2022-02-22 - Ordinance 2022-032 - AUTHORIZING EXECUTION OF A TERMINATION AGREEMENT TO THE WATER ANALYTICS PILOT PROGRAMS SERVICES AGREEMENT ORDINANCE NO. 2022-032
AN ORDINANCE AUTHORIZING EXECUTION OF A TERMINATION AGRE,EM ENT TO THE WATER
ANALYTICS PILOT PROGRAMS SERVICES AGREEMENT
WHEREAS, the Village of Buffalo is a home rule unit pursuant to the Illinois Constitution of 1970;
and
WHEREAS, the Village entered in an Agreement with Exelorate Enterprises LLC., d/b/a "Aquify"
for the continuous monitoring and analysis of the Village's water distribution; system; and
WHEREAS, Aquify has provided a termination notice to the Village, and seeks to enter into a
termination agreement to set forth terms and conditions.
NOW THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE
VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS, as follows:
SECTION 1.The foregoing recitals are hereby adopted and incorporated and made a part of this Ordinance
as if fully set forth herein.
SECTION 2. The Village Manager is authorized to execute a termination amendment and execute a bill of
sale with Exelorate Enterprises LLC, pending review and approval by the WIlage Attorney,
SECTION 3. If any section, paragraph, clause or provision of this Ordinance shall be held invalid, the
invalidity thereof shall not affect any other provision of this Ordinance.
SECTION 4.This Ordinance shall be in full force and effect from and after its passage and approval and not
be codified.
AYES: 6—Stein, Ottenheimier..,Weidenfeld,Johnson,Smith Pike
NAYES: 0—None
ABSENT: 0—None
PASSED: Eebruary 2.2 2022
APPROVED-. Februa 22 2022
APPROVED:
Beverly Sussman i lage President
ATTEST:
Janet Nk.-Sff'abian,Village Clerk
TERMINATION AGREEM-1:1lx F
ThisTFIRMINATION AG REF"MENT (this "Agreement") is made and entered into as, of
February 23, 202,2, by and among f,.'xelorate Enterprises, LLC d/b/a Aquify (the"Aquify") and the
Village of Buffalo Grove (the "Village"'),
WHERI AS, Aquif*y and the Village are parties to that certain Water Analytics Services
Agreement dated June 24, 2019 (as amended to date and frorn time to time, the "Services
Agreement"),-
WHERf�'AS f',, due to recent organizational changes, Aqully will be ceasing operations as o
Febr`UaD, 28, 20212 and has delivered notice of' terynination of the Services Agreement and all
related services and software licenses effective February 28. 2022;
WHY,"RI"AS, Aquify and the Village desire to settle and release any claims that may be
existing under the Services Agreement and execute this Agreement.
NOW, '"I'l IEREFORE. in consideration of the foregoing and the consideration described
below, the mutual covenants and agreements set forth herein, and for other good arid valuable
consideration, the receipt arid sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as fiollows:
1. C,apitalized terms used but not defined herein shall have the respective meanings
set forth in the Services Agreement.
2. The Parties hereby agree that the Services Agreement is terminated effective
February 28, 2020 (the 'T'l"I,�ctive Date"), and this Agreement represents a full and complete
settlement between the Parties hereto, The Parties have no obligation to make any payment or do
any other act relating to the Agreement other than as set forth herein,
(a) AqUify will generally support the Village in its efforts to sell-perform or
transition the services provided by Aquifv to a third-party, which may include the transfer of data
from the Sensors, attending meetings with third parties designated by the Village, or other support
activities. These support activities shall be as agreed by AqUify and may be modified, amended or
terminated from time to time in Aquify's sole discretion. Any Support services to be provided by
Aquify shall be as is, where is, with no warranty of any kind, express or implied.
(b) Aquify pay the SUrn, of $150,000 as a termination fee under the Service
Agreement, and shall transfer ownership of the sixteen sensor assemblies, described as (i) four (4)
Trimble Ru-is Remote Telemetry Units, Flow'Yronic Torpee Mag Insertion Flow Meters, and
Trimble PT-DSU Pressure Transducers, (ii) two (2) Trimble Ru-32ima Remote Telemetry Units,
l"rimble IFNI32 Insertion Flow Meters. and Trimble PT-LDS Pressure Transducers, and (iii) ten
(10) Martinek WI-M Connection Boxes and Martinek WLM Sensors (collectively, the '*Sensors")
deployed in the Village"s water system pursuant to a bill of sale in the corm attached hereto as
Lxhibit A (the "Bill of Sale") on the Effective Date.
