2020-02-18 - Ordinance 2020-017 - APPROVING THE AMENDED AND RESTATED WATER SUPPLY CONTRACT BETWEEN THE NORTHWEST WATER COMMISSION AND ITS MEMBER COMMUNITIES ORDINANCE NO.2020 - 017
ORDINANCE APPROVING THE AMENDED AND RESTATED
WATER SUPPLY CONTRACT BETWEEN THE NORTHWEST WATER
COMMISSION AND ITS MEMBER COMMUNITIES
WHEREAS, the Village of Buffalo Grove is a member of the Northwest Water
Commission (hereinafter referred to as the "Commission") a water commission created under
Chapter 65, Article 11, Division 135, Illinois Compiled Statutes (65 ILCS 5/11-135-1 et seq.),
along with the Villages of Arlington Heights, Wheeling, and Palatine, municipal corporations in
Cook and Lake Counties, Illinois, collectively referred to as "Members"; and
WHEREAS, the Commission has been created to acquire and operate a common source
for supply of water and to develop facilities of sufficient capacity to furnish an adequate supply of
potable water to Commission members and customers; and
WHEREAS, the Commission has entered into a Water Supply Contract with the City of
Evanston, dated March 4, 1981, as amended, in order to have available Lake Michigan water in
the quantities contracted to be sold by it to its Members; and
WHEREAS, the Commission and each of its Members have previously entered into
substantially identical Northwest Water Commission Water Supply Contracts dated April 6, 1981,
and have amended said Water Supply Contracts by entering into substantially identical First
Amendments thereto; and
WHEREAS, the Commission and its Members have previously on April 4, 1983 entered
into a First Amended Water Supply Contract ("1983 Agreement"), an Amendment to the 1983
Agreement dated September 5, 1990, and a Second Amendment to the 1983 Agreement dated
September 20, 1993; and
WHEREAS, the Commission and the Municipalities desire to enter into the attached
Amended and Restated Water Supply Contract ("Contract") in order to consolidate the provisions
of the aforementioned Water Supply Contracts and Amendments, extend the term, and to provide
for other necessary and appropriate amendments to said contracts, amendments, and agreement;
and
WHEREAS, by entering into the Contract, the Village intends that the Contract shall
supersede the aforementioned contracts and amendments and that from andatter the effective date
of the attached Contract said contracts and amendments shall become null and void and that the
attached Contract shall thereupon become the entire agreement between and among the
Commission and the Village with regard to the matters addressed herein; and
WHEREAS, by the execution of the attached Contract, the Village is surrendering none
of its rights to the ownership and operation of its Municipal Systems, nor is the Commission
surrendering any of its rights to the ownership and operation of its Water Supply System,but each
expressly asserts its ownership of and continued right to operate such Systems consistent with the
Contract; and
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WHEREAS, the President and Board of Trustees of the Village of Buffalo Grove have
determined it to be in the best interest of the Village of Buffalo Grove and its citizens that the
"Amended and Restated Water Supply Contract Between the Northwest Water Commission and
the Village of Arlington Heights, the Village of Palatine, Village of Wheeling and the Village of
Buffalo Grove" be approved and executed on behalf of the Village of Buffalo Grove by its duly
authorized officials; and
NOW, THEREFORE, BE IT ORDAINED by the President and the Board of Trustees
of the Village of Buffalo Grove, Counties of Cook and Lake, State of Illinois:
Section A
The Amended and Restated Water Supply Contract Between the Northwest Water
Commission and the Village of Arlington Heights, the Village of Palatine, Village of Wheeling
and the Village of Buffalo Grove, a copy of which is attached to this Ordinance, and by this
reference incorporated herein and made a party hereof, be and the same hereby is approved.
Section B
The President and Village Clerk of the Village of Buffalo Grove are hereby authorized and
directed to execute the aforesaid Amended and Restated Water Supply Contract on behalf of the
Village of Buffalo Grove.
Section C
This Ordinance shall be in full force and effect from and after its passage and approval,
according to law.
AYES: 6 - Stein, Ottenheimer, Weidenfeld, Johnson, Smith, Pike
NAYES: 0—None
ABSENT: 0—None
PASSED: February 18, 2020
APPROVED: February 18 2020
Beverly Sussmb,
Village President
ATTEST:
Janet M. Sir 6 n, Village Clerk
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AMENDED AND RESTATED WATER SUPPLY CONTRACT
BETWEEN
THE NORTHWEST WATER COMMMISSION
AND
THE VILLAGE OF ARLINGTON HEIGHTS
THE VILLAGE OF BUFFALO GROVE
THE VILLAGE OF PALATINE
THE VILLAGE OF WHEELING
DATED NOVEMBER 4,2019
TABLE OF CONTENTS
Page
Recitals..................................................................................................................... 1
Paragraph1—Water Supply................................................................................... 3
(a) Quantity .............................................................. ................... 3
(b) Quality .................................................................................... 4
(c) "Take-or-Pay" Obligation....................................................... 5
(d) Commission Obligation.......................................................... 5
(e) Curtailments............................................................... ............ 5
Paragraph 2 Storage, Delivery, Distribution
andConservation ............................................................................................ 6
(a) Municipality Storage Requirement......................................... 6
(b) Points of Delivery ................................................................... 6
(c) Delivery Pressure .................................................................... 7
(d) Operation of Municipal Systems............................................. 8
Paragraph 3—Measuring Equipment...................................................................... 8
(a) Commission Meters and Records............................................ 8
(b) Municipality Check Meters..................................................... 9
(c) Unit of Measurement...................................I....I......I............... 10
(d) Meter Inaccuracy; Estimated Quantities... .............................. 10
(e) Notice of Tests, Calibrations and
Adjustments............................................................................ 11
Paragraph 4—Satisfaction of Payment Obligations under 1983 Agreement ......... 12
(a) .......................................................................................:........ 12
Paragraph 5 —Charges; Computation and
Termsof Payment.......................................................................................... 12
(a) Annual Charges...................................................................... 12
(b) Guarantee Payment ................................................................ 15
(c) Commission Dissolution........................................................ 18
Paragraph 6—Disputes, and Defaults of Payment
Obligations..................................................................................................... 18
(a) Payment Disputes; Obligation to Make
Disputed Payments; Right to Refund..................................... 18
(b) Payment Defaults ................................................................... 19
(c) Remedies................................................................................ 20
Paragraph7—Covenants ........................................................................................ 21
(a) Commission Best Efforts; Conditions.................................... 21
(b) Continuous Supply;Additional Supplies............................... 21
(c) Title; Liability; Hold Harmless .............................................. 21
(d) Commission Charges and Rates Covenant............................. 22
(e) Municipality Charges and Rates
Covenant................................................................................. 23
(f) Additional Municipality Covenants ....................................... 23
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(g) Character of Payment Obligations as
Water Revenue Obligations ................................................... 24
(h) Character of Payment Obligations as
Operating Expenses................................................................ 25
Paragraph 8—Service to Others ................................................... ............... 26
Paragraph 9—Force Majeure.................................................................................. 26
Paragraph 10—Modification .................................................................................. 27
Paragraph 11 —Non-Assignability.......................................................................... 28
Paragraph 12—Regulatory Bodies ......................................................................... 28
Paragraph13—Notices........................................................................................... 28
Paragraph 14—Severability; Conflicts.................................................................... 29
Paragraph 15 —Effective Date and Term................................................................. 30
Paragraph 16—Entire Agreement............................................................................ 30
Indexof Terms.......................................................................................................... 33
ExhibitA......................................................................................................
