2014-25 - Signed ContractNWC / City approved version October 2014
■ • =I I - "NOTW
NVVC/City approved version October 2O14
TABLE OF CONTENTS
SECTION1 BACKGROUND ..................................................................................... .............
1
SECTION2 DEFINITIONS ............................................................................... .................
.... 2
SECTION 3 SUPPLEMENTAL WATER SUPPLY ............................................ —.............
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A.
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o
B.
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O
C.
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D.
ADDITIONAL SUBSEQUENT CUSTOMER -------------------------7
E.
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—... ...
F.
----------------'7
G.
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SECTION 4 QUALITY; DELIVERY; STORAGE; DISTRIBUTION; CONSERVATION.......
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A.
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B.
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C.
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[}.............................................
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—.... _0
E.
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8
F.
CONNECTION To TRANSMISSION MAINS...... ................ —........... ............................
... S
G......
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...... S
SECTION MEASURING EQUIPMENT .............. ............. ......... —....... .............. ................
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A......................................
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B.
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1O
C.
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Q.
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E.
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F.
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G.
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H.
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iRIGHT
OF INSPECTION ................................. ............... ................. ......................
.... 13
SECTION 6 UNIT OFMEASUREMENT ..................................................... .......... ...............
14
SECTION 7 RATES AND TERMS OFPAYMENT ............................ —...... —....... ----
... 14
A.
RATE ........................................................... ---.................................................
.14
B.
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NWC / City approved version October 2014
C.
RESERVED..................................................................................................................14
D.
RESERVED..................................................................................................................14
E.
BILLS AND DUE DATE...................................................................................................14
F.
DISPUTED PAYMENTS..................................................................................................14
G.
OVERDUE PAYMENTS..................................................................................................15
H.
BEGINNING OF OBLIGATION TO PAY..............................................................................17
I.
RATE AGREED TO BE REASONABLE..............................................................................17
J.
COMMISSION CHARGES AND RATES COVENANT............................................................17
K.
CITY CHARGES AND RATES COVENANT........................................................................18
L.
CHARACTER OF PAYMENT OBLIGATIONS AS WATER REVENUE OBLIGATIONS..................18
M.
CHARACTER OF PAYMENT OBLIGATIONS AS OPERATING EXPENSES...............................19
SECTION 8 SPECIAL CONDITIONS AND COVENANTS....................................................19
A.
NO LIABILITY FOR DELAY.............................................................................................20
B.
TITLE TO POTABLE WATER...........................................................................................20
C.
OTHER SUPPLY; EMERGENCY SUPPLY.........................................................................20
D.
COVENANTS TO BE SET OUT IN BOND ORDINANCES......................................................20
E.
OTHER FINANCIAL OBLIGATIONS OF CITY WATERWORKS SYSTEM..................................20
F.
MAINTENANCE OF CITY'S ExiSTENCE............................................................................21
G.
CITY JURISDICTION......................................................................................................21
H.
MAINTENANCE AND OPERATION OF CITY WATERWORKS SYSTEM...................................21
I.
CITY REGULATIONS EQUIVALENT TO MEMBER MUNICIPALITY REGULATIONS ...................22
J.
ACCOUNTING AND AUDIT.............................................................................................22
K.
MAINTAIN OWNERSHIP OF CITY WATERWORKS SYSTEM................................................22
L.
NO SALE OF CITY WATERWORKS SYSTEM....................................................................23
M.
RELEASE AND INDEMNIFICATION...................................................................................23
N.
ASSIGNMENT OF LITIGATION.........................................................................................24
O.
RATE OF WITHDRAWAL................................................................................................24
P.
STATUS AS CUSTOMER................................................................................................24
SECTION 9 SCHEDULE FOR COMPLETION OF VARIOUS FACILITIES ...........................25
A.
PLANS AND SPECIFICATIONS FOR CITY SYSTEM CONNECTION FACILITIES AND
COMMISSION CONNECTION FACILITIES.........................................................................25
B.
IEPA AND OTHER APPROVALS FOR CITY SYSTEM CONNECTION FACILITIES AND
COMMISSION CONNECTION FACILITIES.........................................................................25
C.
COMMENCEMENT OF CONSTRUCTION OF CITY SYSTEM CONNECTION FACILITIES AND
COMMISSION CONNECTION FACILITIES.........................................................................25
D.
TRANSFER OF PROPERTY RIGHTS/PAYMENT COVENANT/OVERSIZING ............................25
NVVC/City approved version October 2O14
SECTION10 ASSIGNABILITY ..........................................................................................
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A. --------------------------------.
26
B. ..................................................... ... ........
.......... 20
SECTION 11 FORCE MAJEURE............................................................... .................
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SECTION 12 COMMISSION DEFAULTS, CITY TERMINATION .................. .....................
27
SECTION 13 CITY RIGHTS AND OBLIGATIONS ..............................................................
28
SECTION 14 TAX COVENANTS -----------------------------.28
SECTION 15 COOPERATION UNISSUANCE OFOBLIGATIONS ........ -..............
-.... -39
SECTION 16 REGULATORY BODIES .......................................... ---- ...........
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SECTION 17 OTHER WATER SUPPLIERS ................................. ............. .......................
3O
SECTION 18 EFFECTIVE DATE: TERM ........................................ ............................
.... 3O
A. -----------------------------------3u
B. TERM ......................................................................................................................
-3O
SECTION 19 TERMINATION BY COMMISSION .................................... -........................
31
SECTION20 GENERAL .................................................................... .............. ...
-... ...... 3u
A. ................ _______......... ................. _..................
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B. --------------------------------------..33
C................................................ ... --- ...................
-.... -33
D. ..................... -___............. ......... .....................................
-33
E. AMENDMENTS, ............ ... .................... ............................ ..........................
-..... 34
F............................................................... ---- ... —.................
... 34
G.CAPTIONS .......................................................... -....................... ....................
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H. ............................................................. ................... ..............
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i................................................ .................... -...........................
34
J......................................... -...... ............... .................
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K............................................... ........ ..........................................
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L. ............................................ .......... -..................
.... ...... .... 35
M.............................................. ---- ... ............. ..........
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N, ------------------------------------35
(].REIMBURSEMENT ............ _...................................
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NVVC / City approved version October 2014
BY AND BETWEEN
THE •' WATER COMMISSION
AND THE CITY OF DES PLAINES
THIS SUPPLEMENTAL WATER PURCHASE AND SALE CONTRACT is made and
entered into as of September 26, 2014, by and between the NORTHWEST WATER
COMMISSION, an Illinois water commission and public corporation organized and existing
under the Illinois Constitution of 1970 and Division 135 of Article 11 of the Illinois Municipal
Code, 65 ILCS 5/11-135-1 et seq. (2010), and the CITY OF DES PLAINES, a municipal
corporation organized and existing under the Illinois Constitution of 1970 and the Illinois
Municipal Code, 65 ILCS 5/1-1-1 et seq. (2010) for and in consideration of the mutual
covenants and agreements herein contained.
SECTION I BACKGROUND
A. The Commission owns and operates the Commission Waterworks System for
the receipt of Potable Water and for the delivery of Potable Water to its Member Municipalities
and other Customers.'
B. The Commission has issued and sold, and may in the future issue and sell,
Bonds from time to time during the term of this Contract in sufficient amounts for the payment of
the costs of acquiring, designing, constructing, and maintaining its Waterworks System.
C. The City owns and operates the City Waterworks System for the delivery of
Potable Water to its customers.
D. The City has received an allocation from the State of Illinois Department of
Natural Resources to divert water from Lake Michigan for the City Waterworks System.
E. The City desires to purchase Potable Water from the Commission and the
Commission desires to sell Potable Water to the City, solely for the purposes set forth in and in
1 All capitalized words and phrases throughout this Contract shall have the meanings set forth in Section 2 hereof,
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NVVC/City approved version October 2014
gtho1 accordance with the provisions of this Contract. The Commission and the City
acknowledge that this isnot onexclusive contract for the sale and purchase of water to the City.
Further, the City acknowledges that itienot and shall not beentitled toreceive more than 75f6
ofits water use from the Commission.
F. Pursuant to the Illinois Municipal Code. 85 |LCS 5/1-1-1 et seq. (2012). the
Intergovernmental Cooperation Act, 5 1LCS220/1 etaeq. (2012). and Article V||. Sections 3and
10 of the Illinois Constitution of 1970, the Commission and the City are authorized to enter into
this Contract.
G. The City recognizes that the Commission may use this Contract as the baa|a, in
part, for obtaining loans from time to time to be evidenced by the issuance of its Bonds; and for
payment of the principal of and the prannium, if any, and interest on such Bonds; and as the
means for the payment of its maintenance and operating expenses; and for such purposes as
may be authorized byapplicable statutes or required in any Bond Ordinance adopted by the
Commission authorizing issuance mfBonds.
