD AND HARVARD) PAGE 10 IMTROVEMENT COSTS: Engineering fees S 4,000.00 (for design and plan drawings for waxer main) 6}} water main SZ7,500.00 (fog' 6" D. I. P., cl 52 water main and parts, auguring 25 I_f_ of roadway, trench backFli, chlorination and testing) Surface restoration S 37000.00 Admin. Fee to Oak Brook S 500.00 Attorneys fees S 1,000.00 TOTAL COSTS $ 36.000.00 REnqB-cnRSEMENT F1cES: 25% of 536,000 — $9,000.00 for each Benefited Parcel hooldog up to new water main OKI i- I „J wr I �o 1A EXHIBIT P I viA n n 1 n 'b h � C, 0 G to C5 ',%J'0'7, C11(1,1-tA iyn Ities into said area from existing water -ind _tly owned and operated by the Oak Brook -,,1ene.ral vicinity of Yorkf'ield. on September 28, 1962) the Petitioner on to file an amended application instanter in de for Petltioner to enter into agreements 'i . -: al home owner& in the Yorkfield communityj ­`e original plan for Petitioner to enter trhe Yorkfield Home Owners Association, Inc. i"? r home owners associations) namely the Asoociation, Inc. and Yorkfield Civic Asso- Liaid cause during the course of the hearings -.. :> testifi(l to the urgent need for water and 0U "07- Yorkfield community, the area involved in Me case. At the conclusion of the hearing '',9, 1962, the case was marked "Heard and Taken' ,,r,,n, having considered the entire record advised in the premises, is of the opin- Brook Utility Company, petitioner corporation duly organized and J_ c, 6 under and by virtue of the laws of the StRt(-, of Illinois, with charter powers to con- 1)p,erate and maintain a water supply and system and a sewage collection and dimposal system in the State of Illinois) and � public utility within the meaning "An Act concerning public as amended; that said Petitioner '-plication to this Commission for a 1,A,­ ,crate 'of convenience and necessity to Terate and maintain a public water system sewer system in an area hereinafter by reason of the foregoing, the has jurisdiction over the Petitioner and of the subject matter herein; has been given pursuant to law aiLC "' ,ules and regulations of this Commission; Xo;titioner proposes to construct) operate -'r-,vin an extension to its existing water and its existing sewage disposal system irl order to provide said services to an unincor- community commonly referred to as " Yorkfield" in Du Page County, Illinois) and to transact a water and sewer public utility business in said area hereinafter more fully described in Finding 48577 is now transacting a water public utility business in "J York Township, Du Page Qd and demand for public water sewage disposal service in the by Said proposed extensions and and sewage disposal services to provide said services in community commonly known as '­k--afed in Du Page County, Illinois, if,ore particularly described as east by Cook County limits, by the city limits of Elmhurst -, ", y the center line of Roosevelt the west by the center line of all in York Township, Du Page ._ul legally described as The of Section 13, Township 39 ianE,e Eleven East of the Third Princi- Du Page County, Illinois; operation and maintenance i.=ater and sewer plant extensions in Finding (5) hereof will convenience and is necessary e eartificate of public convenience be granted to Petitioner for operation and maintenance of --opoued water and sewer facilities described in Finding (5) hereof; proposes to enter into contracts -A i,',ome owners in said Yorkf:Leld area (5) herein, whereby said home toward the costs for con- !,lie water system, including pumping nydrants, transmission and distribu- i�ia'lyxa aucl other appurtenances and facilities and used in conrection with the .'.,blic water service, and also for -.,,wage treatment and disposal plant �3anitary sewer purposes, consisting sewage collection mains and laterals, outlets and such other appurtenances and facilities tnBtalled and used in connection with the of sanitary sewage disposal service to C. "Ir-t its, caner -proposes to construct said water and said sanitary sewer collec- the Yorkfield area an d connect said "n' �fsystem now ser- Altioner's existin vicinity of Yor ield provided or in interest bearing noes at the e 01, 0%_,per annum is received from at least 200 said area within 120 days after the ztificate o f convenience and neces- a.Ll existing agreements and contracts, or proposed agreements or contracts, between the -iny home owners associations in said or between Petitioner and individual e ln raid area, should be set aside and 6eciared null and void; (10) that Petitioner should bra authorized to enter into agreements with individual home own ^rs residing; in c said Yorkfield area described in Finding (5) herein, j said agreements to set forth the terms and conditlovls under which water and sewer- facilities will be con struated and service made available by Petitioner, and that such an agreement shall be formulated and submitted by Petitioner to thin Commission within 20 days aftev the date of this order for Commission review and approval; (11) that all monies collected and received by Petitioner from individual home owners in said Yorkfield area Alk for the construction of facilities required to furn- ish public water and sewer service to said home owners and prospective future owners shall be con- -sidered -a-s- -contributions- in ai -d of- construction and shall so show on the books of the Petitioner, and shall riot be made a part of any valuation used in establishing Petitioner's rate base; (12) that Petitioner shall file with the Commission separ- ate estimates of the costs fbr said proposed, water facilities and for said proposed sanitary sewer facilities within 1 "0 days from the date of this order, and such est mates shall show the type and size of mains and pipe that will be used in said construction projects, and the total footage and unit costs of each size, along with such other attendant costs that would normally be included in such estimates; (13) that the certificate of convenience and necessity granted herein should be contingent upon Petitioner obtaining at leas 200 signed agreements from individual home owners in the Yorkfield area within 90 days from the date of this order; that failure to obtain said 200 agreements within said 90 days should make the certificate granted herein null and void; (14) that the rates, rules, regulations and conditions of service now in effect in Petitioner's presently certificated service area and as shown in the rate schedule on file with this Commission, shall be the