ExhibitB................................................................................................................... B-1
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AMENDED AND RESTATED
WATER SUPPLY CONTRACT
BETWEEN THE
NORTHWEST WATER COMMISSION
AND
THE VILLAGE OF ARLINGTON HEIGHTS, THE VILLAGE OF BUFFALO GROVE,
THE VILLAGE OF PALATINE,AND THE VILLAGE OF WHEELING
THIS AMENDED AND RESTATED WATER SUPPLY CONTRACT (hereinafter
referred to as this "Contract") made and entered into as of this (gam day of RiQr�w! 2020, by,
between and among the NORTHWEST WATER COMMISSION (hereinafter referred to as the
"Commission") a water commission created under Chapter 65, Article 11, Division 135, Illinois
Compiled Statutes(65 ILCS 5/11-135-1,et seq.), and the VILLAGE OFARLINGTON HEIGHTS
(hereinafter sometimes referred to as "Arlington Heights"), the VILLAGE OF BUFFALO
GROVE(hereinafter sometimes referred to as "Buffalo Grove"), the VILLAGE OF PALATINE
(hereinafter sometimes referred to as "Palatine"), the VILLAGE OF WHEELING (hereinafter
sometimes referred to as "Wheeling"), municipal corporations in Cook and Lake Counties, Illinois
acting under the Constitution and laws of the State of Illinois, and each of them, (hereinafter
sometimes referred to individually as the "Municipality" and collectively as the "Municipalities"),
WHEREAS,the Commission has been created to acquire and operate a common source of
supply of water and to develop facilities of sufficient capacity to furnish an adequate supply of
potable water to Commission members and customers; and
WHEREAS,each of the Municipalities has received from the State of Illinois Department
of Transportation an allocation of Lake Michigan water as detailed in said Department's
Administrative Opinion and Order LMO 80-4 and, in the case of Palatine, as modified in said
Department's Administrative Opinion and Order LMO 81-3; and
WHEREAS, the Commission has entered into a Water Supply Contract with the City of
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Evanston, dated March 4, 1981, as amended, (hereinafter referred to as the 'Evanston Contract")
in order to have available Lake Michigan water in the quantities herein contracted to be sold by it
to the Municipalities; and
WHEREAS, the Commission and each of the Municipalities have previously entered into
substantially identical Northwest Water Commission Water Supply Contracts dated April 6, 1981,
and have amended said Water Supply Contracts by entering into substantially identical First
Amendments thereto dated March 15, 1982, in the case of Arlington Heights, Buffalo Grove and
Wheeling, and dated March 8, 1982 in the case of Palatine; and
WHEREAS, the Commission and the Municipalities have previously on April 4, 1983
entered into a First Amended Water Supply Contract ("1983 Agreement"), an Amendment to the
1983 Agreement dated September 5, 1990 and a Second Amendment to the 1983 Agreement dated
September 20, 1993; and
WHEREAS, each of the Municipalities owns its own waterworks system (hereinafter
referred to as the "Municipal Systems" and generally depicted in Exhibit A attached hereto and by
this reference incorporated herein and made a part hereof), and is desirous of ensuring an adequate
and dependable public water supply; and
WHEREAS, the Commission and the Municipalities desire to enter into this Contract in
order to consolidate the provisions of the aforementioned Water Supply Contracts, First
Amendments, and to provide for other necessary and appropriate amendments to said contracts,
amendments and agreement; and
WHEREAS, by entering into this Contract, the parties intend that it shall supersede the
aforementioned contracts and amendments and that from and after the effective date of this
Contract said contracts and amendments shall become null and void and that this Contract shall
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thereupon become the entire agreement between and among the Commission and the
Municipalities with regard to the matters addressed herein; and
WHEREAS, the parties each hereby acknowledge that the Commission will use this
Contract as the basis for obtaining credit through the issuance of the Commission's Bonds or other
instruments of debt as authorized by law and as the source of funds for payment of the principal
of premium, if any, and interest on such Bonds, for the payment of its construction, maintenance
and operating expenses, and for the establishment and maintenance of accounts and reserves for
such purposes as may be required or authorized by applicable statutes and the ordinance or
ordinances authorizing the issuance of the Bonds or other instruments of debt; and
WHEREAS, by the execution of this Contract, the Municipalities are surrendering none of
their rights to the ownership and operation of their respective Municipal Systems, nor is the
Commission surrendering any of its rights to the ownership and operation of its Water Supply
System, but each expressly asserts its ownership of and continued right to operate such Systems
consistent with this Contract;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements herein contained,and pursuant to authority under the Constitution and laws of the State
of Illinois, and particularly Chapter 65, Article 11, Division 135, Illinois Compiled Statutes (65
ILCS 5/11-135,et seq.), 2012;Article VII, Section 10 of the Illinois Constitution of 1970; Chapter
127, Section 741 et seQ., Illinois Compiled Statutes, 2012; and the home rule powers of the
Municipalities, the Commission and the Municipalities hereby agree as follows:
1. Water Supply.
(a) Quantity. Subject to the provisions stated in this Contract, each of the
Municipalities agrees to purchase from the Commission and the Commission agrees to sell to each
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of the Municipalities, an amount of Lake Michigan water necessary from time to time to serve the
full water requirements of all present and future customers of the respective Municipalities
Municipal Systems, including municipal use, system leakage and metering losses, located within
or without the corporate limits of such Municipalities (hereinafter referred to as the Municipalities
respective "Full Water Requirements"); provided, however, that the Commission's obligation to
deliver water to each Municipality hereunder during each calendar year shall be limited to a
maximum annual amount determined on the basis of that Municipality's average daily water
allocation in effect for such calendar year as set forth in Exhibit B attached hereto and by this
reference incorporated herein and made a part hereof(hereinafter referred to as each Municipality's
"Allocation"); and provided further that the maximum quantity of water that the Commission shall
be required to deliver to any Municipality in any one day shall be an amount equal to 1.8 times
that Municipality's then average daily water allocation as set forth in Exhibit B.
(b) Quality.The Commission shall provide in any and all contracts for its water
supply that all water delivered to the Commission under said contracts shall be of such quality, at
the point of delivery to the Commission under said contracts, as to meet the requirements of any
Federal, State or local agency as shall have jurisdiction from time to time for establishing public
water supply standards. The Commission shall use its best efforts to prevent contamination during
transmission from said point of delivery to the Municipalities respective Points of Delivery. The
Commission shall not, however, be responsible for water treatment except to the extent necessary
to maintain bacteriological standards in accordance with applicable regulations.
(c) "Take-or-Pay" Obligation. Notwithstanding any other provision of this
Contract, if at any time any Municipality shall fail to take from the Commission its Full Water
Requirements for whatever reason, that Municipality shall nevertheless be deemed to be taking
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such Full Water Requirements from the Commission for purposes of determining payments due
the Commission under Paragraph 5 hereof. Each of the Municipalities hereby acknowledges its
unconditional obligation to make all payments coming due under Paragraph 5 on the basis of its
Full Water Requirements regardless of whether all or any portion of its Full Water Requirements
are or are not received from or delivered by the Commission, regardless of the reason for any
failure to receive or deliver such Full Water Requirements.