SECTION 2 DEFINITIONS
The following words and phrases shall have the following meanings when used in this
Contract.
Ordinances" means all ofthe respective bond ordinances and resolutions under
vvh|oh the Parties have or will authorize the issuance of, or issue, Bonds.
"Bonds" means Commission Revenue Bonds and City Bonds.
^Citv'means the City ofDes Plaines.
Bonds" means the debt obligations, whether in the form of bonde, nohao, or other
evidences of indebtedness, to be issued by the City in an amount sufficient to pay the expected
costs to complete all of the Citv'e obligations under this Cmntract, including, without |innitat|on,
costs of construction and professional aen/|oao.
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NWC / City approved version October 2014
"City System Connection Facilities" means those portions of the City Waterworks
System to connect the existing City Waterworks System to the Commission Waterworks
System, which facilities are depicted in the preliminary plans to be approved by both Parties and
attached as Exhibit B to this Contract. The City System Connection Facilities include, among
other items, the valves [and pressure adjusting station] described in this Contract and pipeline
and equipment appurtenant thereto.
"City Waterworks System" means all of the City's facilities, including land; easements;
rights -of -way over lands and waters; pumping facilities, wells, treatment facilities, storage
facilities, metering stations, and other facilities; mains; and pipelines acquired and used for the
purposes of transmitting and providing Potable Water to the City's customers, as depicted in
Exhibit A.
"Commission" means the Northwest Water Commission.
"Commission Connection Facilities" means the portions of the Commission
Waterworks System to be constructed pursuant to this Contract by the City after approval by the
Commission to connect the City Waterworks System to the existing Commission Waterworks
System, which facilities are depicted in the preliminary plans to be approved by both Parties
and attached as Exhibit B to this Contract. The Commission Connection Facilities include,
among other items, the metering station and Supervisory Control and Data Acquisition
("SCADA") facilities described in Subsection 5A of this Contract and pipelines and equipment
appurtenant thereto.
"Commission Revenue Bonds" means all of the Commission's debt obligations,
whether in the form of bonds, notes, or other evidences of indebtedness, in whatever original
principal amount, together with any such revenue obligations authorized by law to be issued by
the Commission from time to time and refunding revenue obligations issued to refund other
such obligations.
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NVVC/City approved version October 2O14
means all of the Commission's facilities, including
land; easements; i over lands and waters; pumping faoUitiee, treatment facj|itieu,
storage faciUUem, metering stations, and other facilities; mains; and pipelines acquired and used
for the purposes of transmitting Potable Water to the Commission's Member Municipalities and
Customers. The Cmrnmn|omion Waterworks System includes the metering station and all meters
and other equipment located therein constructed as part of the Commission Connection
Facilities.
"Connection Area" nnemno the area at the east side of the Cornnn|oa|on'o pump station
on and adjacent to the Commission's property as depicted in Exhibit B, or as otherwise may be
agreed upon bythe Parties.
Facilities" means the Commission Connection Facilities and the C|b/
System Connection Facilities.
"Contract" means this Contract.
means any person orentity tmwhom the Commission sells Potable Water.
"Pa
m/' means any 24'hourcontinuous period commencing at 12:80 a.m. (midnight) local
time.
"Defively Date" means the date that the Cornnn|ee|on first delivers Potable Water tothe
City.
.Effective Date" means the date established inSection 18ofthis Contract.
"Fiscal nmeanathe fiscal year ofthe Commission.
"Force ''means motG of God; strikes, |ookouto, or other industrial disturbances;
acts of a public enemy; orders of any kind of the Government of the United States, of the State
of UUno|a, or of any civil or military authority; insurrections; riots; acts of 1annheno; epidemics;
pandemics; landslides; lightning; earthquakes; fires; hurricanes; storms; floods; vveohmuto;
droughts; arrests; restraints of government and ; civil disturbances; explosions,
breakage, or accidents to nnmohinary, pioaineo, p|ants, oenals, or tunnels; and inability on the
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NWC / City approved version October 2014
part of the Commission to deliver Potable Water hereunder, or of the City to receive Potable
Water hereunder, on account of any other causes not reasonably within the control or ability to
cure of the Party claiming such inability.
"Maximum Water Supply Amount" means the maximum amount of Potable Water that
the Commission shall be obligated to deliver to the City, and that the City shall be authorized to
purchase from the Commission, pursuant to this Contract, which amount shall not exceed five
(5) million gallons per Day ("MGD"), unless otherwise agreed in writing from time to time by the
Commission and the City.
"Member Municipalities" means the Villages of Arlington Heights, Buffalo Grove,
Palatine, and Wheeling.
"Party" or "Parties" means either the City, the Commission, or both, as appropriate.
"Point of Dellvery" means the first valve immediately downstream from the metering
station at which the Potable Water delivered to the City pursuant to this Contract leaves the
Commission Waterworks System and enters the City Waterworks System.
"Potable Water" means treated, filtered water drawn from Lake Michigan provided to
the Commission.
"Rate" means the customary and applicable rate for delivery of Potable Water
established by the Commission for a particular fiscal year.
"Trustee" means a trustee provided in a Bond Ordinance.
"Water Allocation" means the sum of the City's allocations and allowable excesses
from time to time of Potable Water for the City Waterworks System pursuant to the Level of
Lake Michigan Act, 615 ILCS 50/1 et seq. (2010), as amended from time to time; the Illinois
Department of Natural Resources Rules and Regulations for the Allocation of Water from Lake
Michigan, 92 III. Admin. Code Part 730, as amended from time to time; applicable Illinois
Department of Natural Resources decisions, as amended from time to time; and such other
amounts of Potable Water as the City may lawfully take for the City Waterworks System.
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NVVC/City approved version October 2014
"Well Watee' nomane either tremted, filtered water or untreated, unfiltered water drawn
from wells owned and, operated by the City.
SECTION 3 SUPPLEMENTAL WATER SUPPLY
A. Agreement to Sell and Purchase. Subject to all provisions of this Contract, the
Cornnmieo|mn shall sell and deliver tothe City, and the City shall purchase and receive from the
Cononniaoion, an amount ofPotable Water not to exceed five (5) K8G[} and in no event ohoU it
exceed 7596 of the City'o total water usage. This amount includes municipal use, mvetmnm
leakage and metering losses located beyond the Point of Delivery. The Commission's obligation
to the City to deliver Potable Water hereunder shall be limited to this amount.
B. Beginning of Obligations to Deliver and Receive Pota)le Water. The Commission
shall boobligated todeliver Potable Water tothe City Waterworks System,and the City shall be
obligated to receive at the City Waterworks System. Potable Water delivered by the
Commission immediately after completion of construction of the Point of Delivery and any other
City 8yo&smn Connection Facilities and any Cornrn|eoion Connection Facilities and inspection
and approval for operation thereof by the Commission and any other regulatory agency. This
paragraph includes any water used to test or prepare the City System Connection Facilities.
C. Limits on Supply. The Commission shall use its beat efforts to furnish Potable
Water to the City as hereinabove pnovidmd, but the City acknowledges and aQrmao that the
Commission's obligation hereunder is limited by:
i. The amount ofPotable Water available to the Commission from time hmtime;
ii. The capacity of, and any risk ofharm to, the Commission Waterworks System
due tothe furnishing ofPotable Water;
iii. Ordinary transmission |oos, including standard metering error, between the
Commission's source of supply and/or the Point of Delivery to the City
Waterworks ;
k/. The Provisions ofthis Contract; and
NVVC/City approved version October 2O14
V. Force N1 j na.
D. Additional Subseguent Customer The City acknowledges that the Commission
may enter into contracts for the sale by the Commission ofPotable Water to Customers other
than City. The Parties acknowledge that the robam for the sale of Potable Water in such
contracts may affect the rates charged to the City pursuant to Section 7 of this Contract.
E. . The Cumnnnina|on
undertakes house reasonable care and diligence to provide mconstant supply ofPotable Water
mmherein provided, but reserves the right atany time to cease or reduce the flow ofPotable
Water in its mains for emergency and maintenance purposes. The Commission shall give notice
not less than 48 hours in advance of any stoppage for scheduled maintenance purposes and it
eho|| give such notice as is reasonable under the particular circumstances of any cessation or
reduction offlow for emergency purposes. The Cmnnmioa|mn shall provide as much notice as
practical where the flow of water is expected to be reduced temporarily.
F. . Subject to the rights of the
Member K8unioipa|itiea, if it becomes necessary for the Commission to limit its delivery of
Potable Water to its Cuetonnano for any reason, the City shall be entitled, to the extent poee|bka
after taking into account all factors including but not ||mnihad to the rights of the Member
N1un|cipa|itiee, to receive during such period ofcurtailment o pro rata share of available Potable
Water as determined by the ratio of the City Waterworks Syatenn'a total Potable Water delivered
during the prior Fiscal Year to the eunn of Potable Water delivered during the prior Fiscal Year of
all of the Commission's Customers entitled to Potable Water during such period of curtailment.