Doc Name: Buffalo Grove Termination Agreement
Doc4: 5311015 Version: 2
(c) The Village on behalf of itself: any person or entity claiming through it,
including any and all beneficiaries to the aforementioned Services Agreement, their present and
former agents, principals, executors. predecessors, successors and assigns (hereinafter "Village
Releasors") Voluntarily and knowingly. forever, bully, finally and completely, waive, release,
relinquish, remise, acquit and discharge., effective as of the l"Bective Date, Aquify including its
parent and affiliated entities, their directors, officers, members, managers, employees, partners,
agents and representatives ofany of the foregoing, and the predecessors, successors and assigns of
any of the foregoing (the "Aquify Released Parties"), and each of them, from any and all claims,
counterclaims, cross-claims, charges, demands, costs, expenses, sums of money, actions, causes
of action, suits, obligations, debts., liens, contracts, agreements, losses, damages,judgmerits and
liabilities of any kind or nature whatsoever, whether known or unknown, absolute or contingent,
accrued or unaccrLied, due or to become due, liquidated or unliquidated, whether in contract, tort,
or otherwise, arising from statute or common law (collectively, "Liabilities"), which the Village
ever had or claimed to have had, now has or claims to have. or hereafter can. shall or may have or
claim to have for, upon, or by reason of', arising out of or in connection with or relating in any way
to the Services Agreement. The parties to this Agreement intend for the release provided in this
Section 4 a to be a general release construed in the broadest possible manner and to the maximum
extent permitted by law.
(d) Aquify on behalf of itself', any person or entity claiming through it,
including any and all beneficiaries to the aforementioned Services Agreement, their present and
f'ormer agents, principals, executors, predecessors, successors and assigns (hereinafter "Aquify
Releasors") voluntarily and knowingly, forever, fully, finally and completely, waive, release,
relinquish, remise, acquit and discharge, effective as of the Fffective Date, the Village including
its affiliated entities,their directors, officers.members, managers, employees, partners, agents and
representatives of any of the foregoing, and the predecessors, successors and assigns of any of the
foregoing (the "Village Released Parties"). and each of them, from any and all Liabilities which
Aquify ever had or claimed to have had, now has or claims to have. or hereafter can, shall or may
have or claim to have For, upon, or by reason of, arising out of or in connection with or relating in
any way to the Services Agreement. The parties to this Agreement intend for the release provided
in this Section 4(b) to be a general release construed in the broadest possible manner and to the
maximum extent permitted by law,
I The Parties hereto, in addition to the Village Releasers and Aquify Releasors (the
"Releasors") further understand and agree that this Agreement and the terms of any, settlement and
the amount thereof are to be kept strictly confidential and are not to be disclosed directly or
indirectly to any person, organization, entity, or source including any third parties, credit bureaus.,
customers, the media, including any newspapers, magazines, radio or television, the internet., 01'
websites, These confidentiality conditions will not be applicable oi- enforceable to the extent that
l) disclosure of this Agreement is required by court, Freedom olInformation Act,or public service
COTIIIIIission order or subpoena or is required to be admitted into evidence or viewed by any
tribunal..judge, or arbitrator,to the extent necessary to effectuate its purpose, including the purpose
of avoiding the necessity of The Parties herein from participating in any hearing or trial or otherwise
as required by law-, or 2) the [Weasors are communicating information to their tax, financial and
legal advisors, solely for tax. financial WId legal Purposes, Failure to comply in full with this
confidentiality provision by the Releasors shall be a material breach of contract.
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4. Flach of Aquify and the Village hereby represents and warrants to each other that
(i) it has all requisite power and authority to execute and deliver this Agreement. which does not
violate any agreement or restrictions which is it subject to, (ii) it is the sole legal and equitable
owner and holder of all Liabilities which are purported to be released by it pursuant to Sectiqq 2,
arid (H) it has not assigned or transferred any portion of'anv such Liabilities to any other person or
entity, and no person or other entity has any lien, claim, right, title or interest in or to any such
Liabilities,
5. The Releasors arid the Released Parties further declare and represent that no
prornise or agreement not herein expressed has been made, and that this Agreement contains the
entire agreement among the parties hereto, and that the terins hereof are contractual and not a mere
recital. The parties shall cooperate full and execute any supplementary documents and take such
further actions as the requesting party may reasonably request or as otherwise may be necessary
to evidence and carry out more effectively the transactions contemplated by this Agreement.
6. This Agreement shall be governed by, and construed in accordance with, the
substantive laws of the State of Illinois, including matters of formation, interpretation,
construction, validity, perforrilance and enforcement. it' any provision (or part thereof) of this
Agreement is determined to, be void, invalid or unenforceable by a court of competent jurisdiction,
Such finding shall not otherwise affect the validity or erif'orceability of any other provision of this
Agreement, and such prohibition shall not invalidate the remainder of such provision or the other
provisions of this Agreement.