(d) Commission Obligation. The Commission shall use its best efforts to
remain in a position to furnish water as herein contracted to be sold to the Municipalities, but its
obligation hereunder shall be limited by the completion and capacity of the Commission's Water
Supply System; the amount of water from time to time available to the Commission, accounting
for ordinary transmission loss, including standard metering error, between the Commission's
source of supply and the Points of Delivery; and contracts between the Commission and its other
customers.The Commission undertakes to use reasonable care and diligence to provide a constant
supply of water as herein provided for, but reserves the right at any time to turn off the water in its
mains for emergency and maintenance purposes. The Commission shall give forty-eight (48)
hours' notice of any such turn-off, except that in emergencies it shall give notice which is
reasonable under the particular circumstances.
(e) Curtailments. In the event that it should become necessary for the
Commission to limit the delivery of water through its Water Supply System for any reason, each
of the Municipalities shall be entitled to receive during such period of curtailment its respective
pro-rata share, based upon the Municipalities' actual usage in the prior Service Year. Nothing in
this Contract shall be construed to prohibit the Municipalities or any of them from serving their
customers in cases of emergency from any source other than the Commission, including wells
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owned by the Municipalities and maintained for emergency use in accordance with applicable
Rules of the Illinois Department of Transportation. It is expressly understood and agreed,
however, that each of the Mun.icrpalities shall nevertheless be deemed to be taking its respective
Full Water Requirements during any such period of curtailment or emergency for the purpose of
determining payments due from it to the Commission under Paragraph 5 hereof, and no such
curtailment or emergency shall in any way affect or relieve the Municipalities'respective payment
obligations hereunder.
2. Storage, Delivery, Distribution and Conservation.
(a) Municipality Storage Requirement. Each of the Municipalities shall provide
facilities adequate at all times to receive all water required to be delivered hereunder, and shall
provide storage capacity for not less than their respective average daily water allocations from time
to time as set forth in Exhibit B hereto.
(b) Points of Delivery. Each Municipality's "Points of Delivery" shall be
defined as the points of outlet where the water delivered hereunder leaves the Commission's Water
Supply System and enters such Municipality's receiving storage facilities. The Points of Delivery
of water to the Municipalities from the Commission's Water Supply System shall be at the
following approximate locations and maximum required elevations:
Arlington Heights:
1 . 3702 N. Kennicott Avenue—777.0'U.S.G.S.
2 . 1405 W. Kirchoff Road—739.0'U.S.G.S.
3 . 222 N. Ridge —749.0'U.S.G.S.
4 . 2302 N. Arlington Heights Road—747.2' U.S.G.S.
Buffalo Grove:
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1. 400 LaSalle Lane—683.25'U.S.G.S.
2. 120 Horatio Boulevard—678.0' U.S.G.S.
3. . 345 S. Arlington Heights Road —731.0'U.S.G.S.
4. 525 N. Arlington Heights Road—703.25'U.S.G.S.
Palatine:
1. Palatine High School—781.33'U.S.G.S.
2. Salt Creek at Michigan Avenue— 763.68'U.S.G.S.
Wheeling:
1. Commonwealth Ed./Soo Line R-O-W South of Lake Cook Road—
695.00'U.S.G.S.
2. Wheeling Road North of Hintz Road—695.00'U.S.G.S.
3. Commonwealth Ed. R-O-W North of Old Willow Road—695.00'
U.S.G.S.
The location of Points of Delivery may change from time to time upon a unanimous vote
of the Commissioners. A current list of all Points of Delivery shall be kept at the offices of the
Commission. A change in the Points of Delivery shall not require an amendment to this Contract.
(c) Delivery Pressure. Water shall be delivered at atmospheric pressure such
that an air gap exists between the Commission's Water Supply System and each Municipality's
receiving storage facilities; provided, however, that in the case of Wheeling's Points of Delivery,
where water may be delivered at direct pressure during such periods, if any, when delivery
conditions are such that delivery takes place at a point higher than the maximum required elevation,
and in the case of Buffalo Grove's second Point of Delivery (120 Horatio Boulevard), where a
water line connecting a Village well to the receiving storage facility and to Buffalo Grove's
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Municipal System intersects the Water Supply System at a point located between the Commission's
meter and said Point of Delivery,backflow prevention equipment will be provided and maintained
in good working order at all times.
(d) Operation of Municipal Systems. Each of the Municipalities agrees to
operate its Municipal System from the Points of Delivery on to the consumer in such a manner as
to at no time place the Commission and its Water Supply System in jeopardy of failing to meet(1)
the regulations of any agency or governmental authority having jurisdiction over the operation of
public water supply systems or (2) the commitments the Commission has to its other customers
and to its water suppliers. Each of the Municipalities also agrees to notify the Commission as
promptly as possible of all emergency and other conditions which may directly or indirectly affect
the quantity or the quality of the water to be received hereunder or the Commission's Water Supply
System or water supply. Each of the Municipalities further agrees to take reasonable measures to
conserve water.
3. Measuring Equipment.
(a) Commission Meters and Records. The Commission shall furnish, install,
operate, maintain, repair and replace at its own expense at the Points of Delivery such metering
equipment of a type meeting the standards of the American Water Works Association (hereinafter
referred to as "AWWA") as shall be necessary for measuring properly the quantity of water
delivered under this Contract, together with such structures as the Commission shall deem
necessary to house such equipment and devices. The measurement of water delivered to the
Municipalities shall be by said equipment. Such meter or meters and other equipment so installed
and structures so constructed shall remain the property of the Commission. Such structures and
equipment shall be located upon land in which an ownership interest or appropriate easement rights
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have been provided to the Commission by the respective Municipalities for such purpose. Both
the Commission and the respective Municipalities shall have access to such structures and
equipment for examination and inspection at all reasonable times, but the reading for billing
purposes, calibration and adjustment of the equipment shall be done only by the employees or
agents of the Commission, not more than once in each calendar year, the Commission shall, if so
requested in writing by any Municipality, calibrate its meters in the presence of representatives of
each of the Municipalities. The parties shall jointly observe any adjustments which are made to
the meters in case any adjustments shall be necessary.
For the purpose of this Contract, the official record of readings of the meter or meters shall
be the journal or other record book of the Commission in its office in which the records of the
employees or agents of the Commission who take the readings are or may be transcribed. Upon
written request of any Municipality, the Commission will give such Municipality a copy of such
journal or record book, or permit the Municipality to have access thereto in the office, of the
Commission during regular business hours.
(b) Municipality Check Meters. Each of the Municipalities may, at its option
and own expense, install and operate a check meter to check each meter installed by the
Commission at such Municipality's Points of Delivery, but except in the cases hereinafter
specifically provided to the contrary, the measurement of water for the purpose of this Contract
shall be solely by the Commission's meters. All such check meters shall be of standard make,shall
meet AWWA standards, and shall be subject at all reasonable times to inspection and examination
by any employee or agent of the Commission,but the calibration and adjustment thereof shall be
made only by the respective Municipalities, except during any period when a check meter may be
used pursuant to the provisions hereof for measuring the amount of water delivered, in which case
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the calibration and adjustment thereof shall be made by the Commission with like effect as if such
check meter or meters had been furnished and installed by the Commission. Any calibration of
such meters shall be done only in the presence of a representative of the Commission and the
parties shall jointly observe any adjustment in case any adjustment is necessary.