G. Limits on Use. Potable Water delivered by the Connnniea|on to the City pursuant
to this Contract shall be used solely for the purpose of resale by City for use on land within the
jurisdiction of the City. Except for the City'a extraterritorial customers existing as of the Effective
[}aha. as listed in Exhibit C to this Contract, neither the City nor any customer of the City aho\|
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NVVC/City approved version October 2O14
sell or resell Potable Water to anyone outside the jurisdiction, or for use outside of the
jurisdiction, ofthe City without the written approval ofthe Commission.
SECTION 4 gUALITY; DELIVERY; STORAGE; DISTRIBUTION; CONSERVATION
A. Water Quality. The Commission shall supply the City with Potable Water of a
quality commensurate to that furnished to the Commission's other Customers and Member
Municipalities. The Commission bears no responsibility for the contamination of Potable Water
or deterioration of water quo|dv occurring beyond the Point of Delivery to the City Waterworks
System.
B. Maintenance of System; Water Quality; Prevention of Waste. The City shall
operate the City Waterworks Systems in such amanner oeatnotime to place the Commission,
or the Commission \8hutenmorhe System, in jeopardy of failing to meet (h the regulations of any
hadana|. State of |U|noie. or |mue| agency or governmental authority having jurisdiction over the
operation of the Commission's Waterworks System or (ii) the commitments the Commission has
to its W8ennbara, other customers and to its water suppliers. The City shall notify the Commission
immediately of all emergency and other conditions that may directly or indirectly affect quantity
or the quality of the water to be received under this Contract or the C}ornrn|eeion Waterworks
8yabmmn or water supply. The City further agrees to take reasonable measures to conserve
C. No Use of Wells and Well Water.. The City warrants and represents that it does
not distribute well water through the City Waterworks System to its Potable Water customers
and will not doaointhe future without the written consent ofthe Commission.
O. The Cit/a operation of the City Waterworks System,
including, without limitation, its pressure adjusting stations, shall not cause surges or back -flows
into the Commission Waterworks System and any connection to the Commission Connection
Fmcj|UUeo and/or Commissioner Waterworks System to the City System Connection FonUUeo
shall be provided with air gap protection. The Commission shall not be responsible for any
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NVVC/City approved version October 2D14
damage to the City Waterworks System caused by the design. operation,ormaintenance of the
City Waterworks System.
E. Cily Waterworks System Pressures. The City ahm|| be em|m|y responsible for
delivering Potable Water to its customers at pressures required or necessary to make such
delivery.
Mains.F. Connection to Transmission The C\h/ shall not construct or |nmta||, nor
permit to be constructed or installed, any taps from or connections to the Commission
Waterworks System. Such prohibited taps and connections shall include, without Unnitation,
distribution rna|na, va!weo, fire hydrants and service lines. Nor aho|| City construct taps on the
City Waterworks System at or near the Point of Oe|ivary, without written consent of the
Commission.
G. . The Cib/, mtits own expense and pursuant to
the schedule established in Section S of this Contraot, ohmU site, design, conatnuct, moerote,
rnaintain, and when necessary replace the City Svetann Connection Fmoi|ities, including any
valves and/or pressure adjusting stations as may be required, immediately downstream from the
Point of Delivery. Initial design and construction plans and specifications for the City 8yetmnn
Connection Fao||ibee, and any future modifications thereof, nhe|| be submitted in advance of
construction or modification to the Commission for review and approval.
SECTION MEASURING EQUIPMENT
A. Meterinq Stations.
i Construction of Metering Stations.The City ehsd|, pursuant to the
schedule established in Section S of this Cmntnact, furnish and install metering stations
containing the nGomaoory equipment and dex|oaa of a type meeting the standards of the
American VVmbmr VVorhG Aammoiation, and as determined in the sole discretion of the
Connnmioe|on, for measuring properly the quantity of Potable Water delivered under this
Contrao1, including all structures as the Commission ahm|| deem necessary to house such
NVVC/City approved version October 2O14
equipment and devices. Such furnishing and installing of the metering stations shall be done in
substantial conformance with the preliminary plans therefor attached as Exhibit B to this
Contnact, as such preliminary plans may be revised by mutual agreement of the Commission
and the City. After construction is completed by the City and approved by the Commission, the
City shall convey to the Commission and the Commission shall ovvn, opora1o, nnmintain, and
replace such metering stations and all equipment and structures related thereto.
ii. Site of Point of Delivery Metering Station. The metering station for the
Point ofDelivery shall be located within the Connection Area in a specific location determined
by the Commission. Water shall be delivered at atmospheric prmeeuna such that an air gap
exists between the Connnoioe|on Waterworks System and the City System Connection
Facilities.
iii. Access by City. The City shall have access to the metering stations for
examination and inspection in o manner to be mutually agreed by the Parties. The reading of
the meters for billing purpooeo, and the calibration and adjustment ofthe meters and other
equipment in the metering stationo, ohoU be dune only by the employees or agents of the
Commission atthe cost 0fthe City.
iv. Meter Reading. The Commission intends to read the meters in the
metering station on the first day of each month.
B. Records. For the purpose of this Contraot, the official record of readings of each
meter at the metering station ghoU be the handwritten journal or other handwritten or electronic
record book ofthe Commission in its office |nwhich the records ofthe employees oragents of
the Commission who take the readings are or may be transcribed or entered. Upon written
request of the City, the Commission will give the City a copy of such handwritten journal Or
record bmmk, or permit the City to have access thereto in the mffiom of the Connnmian|mn during
regular business hours.
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MVVC/City approved version October 2O14
C. Calibration. The Commission oheU calibrate be meters at least once in each
Fiscal Year measuring the Potable Water delivered to the City Waterworks System. If requested
in writing by the City to do ao, said calibration shall be in the presence of representative of the
Citv, and the Commission and the City shall jointly observe any adjustments that are made to
the meters in case any adjustments shall be necessary. If any check meters have been
|neta||ed, than such check meters shall be calibrated by the Citv, if requested in writing by the
Commission to do eo, atleast once in each Fiscal Year in the presence mfa representative of
the Conorniaeimn, and the Commission and the City shall jointly observe any adjustments that
are made tothe meters incase any adjustments shall benecessary.
D. Check Meters. The Citv, at its option and its own expense, may |ne1a|| and
operate o check meter to check each meter installed by the Commission. Notwithstanding the
fonegoing, the measurement of Potable Water for purposes of this Contract ahoU be solely by
the Commission's meters, except |nthe cases hereinafter specifically provided to the contrary.
All check meters shall be of standard make and mhoU be subject to inspection and examination
by any employee or agent of the Connrn|oeion at all reasonable times. The calibration and
adjustment ofcheck meters shall be made only by the Qtv, except during any period when m
check meter may be used under the provisions hereunder for measuring the amount of Potable
Water delivered to the Citv, in which case the calibration and adjustment ofsuch check meter
ehe|| be made by the Commission with like effects as if such check meter had been furnished
and installed by the Commission.
E. Meter Malfunctions. If the Cornnnima|on or the City at any time observe a variation
between a meter and a check meter orany evidence ofmeter malfunction, such Party oho||
promptly notify the other Party and the Commission and the City shall then cooperate to procure
an immediate calibration baat and such adiuetnlent, nap|acernert, or other work necessary to
return such meter to accuracy. The Party who discovers such variation or malfunction shall give
the other Party notice not |eeo than 72 hours prior to the time ofany test of any meter (which
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NVVC/City approved version October 2014
tests shall be conducted, if practical,during normal working hours) so that the other Party may
conveniently have e representative present. If such representative is not present after the
required notification at the time sat in such nobma, calibration and adjustment may proceed in
the absence of said representative notwithstanding any other provision of this Subsection. If the
percentage of inaccuracy of any meter is found to be in eooeog of two percent between the
check meter and the Commission nne{er, registration thereof shall be corrected by agreement of
the Commission and the City based on the best data avai|ab|m, for a period extending back to
the time when such inaccuracy began ifsuch time is ascertainable, orfor a period extending
back one-half of the time elapsed since the |mct date of calibration (but in no event further back
than aperiod ofsix months) |fsuch time ienot ascertainable.
If for any reason any meter is out of service or in disrepair so that the amount of Potable
Water delivered cannot beascertained orcomputed from the reading thereof, then the Potable
Water delivered during the period such meter is out of service or in disrepair shall be deemed to
be the registration of the check meter if one has been installed and is registering accurately, or,
in the event that no check meter has been installed or the check nnehar is registering
inaccurately, shall beestimated:
i. By correcting the error if the percentage of the error is ascertainable by
calibration tests ormathematical calculations; or
ii. If the error is not ascertainable by calibration tests or mathematical
ma|ou|ation, by estimating the quantity of delivery by considering deliveries during preceding
periods under o|rni|or conditions when the meter or meters were registering accurately. During
any period of such disagreement, the Commission's estimate of water da||vanad oheU be used
for the purpose of computing payments due under Section 7 of this Contract, and any
adjustments based upon later resolution of such disagreement shall be made by appropriate
adjustments tothe City'mfuture payments pursuant to Section 7.