rates, rules, regulations and conditions of service applicable to the Yorkfield area described in Find- ing (5) hereof, and said schedule should be posted in all offices of the Petitioner for a period of 30 days and should be designated as the rats) rules, regulations and conditions of service applicable to said Yorkfield area for water and sewer services upon commencement of said services in said area. IT I3 HEREBY CERTIFIED that public convenience and necessity require the construction, operation and maintenar.;i of a public water system and a public sewage collection and dispos- al system in the area commonly referred to as "Yorkfield" in York Township, Du Page County, Illinois, as more particularly described in Finding (5) herein, and for the transaction of a water and sewer public utility business by Oak Brook Utility e J �J 48577 IT IS THEREFORE ORDERED that a certificate of convenience and necessity be, and it 13 hereby, granted to Oak Brook Utility Compat.j for (1) the construction, operation and maintenance of a public water system and a public sewage collection and disposal system in the area commonly referred to as Yorkfield in York Township, Du Page County, Illinois, as described in Finding (5) of This order, and (2) the transaction of a water and sewer pub- lic utility business in connection therewith; that said certi- ficate shall be issued under the seal of this Commission and authenticated by its Secretary, all pursuant to the provisions of Section 55 of "An Act coicerning public utilities," as amended, and now in force. IT IS FURTHER ORDERED that the foregoing certificate is granted upon the express condition and provision that authority or permission to use the lands to be 'occupied by the above - described water and sewer facilities shall be secured from land- owners and /or public authoritiea as and where required by law. IT IS FURTHER ORDERED that the foregoing certificate is granted upon the further condition that said certificate shall be declared null and void at the expiration of 90 days from the date of this order if Petitioner fails to obtain at least 200 signed agreements from individual home owners in said Yorkfield area described in Finding (5) of this order within said 90 -day period. IT IS FURTHER ORDERED that the foregoing certificate is granted upon the express condition and provision that before any construction of said water and sewer facilities are commenced, Petitioner shall secure such permit or permits from the Depart - ment of Public Health of the State of Illinois, and from the Sanitary Water Board of the State of Illinois, or from such other public authorities as may be required by law, IT IS FURTHER ORDERED that the rates, rules, regulations and conditions of service now in effect in Petitioner's present- ly certificated service area, and as shown in the rate schedule on file with this Commission,shall be the rates, rules, regula- tions and conditions of service applicable to the area commonly - 5 - referred to as Yorkfield located in York Township, Du Page County, Illinois, as described in Finding (5)of this order, arid that said schedule shall be posted in a conspicuous place in 311 offices of the Oak Brook Utility Company for a period of 30 days prior to AMIL commencement of service, and shall be identified as the rates for is water and sewer service to be placed in effect for said area. IT IS FURTHER ORDERED that all monies received by Peti- necessary to provide water and sewer services to said home owners and future prospective customers in said area shall be considered as contributions in aid of construction and shall so show on the ',oks of the Oak Brook Utility Company and shall not be included in any figures establishing the rate base for said company. IT IS FUTTHER ORDERED that Oak Brook Utility Company shall provide said water and sewer facilities and services in accordance with the provisions of Finding 10 of this order. IT IS FURTHER ORDERED that Oak Brook Utility Company shall file with the Commission within 120 days from the date of this order, and in accordance with Finding (12) of this order, separate estimates of the costs for the proposed water facilities and proposed sewer facilities required to serve the area describ- ed in Finding ( 5 ) hereof. IT IS FURTHER ORDERED that any and all existing agree- ments and contracts or proposed agreements and contracts relating to the construction of water and sewer facilities in said York- field area and having Oak Brook Utility Company and any home owners association or individual home owners in said area as parties thereto identified as exhibits in this case are hereby set aside. IT IS FURTHER ORDERED that Oak Brook Utility Company shall submit a new contract form showing said company and indivi- dual home owners as parties for Commission review and approval within 20 days after the date of this order. tioner from individual home owners and future prospective custom- ers in said Yorkf field area for construction of the facilities necessary to provide water and sewer services to said home owners and future prospective customers in said area shall be considered as contributions in aid of construction and shall so show on the ',oks of the Oak Brook Utility Company and shall not be included in any figures establishing the rate base for said company. IT IS FUTTHER ORDERED that Oak Brook Utility Company shall provide said water and sewer facilities and services in accordance with the provisions of Finding 10 of this order. IT IS FURTHER ORDERED that Oak Brook Utility Company shall file with the Commission within 120 days from the date of this order, and in accordance with Finding (12) of this order, separate estimates of the costs for the proposed water facilities and proposed sewer facilities required to serve the area describ- ed in Finding ( 5 ) hereof. IT IS FURTHER ORDERED that any and all existing agree- ments and contracts or proposed agreements and contracts relating to the construction of water and sewer facilities in said York- field area and having Oak Brook Utility Company and any home owners association or individual home owners in said area as parties thereto identified as exhibits in this case are hereby set aside. IT IS FURTHER ORDERED that Oak Brook Utility Company shall submit a new contract form showing said company and indivi- dual home owners as parties for Commission review and approval within 20 days after the date of this order. All SWAIR. t >10 Kill lot! qT ;j ;7,7 1, LAP