(c) Unit of Measurement, The unit of measurement for water delivered
hereunder shall be gallons of water, U.S. Standard Liquid Measure, and all measuring devices
shall, unless the parties otherwise agree, be so calibrated. ' In the event that it should become
necessary or desirable to use other units of measurement, the basis of conversion shall be that 7.48
gallons is equivalent to one (1) cubic foot.
(d) Meter Inaccurac Estimated uantities. If any party hereto at any time
observes a variation between a delivery meter and any check meter, or any other evidence of meter
malfunction, such party shall promptly notify all of the other parties and the parties hereto shall
then cooperate to procure an immediate calibration test and adjustment of such meter to accuracy
and shall jointly observe any such adjustment.
If, upon any test, the percentage of inaccuracy of any meter is found to be in excess of two
percent (2%), the registration thereof shall be corrected, by agreement of the parties based upon
the best data available, for a period extending back to the time when such inaccuracy began, if
such time is ascertainable, and if such time is not ascertainable, then for a period extending back
one-half(1/2) of the time elapsed since the last date of calibration, but in no event further back
than a period of six (6) months.
If for any reason any meters are out of service or out of repair so that the amount of water
delivered cannot be ascertained or computed from the reading thereof, the water delivered during
the period such meters are out of service or out of repair shall be estimated and agreed upon by the
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parties hereto upon the basis of the best data available. For such purpose, the best data available
shall be deemed to be the registration of any check meter or meters if the same have been installed
and are accurately registering. Otherwise, the amount of water delivered during such period may
be estimated (1)by correcting the error if the percentage of the error is ascertainable by calibration
tests or mathematical calculations, or (2) if the error is not ascertainable by calibration tests or
mathematical calculation,by estimating the quantity of delivery by considering other data deemed
relevant by the Parties, including but not limited to deliveries during preceding periods when the
meter or meters were registering accurately. During any period of such disagreement, the
Commission's estimate of water delivered shall be used for the purpose of computing payments
due under this Contract, and any adjustments based upon later resolution of such disagreement
shall be made by appropriate adjustments to the quarterly installment payments of the affected
Municipalities'Annual Charges remaining to be paid during the Service Year.
(e) Notice of Tests, Calibrations and Adjustments. Each party shall give the
other parties forty-eight (48) hours' notice of the time of all tests, calibrations and adjustments of
meters so that the other parties may conveniently have a representative present. If said
representatives are not present at the time set in such notice/testing, calibration and adjustment,
then the party may, notwithstanding any other provision of this Paragraph,proceed in the absence
of said representatives.
4. Satisfaction of Payment Obligations under 1983 Agreement.
(a) It is hereby understood and agreed that all payments required pursuant to
Paragraph 4 of the 1983 Agreement have been paid.
5. Charges; Computation and Terms of Payment.
(a) Annual Charges. Each of the Municipalities agrees to pay the Commission,
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during each "Service Year," an "Annual Charge" which shall be the respective "Municipality's
Share" of the Commission's "Net Annual Cost".
The "Service Year" shall extend from May 1 to April 30. The dates for a service year may
be changed by majority vote of the Commissioners.Each "Municipality's Share" shall be a fraction
of which (1) the numerator is the amount of water delivered (or deemed to be delivered under
subparagraph 1(c) above if less than its Full Water Requirements are taken) to that Municipality
by the Commission during the prior twelve consecutive month period ended on December 31
immediately preceding the start of the Service Year in question and(2)the denominator is the total
amount of water delivered (or deemed to be delivered under subparagraph 1(c) above if less than
their total Full Water Requirements are taken) to all of the Municipalities by the Commission
during such twelve consecutive month period.
The Commission's "Net Annual Cost" shall be an amount determined by the Commission
as the excess of"Commission Expenses" over "Commission Receipts" during the Service Year.
"Commission Expenses" shall be those amounts determined from time to time by the Commission
to be necessary: (1) to pay, as they come due, the costs of operation and maintenance of the
Commission's Water Supply System, including those charges payable by the Commission under
the Evanston Contract; (2) to pay, as they come due, the principal of, at maturity or pursuant to
mandatory redemption requirements,premium,if any, and interest on any loans obtained or bonds
issued by the Commission; (3) to provide an adequate depreciation fund for the Commission's
Water Supply System as determined by the Commission on the basis of its statutory duties and its
obligations under the Bonds and the ordinance or ordinances authorizing the issuance of the
Bonds; (4) to comply with the covenants of the ordinance or ordinances authorizing the issuance
of any loans obtained or bonds issued by Commission; (5)to meet parity bond requirements of the
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ordinance or ordinances authorizing the issuance of any loans obtained or bonds issued by
Commission; (6) to repay all obligations incurred by the Commission for which other adequate
provision has not been made; and (7) to fund other such reserves as are deemed appropriate and
prudent by the Commission.
Commission Receipts shall be those amounts (if any)determined from time to time by the
Commission to be available from (1) rates and charges to be collected by the Commission under
water service contracts with Commission customers or members other than the Municipalities; (2)
any other revenues (other than revenues collected by the Commission pursuant to this Contract)to
be collected by the Commission for or with respect to the use or services of its Water Supply
System; (3) interest to be credited to the Water Fund established by the initial ordinance
authorizing the issuance of any loans obtained or bonds issued by Commission; and(4)any surplus
on hand, without regard to its source, and, in the sole discretion of the Commission, available to
the Commission to pay or provide for Commission Expenses during the Service Year.
The Commission's financial books and records shall be audited annually by a qualified
independent certified public accountant. Each of the Municipalities shall be provided with a report
of each such annual audit.
On or before two months prior to the commencement of a new fiscal year,the Commission
shall prepare a budget for the next following Service Year and shall in such budget determine the
Net Annual Cost and each Municipality's Share thereof, and each Municipality's Annual Charge
for the next following Service Year. The Commission shall then deliver to each of the
Municipalities a statement of such Net Annual Cost, that Municipality's Share thereof and its
Annual Charge,which statement shall include a detailed explanation of the computations thereof.
Said statement shall serve as the basis for each Municipality's payment of its Annual Charge during
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the said next following Service Year.
Following receipt of the aforesaid statement each of the Municipalities shall pay to the
Commission, without further demand by the Commission, said Municipality's Annual Charge.
Said Annual Charge shall be paid in advance in four installments as follows: 30% of the Annual
Charge on or before May 1 and August 1, and 20% of the Annual Charge on or before November
1 and February 1 of each Service Year. Payments under this Contract shall be made to the
Commission at its principal office or, upon written notice to the Municipalities, directly to a bank
or trust company selected by the Commission as a depository of funds received hereunder to carry
out the purposes of this Contract.
Throughout the duration of each Service Year, the Commission shall analyze and, if
necessary, revise its budget and review each Municipality's Share and its Annual Charge required
hereunder to determine if such Annual Charges are sufficient to meet the Commission's reasonably
foreseeable obligations as they come due and to determine if said Municipality's Shares are
equitable as among the Municipalities. In the event that such Annual Charges are deemed not
sufficient for any reason, or in the event that such Municipality's Shares are deemed inequitable
due to any substantial unforeseen change in any Municipality's water needs, the Commission shall
adjust any or all of the Municipalities'Annual Charges to provide sufficient and equitable amounts
provided, however, that in no event shall the Municipalities' Annual Charges, taken together, be
less than an amount sufficient to cover the Net Annual Cost; and, provided further, that no such
adjustment shall be permitted if, as a result, the Commission would not be able to meet
Commission Expenses as they came due or if such adjustment would violate any Commission
obligation under any loans obtained or bonds issued by Commission or the ordinance or ordinances
authorizing the issuance of any loans obtained or bonds issued by Commission. A detailed
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statement setting forth the reason for any such adjustments and the calculation thereof shall be
delivered to each of the Municipalities no less than thirty (30)days prior to the due date of the first
installment payment to be based thereon. Any additional amounts due the Commission or
reductions due any Municipality pursuant to any such adjustment shall be paid or credited, as the
case may be,in equal installments as part of the installment payments remaining to be paid during
the Service Year in question.