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NVVC/City approved version October 2O14
F. Removal of Metering Stations. Atany time after 9Odays following the termination
of this Contract without vanexva|. the Comnrniseion, at its own expense and in its d|screton, may
remove the metering stations, including equipnnent, and any SCAOAantennas and appurtenant
facilities and release any perpetual easements therefor.
G. Removal of Transmission Mains. Within 120 days after the termination of this
Contract without manevva|. the Citv, at its own expense, shall remove or abandon in place any
City transmission rneinn and other equipment and appurtenances owned by the City that are
located on Commission property or within the Commission service area. Any proposal by the
C|b/ to abandon in place aho|| be subject to the prior review and approval by the Commission.
The City shall be solely responsible for completing all restoration work necessary asa result of
the removal ofthe same.
H. Meters for City Customers. The Cmnnrniaoion shall have no responsibility for
ensuring that the City customers have operable water meters nnmet|nQ the standards of the
American Water Works Association.
1. Right of Inspection. The Commission reserves the right to inspect the property of
the City System Connection Facilities to ensure that the facilities are being operated consistent
with the terms of this Controct, including but not limited to inspections to ensure there are no
cross connections that threaten potential contamination to the Cornnn|eeion Waterworks System
and to ensure that the Commission Waterworks System is otherwise fully in accordance with
state and federal law. If the inspection discloses any code violations or threats to the
Commission Waterworks System, the Connnniaa|On ehmU deliver the City a notice at the address
listed in Section 20 hereof of the Commission's intention to shut off the supply of water to the
City at the expiration of48 hours after giving such notice unless within the 48 hour period the
City shall cure said threats to the Commission Waterworks System. The foregoing
notwithstanding, inthe event such threats tothe Commission Waterworks Gyetmnn constitute on
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NVVC/City approved version October 2O14
emergency, the notice required of the Cmnnnnisgkon shall be no more than is reasonable under
the circumstances.
The unit of measurement for Potable Water delivered hereunder shall be gallons of
water, U.S. Standard Liquid Measure, and all measuring devices shall baaocalibrated unless
the Commission and the City agree otherwise in writing. Should it become necessary or
desirable to use other units of measurement, the basis of conversion shall be that 7.48 gallons
is equivalent to one cubic foot.
A. Rate. For the first year of this Contract, the rate to be charged shall be based on
actual monthly usage by the City and ohsd| be a minimum Vf$1.78/1.000 gallons. This rate is
based on m (1) capital charge based on current capacity which is presently $0.80/1000 gallons;
(2) operation and maintenance ometo of the Commission based upon actual usage which is
presently $1.18/1000 gallons; and (3) costs charged by the City of Evanston for providing water
to the Connnmiaaion, under the contract between the Commission and the City of Evanston, that
are not included in the operation and maintenance costs charged pursuant to item (2) above
(collectively the "Rate Formula").
B. Ad*ustments to Rate. Rates will be examined by the Commission and shall be
subject to annual adjustment by the Commission pursuant to the Rate Formula set forth above.
E. Bills and Due Date. The Commission shall bill the City monthly based upon
actual monthly usage as delivered by the Commission pursuant hothis Contract.
F. Disputed Payments. If the City desires to dispute any paynlerd, or part thereof,
due or claimed to be due under this Contract, the City shall nevertheless pay the full amount of
any such payment when claimed by the Commission to be due and shall provide written
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NVVC/City approved version October 2O14
notification to the Commission that charges are disputed, the grounds for dkmoute, and the
amount in diepute, not later than the due date of such payment. No adjustment or relief on
account ofany disputed charges shall bemade unless disputed charges are the subject ofsuch
notice within the time herein epeoif|ed, or within o reasonable period from the time the City knew
or should have known of the facts giving rise to the dispute. It is expressly understood and
agreed that no dispute over payments due or claimed to be due under this Contract shall be
referred to arbitration for review or settlement. Upon receipt of m notification of dispute,
representatives of the Commission shall meet with representatives of the City to resolve such
dispute. |nthe event the dispute ioresolved infavor of the City, acredit will bemade onthe next
bill of the City.
G. Overdue Payments. If the City shall t3i| to make any payment required under this
Contract onorbefore its due date, and after notice and anopportunity tocure aoset forth herein
has been exhausted, the Conlrn|eeion shall have the right to exercise any or all of the following
three remedies:
i Interest. The Commission, at its option and in its discretion, may collect
from the Chv. and the City ehoU pay to the Commission, interest on the amount of such
payment, at the rnaajmnumn legal rate payob|e, not to exceed the higher of:
e. the highest coupon rate of interest payable on all series of Commission
Revenue Bonds any of which are than outstanding, cdua 3%; or
b. 11096 of the prime rate of interest from time to time established by the
largest oonnnnarcia| bmnk, measured in terms of total assets, located and
doing banking business in the State of Illinois. Such interest shall accrue
and oho|| be compounded on a monthly basis from the date such
payment becomes due until paid in full with interest as herein specified.
ii. . If such payment is not made by
the City within 30 days after the date such payment becomes due, than the Commission, at its
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NVVC/City approved version October 2D14
option and in its discretion, and whether or not such payment is disputed, may reduce or
discontinue delivery of Potable Water tothe City Waterworks System until the amount due to
the Commission is paid in full with interest as herein specified. The Cmmnrn|eaion ehoU give
notice to the City not less than 10 business days prior bothe event of its intention to naduma or
discontinue delivery ofPotable Water in accordance with this Subsection and shall provide the
City an opportunity for e hearing prior to any reduction or discontinuance. If the Commission
reduces or discontinues the delivery of water under such circumstances, the City shall continue
tobeliable tomake all payments hereunder for any water used.
iii Security Deposit.
a. Purpose. If the City is at any time in default on any payment due under
this Contract and the default is not cured within 60 days after the due
date ofthe defaulted payment, then the Commission, otits option and in
its discretion, may require City, as a further obligation under this Contract,
to deposit in m eepenaha interest bearing account in the Commission's
nomme, with authorized signatories as designated by the Cunnrn|eoion'o
Executive [)inaotmr, o sum of money in a reasonable amount determined
by the Comnmn|oe|on, as security for the payment of the C|b/'e obligations
hereunder. The Citv'a compliance with the Commission's demand for
such a security deposit shall be e condition precedent to the curing of
such C|tv'o default and the restoration of the Potable Water een/|oe to the
City VVa0enmorKa 8yctgnn, if such Potable Water service has been
reduced ordiscontinued byreason ofsuch default.
b. . The security deposit or any part thereof may be
app|imd, at the Connnm|aoion^o option and in its d|aoredion, to any
subsequent default bythe City inany payments due under this Contract.
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NVVC/City approved version October 2U14
If so applied, the City ohoU provide funds |rnnnadiatak/ to restore the
security deposit tothe amount required bvthe Commission.
C. Return. At the earliest of the and of the term of this Contnaut, or o term of
two years after the curing of the most recent default by the C|hv, or such
earlier time that the Commission at its option and in its discretion may
detmrnnine, any security deposit with all accrued interest shall be returned
to the City if the City has performed all its obligations under this Contract.
M. Beginning of Obligation to Pay. Notwithstanding any other provision of this
Contract, the City'aobligation tonnakeonyondaUpaym/entmundmrUhkaContractohaUbeoinvvith
the issuance bvthe Commission ofthe first bill issued after the first delivery ofwater to the City
Waterworks System or any portion thereof. This obligation indudeo, but is not limited to, any
water used to baet or prepare the City Waterworks System.
|. Rate Agreed to be Reasonable.The City agrees that ithas had anopportunity tq
conduct its own studies and evaluation of the rates to be charged under this Contract. The City
recognizes and acknowledges that as e Customer it has not incurred the same risks nor
undertaken the same financial obligations with regard to the Commission Waterworks System
as the K8ernbmr Municipalities. The City further unconditionally agrees that the rates in this
Contract are reasonable and non-discriminatory and hereby expressly waives any and all claims
challenging the rates inany way.
J. Commission Charges and Rates Covenant. The Commission hereby covenants
hzestablish such charges and rates for water supplied tothe City aowill basufficient stall times
(1) to pay the costs of operation and maintenance of the Commission \8atmnmorhe ; :Q
to provide an adequate depreciation fund for the Commission Waterworks System as
determined by the Commission on the boo|a of its statutory duties and its obligations under the
Bonds and ordinance or ordinances authorizing the |aeuanoa of the Bonds; (3) to pay the
principal of, at maturity or pursuant to mandatory redemption requirements, premium, if any, and
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NWC/City approved version October 204
interest on the Bonds; (4) to comply with the covenants of the ordinance or ordinances
authorizing the issuance ofthe Bonds; and (G)tocarry out its corporate purposes and powers.