7. This Agreement may be executed in counterparts and may be delivered by
electronic mail, PDF' or other method and any counterpart delivered shall be deemed to be valid
and effective ]"or all purposes. This Agreement may not be assigned by any party, in whole or in
part, directly or indirectly (ilICILiding by operation of law), without the prior Nvritten consent of
each c-)ther party,
8, fhe parties hereto jointly participated in the negotiation and drafting of this
Agreement, and no presumption or other rule of construction against the party preparing this
Agreement will, be applied against any party hereto. The Releasors represent that prior to signing
this, Agreement, they have consulted an attorney arid have read and understand the terms and
conditions set I"orth herein, this Agreement and the terms, hereof are fully understood and
voluntarily accepted by the Releasors. As used in this Agreement, the term "including" shall be
deemed to mean "including without limitation." Any (ailure on the part of any party hereto to
comply with any of its obligations, agreernents or conditions hereunder may be Nvaived by any
other party to which such compliance is owed. No waiver of any provision of this Agreement or
of any breach of this Agreement, whether or not recurring, shall be deemed or shall constitute a
waiver of the subsequent ent"brcement of any provision or breach of phis Agreement, a waiver of
any other provision. whether or not similar, or a continuing waiver,
IrSigilature Page Follows]
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IN WI I NI:SS WHEREOF. each party has caused this Termination Agreement to be duly
executed and delivered by its authorised representative as of the date first written above.
AQt
6<::ref\-/ 7
Name: S4�+VN ELERUfi-
Title: CeVloL v i Pn eSrbCP-Ir
VII.I.A(iI :
Name: 44^4 C. eaQGE
Title: tf? 7( As.tActx
Doc Name: Buffalo Grove Termination Agreement
Doc#: 5311015 Version: 2
EAhibit A
THIS BILL OF SALE (the -Bill of Sale") is entered into as of Lebruary 23, 2022 by
F"xeiorate Enterprises, LLC d/b/a Aquify ("Assignor") and the Village of Buffalo Grove
("Assignee").
WHEW,"AS,the parties hereto have entered into that certain Terniination.Agreement dated
as of Febrt!M 022 (the "Agrecrnerit") pursuant to which the Assignor is transferring, and the
Assignee is acquiring Assignor's right, title and interest in and to the Sensors as defined in the
Agreement; and
WI IEREAS, to effectuate the transf'er(.)fthe Sensors, Assignor and Assignee are executing
and delivering this Bill. of Sale.
NOW,, TI IFIREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration,the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
I . Assignment, l"Iffective as of the date hereof and Subject to the terms and conditions
of this Bill of Sale and the Agreement, Assignor hereby sells, assigns, transfers and delivers all of
its rights, title and interest in and to the Sensors in accordance with the terms of the Agreement.
2. Representation and Warranty. Assignor hereby represents and warrants (a) that it
has good title to the Sensors, which are free Lind clear from all liens and encurnbrances, and it is
the true and lawful owner ofthe Sensors, and (b)that all taxes and other amounts to governmental
aLithoritics, which if unpaid could give rise to a lien against the Sensors. have been paid.
3, Assumption, FIffective as of the date hereof and subject to Paragraph 2 hereof and
the terms and conditions of this Bill of Sale and the Agreement, Assignee accepts the foregoing
sale, assignment, transfer and delivery of the Sensors on an "AS IS, WIJFRE IS" AND "WITH
ALL FAULTS" CONDITION ANI) BASIS, and acknowledges that the Sensors have been
transferred hereunder without any representation or warranty by Assignor whatsoever and, to the
extent permitted, by applicable law, Ass,igrice expressly disclaims any representation or warranty
implied by law,
3. Miscellaneous. This Bill of Sale shall be governed by and construed in accordance
with the laws of Illinois, and may only be amended with the written consent of all of the parties.
'Phis his Bill of Sale together with the Agreement constitutes the entire agreement between the Parties
concerning the subject matter hereof' and supersedes an), prior understandings, agreements or
representations by or between the Parties, written or oral, to the extent they related in any way to
the subject matter hereof. Every provision of this Bill ofSaIc is intended to be severable. This Bill
of Sale may be executed in one or more counterparts, including via electronic mail (in PDF forniat)
each ofw,hich shall be deerned to be an original copy of this Bill of Sale, and when taken together
shall be deemed to constitute one agreement.
IN "VITNESS WIll. REOF, the Assignor and Assignee have exectited this Bill ofSalc as
of the date first set forth above.
ASSIGNOR: Exelorate Enterprises. LE(' ASSIGNEE: Village of-Buffalo Grove
Name: -
SoN `i ELe-3vR Name: 444,f c Stvw
!itle: S tart Uict rat:3,604 I itle: l4ZL (1 'd' -
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