In addition to any adjustments that may be made pursuant to the foregoing paragraph, the
Commission may also bill the Municipalities for their respective Municipality's Shares of any
amounts required by the Commission to cover any final Quantity Charge issued by the City of
Evanston or any other water supplier to the Commission pursuant to the provisions of the Evanston
Contract or contract with any other water supplier, and each of the Municipalities hereby agrees
to pay the amount of any such bill to the Commission within 21 days after delivery by the
Commission of such bill.
(b) Guarantee Payment. In the event that any Municipality shall fail to make
in full any quarterly installment payment claimed by the Commission to be due under
subparagraph 5(a) hereof, and such non-payment shall continue for a period in excess of thirty(30)
days from the due date, each of the other, non-defaulting Municipalities agrees that it shall, on
each of its regular quarterly installment payment dates following such non-payment and until all
arrearages, including any additional non-payments by the defaulting Municipality, have been
eliminated, make, in addition to all other payments hereunder required, a quarterly "Guarantee
Payment" which shall be calculated by multiplying its "Guarantee Share" by the "Guarantee
Revenue Need".
Each non-defaulting Municipality's "Guarantee Share" shall be a fraction of which (1) the
15
numerator is the amount of water delivered, or deemed to be delivered under subparagraph 1(c)
hereof, to that Municipality during the most recent quarterly billing period for which the
Commission has complete data and (2) the denominator is the total amount of water delivered, or
deemed to be delivered under subparagraph l(c)hereof, during the same quarterly period to all of
the Municipalities which are then not in default in their payments due to the Commission pursuant
to this Paragraph 5.
The "Guarantee Revenue Need" shall be an amount determined by the Commission to be
necessary to be collected on or before the next quarterly installment payment date in order to permit
the Commission to meet all of its obligations as they come due, including amounts sufficient: (1)
to pay the costs of operation and maintenance of the Water Supply System,including those charges
payable by the Commission under the Evanston Contract; (2) to provide an adequate depreciation
fund for the Water Supply System as determined by the Commission on the basis of its statutory
duties and its obligations under any loans obtained or bonds issued by Commission and the
ordinance or ordinances authorizing the issuance of any loans obtained or bonds issued by
Commission; (3) to pay the principal of, at maturity or pursuant to mandatory redemption
requirements,premium, if any, and interest on the Bonds; (4) to comply with the covenants of the
ordinance or ordinances authorizing the issuance of any loans obtained or bonds issued by
Commission; and (5) to carry out the Commission's corporate purposes and powers,
notwithstanding the defaulting Municipality's failure to make the payments claimed to be due from
it under this Paragraph 5. For purposes of this subparagraph (b), a "sufficient" amount shall mean
an amount adequate, when taken together with any and all other amounts available, in the sole
discretion of the Commission, to enable the Commission to meet its obligations and
responsibilities as they come due, including without limitation the making of all deposits required
16
to be made under the ordinance or ordinances authorizing the issuance of any loans obtained or
bonds issued by Commission.
The Commission agrees to notify each non-defaulting Municipality of the amount of any
Guarantee Payment required under this subparagraph (b) at least 30 days in advance of the next
quarterly installment payment date, to supply the Municipality with all supporting calculations,
and to certify to the Municipality that the Guarantee Payment is necessary to permit the
Commission to meet its obligations as they come due. The Commission further agrees to advise
the non-defaulting Municipalities of steps being taken to cure the default.
Nothing in this subparagraph (b) shall be construed to relieve the defaulting Municipality
of its obligation to make all payments due hereunder, calculated in accordance with subparagraphs
S(a) and without regard to this subparagraph (b), or to limit the rights of the Commission, the non-
defaulting Municipalities, the holders of any loans obtained or bonds issued by Commission or
any trustee appointed for the benefit of the holders of any loans obtained or bonds issued by
Commission from enforcing this Contract at law or in equity, by specific performance, mandamus
or otherwise.
The Commission agrees to reimburse the non-defaulting Municipalities for any additional
sums paid by them as Guarantee Payments in accordance with this subparagraph(b), together with
interest thereon at the rate of interest actually paid to the Commission on the past due amounts
under subparagraph 6(b), by appropriate adjustments to the quarterly installment payments of the
non-defaulting Municipalities' Annual Charges, at such time as the past due amounts have been
paid to the Commission and become available in the Surplus Account or such other fund or account
from which such reimbursement may be paid under the ordinance or ordinances authorizing the
issuance of any loans obtained or bonds issued by Commission;provided,however,that the parties
17
hereto hereby acknowledge and agree that the Commission's reimbursement obligation under this
subparagraph (b) shall be subordinate to the Commission's obligations under the ordinance or
ordinances authorizing the issuance of any loans obtained or bonds issued by Commission and
applicable statutes.
(c) Commission Dissolution. In the event of a dissolution of the Commission,
Commission assets shall be distributed to each of the Municipalities according to their respective
percentage of water used in the prior five (5) Service Years.
6. Disputes and Defaults of Payment Obligations.
(a) Payment Disputes; Obligation to Make Disputed Payments; Right to
Refund. In the event that any of the Municipalities desires to dispute all or any part of any payment
claimed by the Commission to be due pursuant to this Contract, or the basis for any such payment,
that Municipality shall nevertheless pay the full amount of such payment when claimed by the
Commission to be due and shall provide written notification to the Commission, not later than the
due date of such payment, that the payment is disputed, the grounds for dispute and the amount in
dispute, and shall also provide a copy of such notification to each of the other Municipalities.
Upon any notification of dispute given as hereinabove set forth representatives of the
Commission shall meet with representatives of the disputing Municipality to resolve such dispute.
In the event that said representatives are unable to resolve the dispute within thirty (30) days
following the date of notification the dispute shall be deemed unresolved, unless extended
mutually by the parties, and the parties shall be allowed to pursue any and all remedies under this
Contract. The existence of such dispute shall not excuse the Municipality in question from
continuing to make all payments from time to time claimed by the Commission to be due under
this Contract as such payments come due; provided, however, that should any such dispute be
18
finally resolved in favor of the Municipality so as to establish that excessive payments were
demanded by the Commission and paid by said Municipality,the excess amounts of said payments,
together with interest on such amounts at the highest legal rate payable by the Commission, not to
exceed 75% of the prime rate of interest established by the largest bank in the State of Illinois
measured in terms of total assets, shall be refunded to said Municipality by means of a credit on
its first quarterly installment payment due for the Service Year next following the Service Year in
which such dispute is finally resolved or on such earlier quarterly installment payment as may be
agreed to by the Commission.