For purposes ofthis paragraph J.a"aufficiant" amount shall mean enamount adequate,
when taken together with any and all other amounts available, in the oo|a discretion of the
Connnniaaion, to enable the Connrniea|on 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 ioouonoae of the Bonds and for maintenance of o
reserve fund.
K. . City hereby covenants to establish such
charges and rates for water supplied by the City to consumers as will besufficient at all times
(1) to pay the costs of operation and maintenance of the City Waterworks System, (2) to provide
an adequate depreciation fund therefor, (3)bz pay the principal of and interest on all revenue
bonds of the City payable from the revenues of the City Waterworks Gysdenn. (4) to pay the
charges and rates established by the Commission for the sale of water by the Commission to
the City. The City agrees to approve initial rates sufficient to aeUofv this rate covenant not later
than 30 days after execution of this Contract and shall file its rate ordinances with the
Commission upon adoption.
L. Character of Payment Obligations as Water Revenue Obligations. This Contract
shall not be construed to constitute on indebtedness of the C|hv within the meaning of any
statutory or constitutional limitation. |tiaexpressly understood and agreed that all payments to
be made hereunder by the City may be required to be made only from revenues to be derived
from the operation of its City Waterworks Gymtom, and this Contract shall be o oontinu|ng, valid
and binding obligation of the City payable from such revenues throughout the term hereof.
Without in any manner limiting the foregoing provisions of this Paragraph L. it is also expressly
understood and oQnaed that the aforesaid revenues from the operation of the said City
Waterworks System ahoU nsrnmin available for payments due or claimed to be due under this
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NVVC/City approved version October 2O14
Contract without regard toany designation ofsuch revenues bvthe City from time to time as
operating ravenue, retained earninAo, reaenves, surplus or otherwise. Nothing in this Paragraph
L or this Contract shall, hoxvavmr, prohibit any City from using any other legally available funds
for payments due hereunder.
M. Character of Payment Obligations as Operating Expenses. Inasmuch as
obtaining water is an essential item of expense of waterworks system, City
hereby represents
and covenants that all payments required to be made by it pursuant to the provisions of this
Contract shall constitute operating expenses of its City Waterworks System and that such
payments will constitute operation expenses aotoany and all revenue bonds ofthat City which
one supported in xvho|a or in part by o pledge of the revenues of its City Waterworks 8yatmnn,
with the effect that such Cin/'a obligation to make payment from its water revenues under this
Contract has priority over its obligation to make payments of the principal of any |n0en*ot on any
such bonds which are or will be supported in xvho|a or in pad by a pledge of that Cib/'e
\8/obgnworks System revenues. Consistent with this paragraph M. City 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 City obligations to be paid from the revenues of its City
Waterworks System shall expressly provide that the revenues of the City Waterworks 8yabanm
may be used to pay the principal of and interest on such obligations only to the extent that those
navanuan exceed amounts naqu|na to pay the operating expenses of the City Waterworks
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 City hereunder. Without in any manner limiting the
foregoing provisions of this Paragraph M. it is also expressly understood and agreed that the
obligation of the City under this Contract shall be enforceable against and collectable from any
monies from time tmtime available in any ofthe various accounts and funds, including reserve
and surplus accounts, maintained by the City in connection with the City Waterworks System.
SECTIO SPECIAL CONDITIONS AND COVENANTS
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NVVC/City approved version October 2O14
A. No Liability for Delay. The City acknowledges and agrees that the Commission
shall not be liable to the City nor any of the City's customers for any damages occasioned by or
in any way related to delay Or failure in the delivery of Potable Water to the City Waterworks
8yctenm, except if the Commission vvi||fu||y delays or discontinues water service in bnsouh of this
Contract.
B. Title to Potable Water.TiUe toall Potable Water supplied hereunder shall remain
in the Commission tothe Point ufDelivery and thereupon shall pass tothe City.
C. . The City nluat, during the term of this
Contract, maintain o contract with another unit of local government or any other entity for
purchase ofPotable Water to meet its full water raquinomnento, not including water supplied by
the Commission. The City shall install noetero, on any evetenn providing additional water supply,
which would a||ovx the Commission to monitor the amount of water provided to the City on o
daily basis.
D. Covenants to Be Set Out in Bond Ordinances. The City aohnovvadQmo and
agrees future Bond Ordinances may grant to bondholders certain rights and duties of the
Connrniaoion, and that such bondholder rights may be included in any subsequent Bond
Ordinances.
E. Other Financial Obligations of City Waterworks System.
i.Payment . The City shall make all budgetary, emergency, and
other provisions and appropriations necessary to provide for and authorize the prompt payment
tothe Commission ofall amounts under this Contract.
ii. . In any revenue bond, indenture, orother evidence of
indebtedness hereafter issued by the Cib/, the obligation for payment established pursuant to
this Contract shall be expressly provided and set forth in the ordinances or resolutions providing
for the issuance of such bonds. |ndentunee, or other evidence of indebtedness.
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NVVC/City approved version October 2O14
F. The Citx's corporate authorities agree that,
during the term of this Contract, the City will maintain its existence as a municipal cOrporaton, it
will continue to be o municipal corporation in good standing in the State of U|inoie, it will not
voluntarily dissolve or otherwise dispose of all or substantially all of its amsetm, and. unless the
C|b/ shall be the surviving enthx, it will not consolidate with or nneUQe into any other legal entity
orpermit any other legal entity to consolidate with or merge into it; provided, however, that the
City may consolidate with or merge into another legal entity, or permit one or more legal entities
to consolidate with or merge into it, or ee|| or otherwise transfer to another legal entity all or
substantially all of its assets as on entirety and thereafter dissolve, if, but only if. the City first
provides the Commission with (1)atransferee assumption ggpeement, inform and substance
conforming with Exhibit [} attached, in which the new entity agrees to accept all the r|ghte,
dutiea, and obligations of the City under this Contract; (2) evidence that the oun/iving, resulting,
or transferee legal entitv, as the uooe may be, is o legal entity organized and existing under the
|avva of one of the eta0ao of the United States of America or the District of Columbia, is qualified
to do business in the State of Illinois, and has a consolidated net worth immediately subsequent
to such aoquiaibon, conao|idation, or merger at least equal to that of the City immediately prior
to such acquisibmn, consolidate, or merger; (3) evidence that such oonao|idmtinn, rneDQer, oo|e,
or transfer will not affect the tax exempt status of the interest on any Bonds of the Commission;
and (4) certificates from the chief financial officer and the general counsel of the City that in the
opinion of each such officer none of the coxmnanta, mgraemnen1o, or obligations contained in this
Contract will be violated as a result of such consolidation, merger, sale, or transfer.
G. City Jurisdiction. The City shall not serve any customers outside of its Municipal
boundaries, except as provided in Subsection 3G of this Contract and as listed in Exhibit C or
with the express prior written agreement mfthe Commission.
H. Maintenance and Operation of City Waterworks System. The City shall own and
maintain the City Waterworks Gyobenn, and all improvements and extensions of said System, in
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NVVC/City approved version October 2U14
good repair and working order, shall operate said System efficiently, eh@| take all steps
reasonably necessary so that said System may at all bnleo be operated properly and
gdmantaoemumly, and shall punctually perform all duties with respect to said System as may be
required by this Controot, and by the Constitution and |axvo of the United States of America and
the State of Illinois and all other applicable laws. In addition, City shall carry insurance or other
risk management protection on its City Waterworks Gyatann of the kinds and in the amounts
which are customarily carried by parties operating similar facilities.
|. City Regulations Equivalent to Member Municipality Regulations.The City shall
enact regulatory measures regarding the supply and use of Potable Water within the Cdv.
including, without limitation, lawn opr|nWing, that are at least as restrictive as the strictest among
those adopted bvthe Commission orthe Member Municipalities.
J. Accounting and Audit.The City shall, within six months after the close ofeach mf
its fiscal years occurring during the term of this Contract, provide to the Commission complete
annual audited financial statements of the Chx, which may be on e consolidated banie, duly
certified by the City's independent certified public accountants. In addition, no later than October
31 of each calendar year, the City ahe|| provide the Connnniao|mn with e full accounting of water
use and source ofsupply for the prior 12-nnonthperiod.
K. Maintain Ownership of City Waterworks Syste . Subject to the proper exercise
by a governmental authority of its powers of eminent domain including its power to acquire
property in lieu of obtaining judgment in an eminent domain aobon, the City shall continue to
own and possess the City Waterworks System and, within the exercise of reasonable business
judgment and in a manner so as not to cause a default hgreunder, shall dispose of property
which is part of said System only to the extent that such property is no longer useful or profitable
in the operations of said System and with approval of the Commission, which approval shall not
beunreasonably withheld.
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NVVC/City approved version October 2O14
L. No Sale of City Waterworks System. The City shall not sell orotherwise convey
the City Waterworks System or any portion thereof, mrenter into on agreement for the ae|e of
the City Waterworks System or any portion thenecf, unless such sale or conveyance is to the
Cornmmisgion, or an entity approved by the Commission, in its sole d|aopabon.
M. Release and Indemnification. The City hereby releases the Commission and the
Member Municipalities from, agrees that the Commission and Member Municipalities shall not
be liable for, and agrees toindemnify andholdUhe Commission harmless from: (1) any liabilities
for any |ooa ordamage to property or any injury to, or death of, any third party that may be
occasioned by or related to any cause whatsoever pertaining to the provision of water under this
Contract, except if the Commission vxi||fu||y acts in breech of this Contmaot, or to construct|on,
inoƒa||abon, nennova|, na|ocaMon, nep|aoernant, emtmnaion, innpnovament, rnainbenance, or
operation of the City Waterworks System or to the City System Connection Fooi||bea or (2) any
liabilities, |oeeee, or dammagao, or o|a|nne fhgrefmr, arising out of the failure, or claimed hai|una, of
the City to comply with its covenants or obligations contained in this Contract, |no|uding, in each
such caoa, any attorneys' fees /m|| of the nnottare in phrases (1) and (2) being referred to
individually aea "Claim" and collectively aathe ''C|a|rna''\. The City agrees to indemnify and hold
the Commission, the Commissioners and Member K8unioipo||t|am individually hornn|eoa to the
fullest extent permitted by law from any |ogsoo, coato, uhapgmo. expenses (including attorneys'
fems), judgments, and liabilities incurred by the Cmrnmn|mm|on, the Commissioners, or Member
Municipalities in connection with any C|m|nl or aot|mn, ouit, or proceeding instituted or threatened
by any third party in connection with any Claim. If any C|minn is asserted, the Commission, the
Commissioners, or Member Municipalities ohm|| give prompt notice to the Citv, and the City, if
requested by the Commission, the Commissioners, or Member K8unicipa|itiea, shall assume the
defense thereof, it being understood, however, that the City shall not settle or consent tmthe
settlement of any such C|@irn without the written consent of the Commission, the
Cmnnnniaoionere, orMember Municipalities and that the Commission ahm|| be entitled tochoose
23
MVVC/City approved version October 2O14
the counsel for any such defense. This paragraph shall innoway beconstrued tobenor shall it
be o waiver of any immunity that the Commission, the Commissioners, or Member
Municipalities and/or City may assert to any Claim.
M. Assignment of Litigation. The City shall promptly notify the Connnnioa|on of any
litigation oradministrative or other proceedingconcerning this Contract orwhich may inany way
limit any Portve ability to perform any of the obligations of this Contract. Upon request of the
Commission, the City shall promptly assign to the Commission the right to prosecute, defend or
intervene in any litigation or administrative or other proceeding, to which the City is a party or in
which the City is involved, that involves or arises out of the limitation of the Party's obligation as
set forth in this Contract. Upon assignment, the Commission shall be responsible for all costs
and expenses ofthe litigation oradministrative orother proceeding.
[). Rate of Withdrawal. The City will take Potable Water at the most uniform and
continuous rate of withdrawal practicable.
P. Status as Customer.The City recognizes that itiuocustomer and not mmember
of the Commission. The City understands and agrees that it has no claim or rightto become a
member, and no doinn that the City should be granted Member Municipality status due tothe
1emnm Of this Contract and no c|oinn to any assets of the Commission or the Member
Municipalities. Notwithstanding any other provision of this Contract, in the event that the State
statutory threshold for becoming a member of the Commission is amended to be less restrictive
than the current naquinernenta, as of the Effective Omby. found in 85 |LCG 5/11-135-1 et seq.
then the Commission and the Cib/, prior to the effective date of those |eme restrictive State
mnmandmentm, will confer in good faith on amendments to this Contract to avoid any right in the
City to be a member of the Commission and any obligation of the Connnn|aoion to confer
membership status on the City, and. in the absence of agreement on annendnmento, after
reasonable negot|otiono, prior to the effective date of the State annendmnenta, than the
Cononniem|on ahe|| have the right to harnn|nahe this Contract.
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NVVC/City approved version October 2014
SECTION 9 SCHEDULE FOR COMPLETION OF VARIOUS FACILITIES
A. Plans and Specifications for Citv Svstem Connection Facilities and Commission
Connection Facilities. The City shall prepone, and submit to the Commission for its review and
approva|, complete detailed p|ana, npeoUioa1|mns, and construction contract documents
(collectively the "Construction Documents") for the City to construct the City System Connection
Facilities and the Commission Connection Facilities. The Commission oho|| provide its
comments and nax|oiono on the Construction Documents tothe City within 45 days after receipt
of those documents. The City shall nlmka all required ohmn0aa to the Construction Documents
necessary toensure compliance with this Contract. '
B. IEPA and Other Al?provals For City System Connection Facilities and
Commission Connection Facilities. The City shall, within 40 days after receipt of Commission's
comments and revisions pursuant to Subsection 9A aboxa, submit the final Construction
Documents for approval and permitting to the UUno|o Environmental Protection Agency (the
"|EPA^\ and each other federal, state, or |moa| governmental body having jurisdiction over the
City System Connection Facilities and Commission Connection Faci||t|ea, and aho|| diligently
pursue each such approval and permit until |t|osecured.
C. Commencement of Construction of City System Connection Facilities and
Commission Connection Facilities. The City shall cause construction of the City System
Connection Facilities and Commission Connection Facilities to be commenced within K90ldaye
after the [|dv receives the last approval from any governmental body required as a condition
precedent to construction of the City System Connection Feci|ibeo, K8mtmr|n0 Stations and
Commission Connection Facilities. The City shall cause construction to be pursued diligently
and continuously until itiecompleted.
D. Transfer of Property Rights/Payment Covenant/Oversizing.
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NVVC/City approved version October 2O14
i Conveyance of City Easement. The City shall grant tnthe Commission all
necessary easements for the Commission metering stations and other facilities to be
constructed on City owned or controlled property pursuant to this Contract.
ii. Acguisition of Property.The City shall commence all actions necessary to
ooqu|na all property rights not already owned by it necessary to fulfill the requirements of this
Contract.
iii. Payment Covenant. It is erpnoao|y understood and mQnaed that the City
shall be responsible for the payment of the design and construction of the City System
Connection Facilities and Commission Connection Facilities. It is further agreed that upon
connp|mbun and approval of the Cornnn|oaion Connection Facilities, by the Cornnmieaion, said
improvements shall be conveyed to the Commission, at no cost to the Commission.
iv. Oversizina. In the event that the Connrnioa|mn requires that the City
System Connection Facilities, the Commission Connection Focj|itieo, or any other element of
the City's work on an element of the Commission Waterworks System be oversized, said cost of
ovmraizing will be reimbursed to the City through a reduction in the cost of water provided
pursuant to this Contract. The reimbursement will be applied to the C|h/'o b||| for water smn/|ca
on a monthly basis over a one year period or such longer period as necessary to fully reimburse
the cost mfo*areizinQ to the City.
SECTION 10 ASSIGNABILITY
A. Assignment by City. The City shall not assign or transfer this Contract or any
rights orinterests herein without the advance written consent ofthe Commission.
B. Assignment bV the Commission.. The right to receive all payments that are
required totemade bvthe City to the Commission inaccordance with the provisionsofthis
Contract may be assigned by the Commission to any Trustee as provided in any Bond
Ordinance hosecure the payment ofthe principal oYand the premium, if any, and interest onthe
Bonds as those amounts come due, subject to the application of those payments as may be
NVVC/City approved version October 2014
provided inany Bond Ordinance. The City, upon notice of assignmenttoonysuohTruotea.ehal|
nnoka all payments directly to such Trustee. Further. the rights of the Commission to enforce the
provisions of this Contract may be assigned to any such Trustee and. in such event, such
Trustee shall have the right to enforce this Contract at law or in equity with or without the further
consent or participation of the Commission. The Commission also may retain the right to
enforce this Contract.
SECTION 11 FORCE MAJEURE
If by reason of Force Majsunp either Party tothis Contract shall be rendered unable
wholly or in part to carry out its obligation under this Contract, then if such Party shall give
notice and full particulars ofsuch Force Maeumeinwriting blthe other Party within areasonable
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 Ma�puna, shall be suspended during the
continuance of the inability then o|oimned, but for no longer pariod, and any such Party shall
endeavor to remove or overcome such |nebi||b/ with all reasonable dispatch. The settlement of
strikes and lockouts shall baentirely within the discretion of the Party having the difficulty and
the above requirement that any Force M*&aume aho|| be remedied with all reasonable dispatch
shall not require the settlement of strikes and |mohoute by acceding to the demands of the
opposing Party orParties when such settlement |sunfavorable ƒgitinthe judgment ofthe Party
having the difficulty.