No Municipality shall be entitled to any adjustment or relief on account of any disputed
charges unless the disputed charges are brought to the attention of the Commission within the time
and in the manner herein specified, or within a reasonable period from the time the Municipality
knew or should have known of the facts giving rise to the dispute.
(b) Payment Defaults. In the event that any Municipality shall fail to make, on
or before the due date, any payment or portion thereof claimed by the Commission to be due
pursuant to this Contract, interest on the amount of such payment or unpaid portion thereof shall,
whether or not such payment is disputed, accrue during the period of non-payment at the then
maximum legal rate payable by that Municipality, not to exceed 100% of the prime rate published
by the Wall Street Journal measured in terms of total assets.
In the event that any payment or portion thereof claimed by the Commission to be due
pursuant to this Contract is not made within thirty (30) days from the date such payment becomes
due, the Commission may at its option and in its discretion, and whether or not such payment is
disputed, reduce or discontinue delivery of water to the defaulting Municipality until the amount
claimed to be due to the Commission is paid in full with interest as herein specified. The
19
Commission shall give the defaulting Municipality ten (10) days notice of its intention to reduce
or discontinue delivery of water in accordance with this subparagraph (b) and shall provide the
defaulting Municipality a reasonable opportunity for a hearing prior to any reduction or
discontinuance. If the Commission reduces or discontinues the delivery of water under such
circumstances, the Municipality shall, nevertheless, continue to be liable to make all payments
hereunder as if it were taking its Full Water Requirements.
(c) Remedies, In addition to the rights specified in subparagraph (b), the
Commission, any non-defaulting Municipality, the holders of any loans obtained or bonds issued
by Commission and any trustee appointed for the benefit of the holders of any loans obtained or
bonds issued by Commission shall have all other rights and remedies available at law or in equity
for breach of any of the provisions of this Contract, including the right to specifically enforce such
provisions or to seek mandamus, which rights shall be available with respect to any and all
payments claimed to be due hereunder, whether or not such payments are in dispute, it being the
intent of the parties that said payments shall continue to be made during periods of dispute,subject
to refund as provided in subparagraph 6(a) above in the event that such dispute is resolved in favor
of a disputing Municipality.
7. Covenants.
(a) Conditions. It is expressly understood and agreed that any obligation on the
part of the Commission to finance, construct, maintain, improve, expand, and operate the Water
Supply System and to deliver water hereunder shall be conditioned upon the following: (1)
receiving the necessary permits and approvals of all Federal, State and local governmental entities
and agencies having jurisdiction over the project or any aspect of it; (2)sale of any loans obtained
or bonds issued by Commission in an amount to provide for the construction and acquisition of
20
the Commission's Water Supply System; (3) the Commission's ability to obtain all necessary
material,labor,and equipment necessary for construction and/or maintenance of the Commission's
Water Supply System; (4) the Commission's ability to secure and maintain an adequate water
supply under the Evanston Contract or through other available means; and (5) the respective
Municipalities construction and maintenance of all equipment and facilities necessary to receive
and take water from the Commission at the Points of Delivery.
(b) Continuous Supply; Additional Supplies.The Commission shall, subject to
the other terms and conditions of this Contract, continually hold itself ready, willing, and able to
supply water to the Municipalities. The Commission shall also use its best efforts, consistent with
its legal obligations to its other members and customers and consistent with fair and equitable
treatment of all of its members,to supply the Municipalities with such additional amounts of water
as may from time to time be allocated to any of them by the Illinois Department of Transportation
over and above the allocation amounts set forth in Exhibit B hereto, but the Commission does not
hereby guarantee to supply such additional amounts.
(c) Title; Liability; Hold Harmless. Title to all water supplied hereunder shall
remain in the Commission to the Points of Delivery, and upon passing each Point of Delivery, title
to the Water shall pass to the respective Municipalities. Each party hereto hereby agrees to save
and hold the other parties harmless from all claims, demands, and causes of action which may be
asserted by anyone on account of the transportation, delivery, and disposal of water while title is
in such party.This covenant is not made for the benefit of any third party.
(d) Commission Charges and Rates Covenant. The Commission hereby
covenants to establish such charges and rates for water supplied to the Municipalities as will be
sufficient at all times(1)to pay the costs of operation and maintenance of its Water Supply System,
21
including those charges payable by the Commission under the Evanston Contract; (2) to provide
an adequate depreciation fund for its Water Supply System as determined by the Commission on
the basis of its statutory duties and its obligations under any loans obtained or bonds issued by
Commission and the ordinance or ordinances authorizing the issuance of the Bonds any loans
obtained or bonds issued by Commission; (3) to pay the principal of, at maturity or pursuant to
mandatory redemption requirements, premium,if any, and interest on any loans obtained or bonds
issued by Commission; (4) to comply with the covenants of the ordinance or ordinances
authorizing the issuance of any loans obtained or bonds issued by Commission; and (5) to carry
out its corporate purposes and powers.
For purposes of this subparagraph (d), a "sufficient" amount shall mean an amount
adequate, when taken together with any and all other amounts available, in the sole discretion of
the Commission, to enable the Commission to meet its obligations and responsibilities as they
come due, including without limitation the making of all deposits required to be made under the
ordinance or ordinances authorizing the issuance of any loans obtained or bonds issued by
Commission.
(e) Municipality Charges and Rates Covenant, Each of the Municipalities
hereby covenants to establish such charges and rates for water supplied by it to consumers as will
be sufficient at all times (1) to pay the cost of operation and maintenance of its Municipal System,
including those amounts necessary to pay the charges and rates established by the Commission
hereunder; (2) to provide an adequate depreciation fund for such Municipal System; (3) to pay the
principal of and interest on all of its revenue bonds payable from the revenues of its Municipal
System and to meet all other requirements of any ordinances authorizing its revenue bonds for
water or sewer purposes; and (4) to pay the charges and rates established by the Commission for
22
the sale of water by the Commission to the Municipalities.
For purposes of this subparagraph (e), a "sufficient" amount shall mean an amount
adequate, when taken together with any and all other amounts which have been set aside, in cash
or investments, in a separate account and legally designated, pledged and appropriated for the
purpose of making payments due under Paragraph 5 of this Contract, to enable the Municipality
to make all such payments as they come due.
(f) Additional Municipality Covenants. Each of the Municipalities further
covenants: (1) to operate and maintain its Municipal System in good repair and working order so
as at all times to be in a position to receive and distribute the water required to be purchased from
the Commission pursuant to this Contract; (2) to continue to possess, control and operate its
Municipal System and dispose of components of such System only to the extent that such
components are no longer useful in the operation of the Municipal System, and not to mortgage or
encumber such System(except for such pledge of revenues as may be required to issue its bonds
payable from the revenues of said System in accordance with applicable law and the provisions of
this Contract); (3)to carry insurance or other risk management protection on its Municipal System
of the kinds and in the amounts which are customarily carried by parties operating similar facilities;
(4) to use its best efforts to continue serving all current customers of its Municipal System, and to
cause its Municipal System to be expanded to serve all future water users in the Municipality, all
to the fullest extent allowable by law; (5) to use its best efforts to maintain in effect at all times a
Lake Michigan water allocation that will satisfy its Full Water Requirements; (b) to provide the
Commission with a report of all water taken from any source other than the Water Supply System
within 10 days after the end of any calendar month in which it takes such water; (7) to provide for
the segregation of all revenues from its Municipal System in a separate Municipality fund not to
23
be commingled with any other Municipality funds and to provide for the application of such
revenues for purposes of making the payments due under Paragraph 5 hereof; and (8) to make all
budgetary, emergency and other provisions and appropriations necessary to provide for and
authorize the prompt payment to the Commission of all amounts claimed by the Commission to
be due under this Contract.