SECTION 12 COMMISSION DEFAULTS, CITY TERMINATION
Failure by the Commission to deliver Potable Water to the City as required by this
Contract fore period ofseven days after written notice from the City to the Commission of such
tai|ume, or a failure of the Commission to perform any other obligation under this Contract for a
period of6Odays after written notice from the City bathe Commission ofsuch failure, shall boa
default of the Commission under this ControoL, unless any such failure is excused or exercised
pursuant tothis Contract. |Ythe Commission defaults under this Contract, then the City may, ea
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NVVC/City approved version October 2014
its sole and exclusive remedy, declare this Contract null and void after giving the required notice
set forth above.
SECTION 13 CITY RIGHTS AND OBLIGATIONS
The City shall have: (1) no right to terminate, cancel, or rescind this Contract, except for
the right of termination in the event the Commission is unable to provide water to the City fora
period of thirty 80days after the commencement ofwater service; (2)noright to withhold from
the Commission orany Trustee who iaenassignee mfthe Commission pursuant tothis Contract
payments due under this Contract; (3) no right to recover from the Commission or any such
Commissioner amounts previously paid under this Contract unless paid in error or contrary to
the provisions of this Contract or law; (4) no right of reduction or set-off against the amounts
due ortobecome due under this Contract tgthe Commission; and (5)nolien onany amounts |n
any fund established by the Commission for any reason or on account of the existence or
occurrence of any avent, oondit|on, or oontin0ency, whether foreseen or unforeseen or
foreseeable or unforeseeable by the City or the Commission or any other person. It is the intent
hereof that the City ohm|| be absolutely and unconditionally obligated to make all payments
under this Contract except as otherwise expressly provided in this Contract. The Commission
may issue its Bonds in specific reliance on the limitations set forth in this Section with respect to
the rights mfthe City.
SECTION 14 TAX COVENANTS
At no time eho|| the City permit use of the City Waterworks Syctemn, as o namu|1 of (1)
ownership, (2) actual or beneficial use pursuant to e lease or rnonagamend, earv1ce, incentive
payment or output contract, or(2) any other similar arrangement, agreement or undere1mndin0,
whether written or oral, so that such use would prevent the Commission from issuing Bonds as
.,governmental uem^ bonds within the meaning of Section 141 of the |n1arne| Revenue Code of
1980. Furthermore, the City shall not take any act|on, or omit to tmha any action lawful and
within its power to toke, which action or omission would cause interest on any of the
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NVVC/City approved version October 2O14
Commission's Bonds to become subject hofederal income taxes in addition tofederal income
taxes to vvh|oh interest on such Bond is subject on the dote of original |aouanmo thereuf.
Additionally, the City mho|| use its best efforts to ensure that none of its debt ob|i0ationa,
including, without limitation, the City Bonde, ever become "private activity bonds" within the
meaning ofSection 141ofthe Internal Revenue Code of1908.
SECTION 15 COOPERATION QNISSUANCE OFOBLIGATIONS
The City and the Commission shall cooperate with each other |nthe issuance of their
respective debt obligations. Each ehmU comply with all reasonable requests of the other and
shall, upon reasonable request ofthe other:
A. Make available general and financial information about itself; and
B. Consent b»publication and distribution gfits financial information; and
C. Certify that general and financial information about it is aocurate, does not
contain an untrue statement of a nnmberio| fact, and does not omit to state a material tact
necessary in order to make the statements in that information, in light of the circumstances
under which they were nlade, not misleading; and
D. Make available certified copies ofofficial proceedings; and
E. Provide reasonable certifications tobeused |nmtranscript ofclosing documents;
and
F. Provide and pay for reasonably requested opinions of counsel of its choice as to
the validity of its actions taken with respect to and the binding effect of this Contract, title to the
applicable ovatenn, pending or threatened litigation which could materially affect its performance
heneunder, and other maoomnab|y related opinions. The first such opinion that is requested by
each Party shall beatopposite Porty'o eo|m cost and expense. Subsequent opinions shall be at
the sole cost and expense ofthe requesting Party.
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NVVC/City approved version October 2014
The provisions ofSubsection Aofthis Section shall bedeemed satisfied bvdelivery ofa
oonnp|oto set of the annual audited financial statements for the most recently completed fiscal
year, duly certified bvindependent certified public accountants.
SECTION 16 REGULATORY BODIES
The Commission and the City through this Contract seek to exercise and maintain all
sovereign rights granted to them under and through the Constitution and laws of the State of
Illinois. This Contract shall be subject to all valid mu|eo, regulations, and |avvo applicable hereto
passed or promulgated by the United G1oteo of America, the State of U|inoio, any governmental
body or agency having lawful juhsdicbmn, and any authorized representative or agent of 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 ru|m, regulation, or |avv on any Uooia, including the
impairment ofthis Contract.
SECTION 17 OTHER WATER SUPPLIERS
Notwithstanding any of the provisions of this Contract, the Commission is not prohibited
by this Contract from entering into cooperativearrangements with other suppliers orusers of
Potable Water to provide Potable Water to each other to meet each other's vvotgr negdo,
provided that these arrangements do not interfene, except in emeDgenc|eo, with the delivery of
Potable Water tothe City Waterworks Gyotarn.
SECTION 18 EFFECTIVE DATE: TERM
A. Effective Date. Except for the provisions of Section Q of this Contract relating to
the commencement of certain work following execution of this Contract, as to xvh|oh provisions
this Contract ohm|| be effective immediately after authorization and execution by both Parties
hereto.
B. Term. This Contract mhm|| continue in force and effect for o period of that is
coterminous with the term of the First Amended Water Supply Contract between the Northwest
Water Commission and the Village of Arlington Heights, the Village of Buffalo Grove, the Village
In
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NWC / City approved version October 2014
of Palatine and the Village of Wheeling, dated April 4, 1983 and any subsequent amendments
thereto. Provided, however, that the term of this Contract shall not exceed 20 years in total from
the Effective Date at which time this Contract and the Commission's obligations to provide water
shall terminate, unless otherwise terminated earlier pursuant to the terms of this Contract.
Notwithstanding any other provision contained in this Contract, any right of the City to receive
water from the Commission shall automatically terminate upon the termination of the Agreement
between the Commission and the Member Municipalities.
SECTION 19 TERMINATION BY COMMISSION
A. Notwithstanding any other provision of this Contract, upon the occurrence of any
of the following events, the Commission, in its sole discretion, may terminate this Contract as
provided in this Section 19 for the following reasons:
If the City fails to make any payment required under this Contract on or
before its due date and fails to cure that failure within five business days after demand therefor
from the Commission; or
ii. Termination of the Commission; or
iii. Immediate threat of damage to the Commission Waterworks System or of
danger to public health, unless the Commission, with the assistance of the City as appropriate,
can reasonably and promptly mitigate the threat of damage or danger by engineering,
operational, or other means short of termination of this Contract; or
iv. The Commission's inability to receive water from the City of Evanston.
B. If, within the first ten (10) years following the Delivery Date, the Commission
terminates the Contract for any reason other than the reasons enumerated in Section A above
or through the expiration of this Contract, the Commission shall reimburse the City for its costs
in developing and constructing the City System Connection Facilities in the amounts as follows:
Termination Period Reimbursement Rate
Prior to that date which is one (1) year after 100%
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NWC / City approved version October 2014
the Delivery Date
After that date which is one (1) year after the
90%
Delivery Date but prior to that date which is
two (2) years after the Delivery Date
After that date which is two (2) years after the
80%
Delivery Date but prior to that date which is
three (3) years after the Delivery Date
After that date which is three (3) years after
70%
the Delivery Date but prior to that date which
is four (4) years after the Delivery Date
After that date which is four (4) years after the
60%
Delivery Date but prior to that date which is
five (5) years after the Delivery Date
After that date which is five (5) years after the
50%
Delivery Date but prior to that date which is six
(6) years after the Delivery Date
After that date which is six (6) years after the
40%
Delivery Date but prior to that date which is
seven (7) years after the Delivery Date
After that date which is seven (7) years after
30%
the Delivery Date but prior to that date which
is eight (8) years after the Delivery Date
After that date which is eight (8) years after
20%
the Delivery Date but prior to that date which
is nine (9) years after the Delivery Date
After that date which is nine (9) years after the
10%
Delivery Date but prior to that date which is
ten (10) years after the Delivery Date
After that date which is ten (110) years after the
0%
Delivery Date
SECTION 20 GENERAL
A. Governing Law. This Contract and the rights of the Parties hereunder shall be
interpreted and enforced in accordance with the internal laws, but not the conflicts of laws rules,
of the State of Illinois.
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NVVC/City approved version October 2O14
B. Notices. Unkama expressly provided otherwise hene|n, all notices and other
communications in connection with this Contract shall be in vvriting, and ehmU be deemed
delivered to the addressee thereof when delivered in panemn at the oddnaoo not forth be|ow, or
three business days after deposit thereof in any main or branch United States poet off|oe,
overnight express de|ixery, or mailed by United States registered mail or certified rnai|, postage
prepaid, properly addressed to the Pert|ee, respectively, as follows:
For notices and communications tothe Commission:
Northwest Water Commission
1525NWolf Road
Des Plaines, |L6OO16'1181
Attention: Executive Director
For notices and communications 1oCity:
City ofDes Plaines
1420W1iner Street
Des P|a|naa. |L60016
Attention: City Manager
By notice complying with the foregoing requirements of this Subsection, each Party ahm||
have the right to change the address or addnaaaae, or both, for all future notices and
communications to such Padx, but no notice of change of address shall be effective until
actually received.
C. Calendar Days and Time,. Any reference herein to ''day" or"dayo" shall mean
calendar and not business dovo unless the word "business" is used. If the date for giving of any
notice required to be given hereunder or the performance of any obligation hereunder falls on a
8ctundoy. Sunday or federal ho|iday, then said notice or obligation may be given or performed
on the next business day after such 8o1unday. Sunday or federal holiday. Any reference herein
to time of day ohg|| refer to local time for Des Plaines, Illinois.
D. Entire Agreement. This Contract, including the exhibits heneto, contains the entire
agreement between the Parties hereto with respect tothe transactions contemplated by this
Contract and matters related thereto, and does hereby supersede and render null and void and
33
NWC / City approved version October 2014
of no further force or effect any and all prior agreements, drafts of agreements and
understandings between the Parties.
E. Amendments. This Contract may not be modified or amended except by a written
instrument executed by each of the Parties hereto. No such modification or amendment shall
materially impair or adversely affect the ability or obligation of the City to make payments to the
Commission to meet the Commission's obligations under the Bond Ordinances.
F. Further Action. Each of the Parties hereto agree from time to time to execute and
deliver such further instruments, and to take such further action not inconsistent with the
provisions of this Contract, as may reasonably be necessary in order to fully perform and carry
out the terms and intent hereof.
G. Captions. The headings, titles or captions contained in this Contract 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 Contract or the intent of any provision hereof.
H. Exhibits. Exhibits A through D attached hereto are, by this reference,
incorporated herein. In case of any conflict between an exhibit to the Contract and the text of
this Contract, the text of this Contract shall control. The Parties recognize that Exhibit B is not in
final form as of the date of execution of this Contract. When that Exhibit B is in final and
approved by both Parties, it shall be deemed to be incorporated into this Contract.
I. Changes in Laws. Unless otherwise explicitly provided in this Contract, 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.
J. Time is of the Essence. Time is of the essence in the performance of all terms
and provisions of this Contract.
K. Pending Lawsuits. There are no agreements in effect and no lawsuits pending or,
to the best of either Parties' knowledge, threatened, that would materially and adversely affect
the ability of either Party to fulfill the terms of this Contract.
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NWC / City approved version October 2014
L. Responsible Party. The City shall notify and keep the Commission informed of a
telephone number or numbers at which a responsible individual with knowledge of water
operations for the City can be reached at all times to an emergency. Initially, the City designates
the following telephone number and names: Telephone: (847) 391-5464; Names: Tim Oakley,
Director of Public Works and Engineering and Tim Watkins, Assistant Director of Public Works
and Engineering.
M. Commission Exemptions. The City recognizes that the Commission is a
municipal corporation. Accordingly, the Parties agree that the Commission shall be exempt from
the zoning and permitting authority of the City, but only for facilities and equipment directly
related to the functions of the Commission. Further, for any project performed in furtherance of
this Contract, the Commission shall not be charged any fees or costs.
N. Severability. In the event any part or portion of this Contract, or any provision,
clause, wording or designation contained within this Contract, is held to be invalid by a court of
competent jurisdiction, such part, portion, provision, clause, wording or designation shall be
deemed to be excised from this Contract and the invalidity thereof shall not affect the remainder
of this Contract.
O. Reimbursement of Professional Fees/Costs. The City agrees to reimburse the
Commission for all legal, engineering and other professional fees incurred by the Commission
related to the design, review and approval of all facilities necessary to provide the City with
water pursuant to this Contract. The Parties shall confer regularly to estimate fees, to review
fees that have been incurred and to consider what fees are estimated still to be incurred, and
the Commission will take all reasonable and appropriate steps to avoid excessive fees.
IN WITNESS WHEREOF, the Parties hereto have caused their respective corporate
names to be subscribed hereto and their respective corporate seals to be affixed hereto and
attested by their duly authorized officers, all on the date first shown above.
35
NWC / City approved version October 2014
NORTHWEST WATER COMMISSION, a water commission and unit of local government duly
constituted under the laws of the State of Illinois
By: WI,Lf *% A0A44U/\
Name: —O.A,�JA014 0- &*4NO4
Title: C041A.
ATTEST:
By:
Clerk
CITY OF DES PLAT i, an Illinois ipal corporation
Matthew ogus
ATTEST:
By:
Glorii Ludwig, elty Clerk <3
KR
NVVC/City approved version October 2O14
Exhibit A: City Waterworks System
ExhibitB: Preliminary Plan for the Commission Connection Facilities, City System
Connection Facilities, and the Point ofDelivery
ExhibitC: Cib/'a Pre -Existing Extraterritorial Customers
ExhibitC): Form mfTransferee Assumption Agreement
Kb
IWater a Utility
N
City of Des Plaines
55' .� F
S
0097
`: 13 35 -
1.
Hydrant
System Valve
anyway
Gate
Unknown
Lateral Lino
Abandoned
AaGve
Water Pains
Abandoned
Acive
I
I
I
I
I
I
I
I
I
I
I
I
car of UeR nataca
r
`grmum
I
I
1:14,000
0 2,400 4,800 9.000
Feet
Exhibit B
Preliminary Plan for the Commission Connection Facilities,
City System Connection Facilities, and the Point of Delivery
[SUBJECT TO REVISION WITH APPROVAL OF BOTH PARTIES]
- r-
THIS AGREEMENT is dated as of this — day of 20—, and is made
and entered into by, between and among the NORTHWEST WATER COMMISSION, an Illinois
water oonnnniooion and public corporation organized and existing under the Illinois Constitution
oY197Dand Division 135mfArticle 11 of the Illinois Municipal Code, 65 |LCS5/11-135/1 etmaq.
(2010) "), and the City mfDes PNa|nms, m municipal corporation organized and
existing under the |||ino|o Constitution of 1870 and the Illinois Municipal Code, 05 |LCS 5/1'1-1
etmmq,(2D10(°City")and [NAME AND DESCRIPTION OF ASSUMING ENTITY]'
1. BACKGROUND
A. The Commission and the City have entered into o certain Water
Purchase and Sale Contract dated T 20_ (the "Contract").
B. Subsection 8Fofthe Contract provides that the City may consolidate with
ormerge into any other legal entity, orpermit any other legal entity toconsolidate with mrmerge
into it, or maU or otherwise transfer to another legal entity all or substantially all of its eeaete as
an entirety and thereafter di8go|we. only upon the performance of certain obligations and
compliance with certain naquimamnentm, including, without limitation, providing to the Cmnnnnimm|on
atranofenae eeounlpbon agreement in which the new entity egvaee to accept all the righta,
duiieo, and obligation of the City under the Contract.
C. The City has proposed to [describe proposal] and has provided this
Transferee Assumption to the Commission pursuant to the Contract.
D. The Commission has reviewed the materials provided by the City [and
the assuming entity] pursuant to the Contract and has concluded that the City [and the
assuming entity] have met the obligations andrequirenngntmofthe Contract inconnection with
the proposed [describe proposal].
behalf and on behalf of its successors, assigns, heirs, executors and administrators, hereby
agree, at their sole cost and expense, to comply with all of the terms, requirements and
obligations of the Contract, including all amendments and exhibits thereto.
3. ACKNOWLEDGEMENT AND RELEASE OF CITY The Commission hereby
acknowledges its agreement to the assumption of the obligation to comply with the terms,
requirements and obligations set forth in the Contract, including all amendments, and exhibits
thereto.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
on the date first above written.
ATTEST:
ATTEST:
-2
M
ATTEST: [NAME OF ASSUMING ENTITY]
-0
STATE OF ILLINOIS
SS
COUNTY OF COOK
This instrument was acknowledged before me on . 20—, by
, the Chairman of the NORTHWEST WATER COMMISSION, an Illinois
water commission and body politic and corporate, and by the Clerk of
said Commission.
Signature of Notary
SEAL
My Commission expires:
STATE OF ILLINOIS
SS
COUNTY OF COOK
This instrument was acknowledged before me on T 20_, by
Mayor of the City of Des Plaines], an Illinois municipal corporation, and by
, Secretary of said municipal corporation.
Signature of Notary
SEAL
My Commission expires:
[Acknowledgment for Assuming Entity]