(g) Character of Payment Obligations as Water Revenue Obligations. This
Contract shall not be construed to constitute an indebtedness of any of the Municipalities within
the meaning of any statutory or constitutional limitation. It is expressly understood and agreed
that all payments to be made hereunder by the Municipalities may be required to be made only
from revenues to be derived by each of them from the operation of their respective Municipal
Systems, and this Contract shall be a continuing, valid and binding obligation of each of the
Municipalities payable from such revenues throughout the term hereof. Without in any manner
limiting the foregoing provisions of this subparagraph (g), it is also expressly understood and
agreed that the aforesaid revenues from the operation of the said Municipal Systems shall remain
available for payments due or claimed to be due under this Contract without regard to any
designation of such revenues by the Municipalities from time to time as operating revenue,retained
earnings, reserves, surplus or otherwise. Nothing in this subparagraph (g) or this Contract shall,
however,prohibit any Municipality from using any other legally available funds for payments due
hereunder.
(h) Character of Payment Obligations as Operating Expenses. Inasmuch as
obtaining water is an essential item of expense of a waterworks system, each of the Municipalities
hereby represents and covenants that all payments required to be made by it pursuant to the
provisions of Paragraph 5 hereof shall constitute operating expenses of its Municipal System and
24
that such payments will constitute operating expenses as to any and all revenue bonds of that
Municipality which are supported in whole or in part by a pledge of the revenues of its Municipal
System, with the effect that such Municipality's obligation to make payments from its water
revenues under this Contract has priority over its obligation to make payments of the principal of
and interest on any such bonds which are or will be supported in whole or in part by a pledge of
that Municipality's Municipal System revenues. Consistent with this subparagraph(h), each of the
Municipalities hereby covenants and agrees that from and after the date of this Contract, any
ordinance or resolution to be passed by it authorizing the issuance of Municipality obligations to
be paid from the revenues of its Municipal System shall expressly provide that the revenues of the
Municipal System may be used to pay the principal of and interest on such obligations only to the
extent that those revenues exceed amounts required to pay the operating expenses of the
Municipality's Municipal System, including all payments to be made by it under this Contract
regardless of whether water is being delivered or is ever delivered to the Municipality hereunder.
Without in any manner limiting the foregoing provisions of this subparagraph (h), it is also
expressly understood and agreed that the obligation of each of the Municipalities under this
Contract shall be enforceable against and collectable from any monies from time to time available
in any of the various accounts and funds, including reserve and surplus accounts, maintained by
the respective Municipalities in connection with their Municipal Systems.
8. Service to Others. Except for this Contract, no contract for the sale of water by the
Commission to any customer shall be entered into unless authorized by a majority vote of the
Commissioners and unless such contract contains rates or charges to any customer that are at least
equivalent to the rates and charges provided by this Contract for the Municipalities. The
Commission hereby acknowledges that future customers, other than the Municipalities, will not
25
have incurred the same risks nor undertaken the same financial obligations, as the Municipalities,
and the Commission hereby agrees to take account of the risks and obligations undertaken by the
Municipalities, including the fact that certain amounts paid by the Municipalities, and which were
not to be repaid or were repaid only in part, when determining rates and charges to be included in
contracts for water service to such future customers. The addition of new members to the
Commission shall require the affirmative vote of the governing bodies of the Municipalities.
9. Force�eure. In case by reason of Force Majeure any party hereto shall be
rendered unable wholly or in part to carry out any of its obligations under this Contract, then if
such party shall give notice and full particulars of such Force Majeure in writing to the other parties
within a reasonable time after occurrence of the event or cause relied on,the obligation of the party
giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the
continuance of the inability then claimed, but for no longer period, and any such party shall
endeavor to remove or overcome such inability with all reasonable dispatch. The term "Force
Majeure" as employed herein shall mean acts of God, strikes, lockouts or other industrial
disturbances, acts of public enemy, orders of any kind of the Government of the United States, of
the State of Illinois, or of any civil or military authority, insurrections,riots,epidemics,landslides,
lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of
government and people, civil disturbances, explosions, breakage or accidents to machinery,
pipelines, canals, or tunnels, partial or entire failure of water supply, and inability on the part of
the Commission to deliver water hereunder or of the Municipalities to receive water hereunder, on
account of any other causes not reasonably within the control of the party claiming such inability.
It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the
discretion of the party having the difficulty and that the above requirement that any Force Majeure
26
shall be remedied with all reasonable dispatch shall not require the settlement of strikes and
lockouts by acceding to the demands of the opposing party or parties when such settlement is
unfavorable to it in the judgment of the party having the difficulty. Notwithstanding the foregoing,
Force Majeure shall not relieve any of the Municipalities of their respective obligations to make,
when due, all payments as required under this Contract whether or not such Force Majeure results
in a delay, interruption or termination of water delivery to such Municipality.
10. Modification. Except as to paragraph 2, 3, and 5 of this Agreement which may be
amended by unanimous vote of the Commissioners, no other amendment shall be effective unless
passed by each of the Member's elected bodies.Such modification may be requested by any party,
in which event, unless the parties agree to some other procedure, a joint meeting of the
Commissioners shall be held not more than ninety (90) days after the giving of such notice, at
which joint meeting the requested changes or modifications shall be considered and discussed. No
such change or modification shall be made which will affect the rights and interests of the holders
of any loans obtained or bonds issued by Commission except in accordance with the provisions of
the ordinance or ordinances authorizing the issuance of any loans obtained or bonds issued by
Commission.
11. Non-Assignability. No party shall assign, sublet, or transfer this Contract or any
rights or interests herein without the written consent of the Commission and all of the Munici-
palities,except that this provision shall not be deemed to preclude the Commission from including
in any bond covenants or any ordinance or ordinances authorizing the issuance of any loans
obtained or bonds issued by Commission any provisions of whatever nature giving bondholders
or any trustee appointed for their benefit rights in or under this Contract, including, without
limitation, the right to enforce the provisions of this Contract.
27
It is hereby expressly agreed that in the event of the appointment of a trustee or trustees for
the benefit of the holders of any loans obtained or bonds issued by Commission, such trustee or
trustees may take whatever action at law or in equity it or they shall deem necessary or desirable
to collect any payments or other amounts then due or thereafter to become due hereunder or to
enforce performance and observance of any obligation,agreement or covenant of the parties hereto
or of any of them, including,without limitation,the securing of mandamus or specific performance
of the provisions of this Contract.
12. Regulatory Bodies. This Contract shall be subject to all valid rules,regulations, and
laws applicable hereto passed or promulgated by the United States of America, the State of Illinois,
or any governmental body or agency having lawful jurisdiction, or any authorized representative
or agency of any of them;provided, however, that this Paragraph shall not be construed as waiving
the right of any party to challenge such jurisdiction or the validity of any such rule, regulation, or
law on any basis, including the impairment of this Contract.
13. Notices. Except in cases of emergency, all notices or communications provided for
herein shall be in writing and shall be delivered to the Municipalities or the Commission either in
person or by United States mail, via registered mail, return receipt requested, postage prepaid,
addressed to the Municipalities as follows:
Village Manager
Village of Arlington Heights
33 South Arlington Heights Road
Arlington Heights, Illinois 60005
Village Manager
Village of Buffalo Grove
50 Raupp Boulevard
Buffalo Grove, Illinois 60090
Village Manager
Village of Palatine
28
200 East Wood Street
Palatine, Illinois 60067
Village Manager
Village of Wheeling
255 West Dundee Road
Wheeling, Illinois 60090
or addressed to the Commission as follows:
Executive Director
Northwest Water Commission
1525 North Wolf Road
Des Plaines, IL 60016
until and unless other addresses are specified by notice given in accordance herewith. Notices and
communications shall be deemed to be given or delivered on the date of delivery, if in person, or
two days (excluding Saturdays,Sundays and holidays) after deposit in the mail,if by United States
mail.Notice which is reasonable in view of the circumstances shall be given in cases of emergency.
14. Severability; Conflicts. Should any part, term, or provision of this Contract be
determined by a court of competent jurisdiction to be illegal or in conflict with any law,the validity
of the remaining portions or provisions shall not be affected thereby.
It is expressly understood and agreed that in the event that there should at any time be any
conflict or possibility of conflict between the provisions of this Contract and the provisions of the
ordinance or ordinances authorizing the issuance of any loans obtained or bonds issued by
Commission regarding the obligations of the Commission and the Municipalities, the provisions
of the ordinance or ordinances authorizing the issuance of any loans obtained or bonds issued by
Commission shall prevail.
15. Effective Date and Term. This Contract shall become effective at such time as it
has been duly executed by the Commission and all of the Municipalities and shall continue in force
and effect for a period of forty (40) years from the effective date of this Contract. The
29
Municipalities and the Commission agree to begin negotiation of a succeeding Water Supply
Contract not later than five (5)years prior to the termination of this Contract.
16. Entire Agreement. From and after the effective date of this Contract, this Contract
shall be deemed to and it shall supersede the following Agreements:
Northwest Water Commission Water
Supply Contract for the Village of
Arlington Heights, dated April 6, 1981
Northwest Water Commission Water
Supply Contract for the Village of Buffalo
Grove, dated April 6, 1981
Northwest Water Commission Water
Supply Contract for the Village of Palatine,
dated April 6, 1981
Northwest Water Commission Water
Supply Contract for the Village of
Wheeling, dated April 6, 1981
First Amendment to
Water Supply Contract for
the Village of Arlington Heights,
dated March 15, 1982
First Amendment to
Water Supply Contract
for the Village of Buffalo Grove,
dated March 15, 1982
First Amendment to Water Supply
Contract for the Village of Palatine,
dated March 8, 1982
First Amendment to Water Supply
Contract for the Village of Wheeling,
dated March 15, 1982
Intergovernmental Agreement Providing
for Proportionate Transfers of Funds
Between the Northwest Water
Commission and its Member
30
Municipalities dated March 15, 1982
First Amended Water Supply Contract
Between the Northwest Water
Commission
and the Village of Arlington Heights, the
Village of Buffalo Grove, the Village of
Palatine, the Village of Wheeling
dated April 4, 1983
First Amendment to the First Amended
Water Supply Contract dated September
5, 1990
Second Amendment to the First Amended
Water Supply Contract dated September
20, 1993
and said Agreements shall thereupon become null and void and of no further force or effect, and
this Contract shall thereupon become the entire agreement between the Commission and the
Municipalities with regard to the matters addressed herein.
IN WITNESS WHEREOF, the parties hereto acting under authority of their respective
governing bodies have caused this Contract to be duly executed in several counterparts, each of
which shall constitute an original all as of the day and year first written above.
ATTEST: NORTHWEST WATER COMMISSION
By
Chairman
VILLAGE OF ARLINGTON HEIGHTS
By
Village President
31
which shall constitute an original all as of the day and year first written above.
ATTEST: NORTHWEST WATER COMMISSION
By �.
Chalmian
VILLAGE OF ARLINGTON HEIGHTS
I
By
Village President
VILLAGE OF BUFFALO GROVE
By
Village President
VILLAGE OF PALATINE
By
Mayor
VILLAGE O LING
J illage President
�? �Q 0 Aq •�.�rrt,
32
Municipalities dated March 15, 1982
First Amended Water Supply Contract
Between the Northwest Water
Commission
and the Village of Arlington Heights, the
Village of Buffalo Grove,the Village of
Palatine,the Village of Wheeling
dated April 4, 1983
First Amendment to the First Amended
Water Supply Contract dated September
5, 1990
Second Amendment to the First Amended
Water Supply Contract dated September
20, 1993
and said Agreements shall thereupon become null and void and of no further force or effect, and
this Contract shall thereupon become the entire agreement between the Commission and the
Municipalities with regard to the matters addressed herein.
IN WITNESS WHEREOF, the parties hereto acting under authority of their respective
governing bodies have caused this Contract to be duly executed in several counterparts, each of
which shall constitute an original all as of the day and year first written above.
ATTEST: NORTHWEST WATER COMMISSION
By
Chairman
VILLAGE OF ARLINGTON HEIGHTS
B
y
Vi age President
(( VILLAGE OF BUFFALO GROVE
By
31
i
Village President
VILLAGE O TINE
By
Mayor
VII,LAGE OF WHEELING
By
Village President
32
VILLAGE OF BUFFALO GROVE
By
. Village President
VILLAGE OF PALATINE
By
Mayor
VILLAGE OF WHEELING
By
Village President
32
Index of Defined Terms
Term Page Paragraph
1983 Agreement.......................................2
AWWA....................................................8 3 (a)
Allocation ................................................4 1 (a)
Annual Charge.........................................12 5 (a)
Arlington Heights ....................................1
Buffalo Grove..........................................1
Commission.............................................1
Commission Expenses.............................12 5 (a)
Commission Receipts ..............................12 5 (a)
Contract....................................................1
Evanston Contract....................................2
Force Majeure..........................................26 9
Full Water Requirements.........................4 1 (a)
Guarantee Payment..................................16 5 (b)
Guarantee Revenue Need ........................16 5 (b)
Guarantee Share.......................................16 5 (b)
Municipality(ies)......................................1
Municipality's Share................................12 5 (a)
Municipal Systems...................................2
Net Annual Cost ......................................12 5 (a)
Palatine ....................................................1
Points of Delivery....................................6 2(b)
Service Year.............................................12 5 (a)
Wheeling..................................................1
33
EXHIBIT A
NORTHWEST WATER COMMISSION
WATER SUPPLY SYSTEM
AND MUNICIPALITY MUNICIPAL SYSTEMS
[ON FILE WITH THE NORTHWEST WATER COMMISSION]
A-1
EXHIBIT B
LAKE MICHIGAN ALLOCATIONS*
(In million gallons per day)
Arlington Palatine Wheeling Buffalo
Heights Grove
1984 8.316 6.088 2.497 2.456
1985 8.350 6.193 2.690 2.594
1986 8.384 6.290 2.774 2.717
1987 8.418 6.437 2.858 2.840
1988 8.452 6.585 2.942 2.964
1989 8.486 6.731 3.026 3.087
1990 8.520 6.879 3.110 3.210
2000 8.850 7.706 3.650 4.487
2010 9.180 7.859 3.716 4.507
2020 9.500 8.505 4.005 4.920
* As amended from time to time by IDNR
B-1