Resolution 2024-45 Resolution No. 2024-45
A RESOLUTION AUTHORIZING THE EXECUTION OF A WATER
PURCHASE AND SALE CONTRACT BETWEEN THE DUPAGE
WATER COMMISSION AND THE UNITED CITY OF YORKVILLE
FOR THE UNITED CITY OF YORKVILLE UNIT SYSTEM
WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City") is a duly
organized and validly existing non-home-rule municipality created in accordance with the
Constitution of the State of Illinois of 1970 and the laws of the State; and
WHEREAS, the DuPage Water Commission, DuPage, Cook, and Will Counties, State of
Illinois (the"Commission"), is a county water commission and public corporation under Division
135 of Article 11 of the Illinois Municipal Code (65 ILCS 5/11-135-1 et seq.), and the Water
Commission Act of 1985 (70 ILCS 3720/1 et seq.) (collectively, the "Acts"); and
WHEREAS,the Constitution of the State of Illinois of 1970,Article VII, Section 10, and
the Intergovernmental Cooperation Act, (5 ILCS 220/1 et seq.), authorize units of local
government to contract or otherwise associate among themselves to obtain or share services and
to exercise, combine, or transfer any power or function in any manner not prohibited by law; and
WHEREAS, the Commission has been organized under the Acts to supply water within
its territorial limits; and
WHEREAS, the Commission owns and maintains a waterworks system as a supplier of
Lake Michigan water to member customers that contract for such service; and
WHEREAS, the City currently owns and operates a municipal drinking water system
served by wells that extract source water from an underground aquifer; and
WHEREAS, the City is within the territorial limits of the Commission; and
Resolution No. 2024-45
Page 1
WHEREAS,the City,together with the Village of Montgomery and the Village of Oswego
(collectively the "WaterLink Communities"), conducted extensive study and concluded that the
most sustainable alternative water source to serve the WaterLink Communities through the
municipal waterworks systems currently serving the WaterLink Communities, as well as any
extensions or improvements of those systems is Lake Michigan water from the Commission; and
WHEREAS, the City has applied for and received from the State of Illinois Department
of Natural Resources, Office of Water Resources, a Lake Michigan water allocation permit for the
Yorkville Unit System; and
WHEREAS, the City is in the process of designing and constructing the conversion of its
waterworks system that will be owned and operated by the City and extended or improved from
time to time to meet the potable water requirements of all residents and businesses to be served
with water from the City; and
WHEREAS, the Commission and the WaterLink Communities have entered into Escrow
Agreements and have been taking steps to finance, study, engineer, design, and construct the
facilities necessary for the WaterLink Communities to receive Lake Michigan water, and the
Commission has been taking steps to study, finance, engineer, design, and construct facilities to
deliver Lake Michigan water to the WaterLink Communities; and
WHEREAS, the City desires that its waterworks system as well as any extensions or
improvements of that system (the "Yorkville Unit System") be served with water from the
Commission as mutually agreed to by the parties and pursuant to the terms of the Water Purchase
and Sale Contract (the "Contract"), attached hereto as Exhibit A; and
WHEREAS, the Commission has entered various water supply contracts with the City of
Resolution No. 2024-45
Page 2
Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the
Commission and its customers (the "Water Supply Contract") and most recently in 2024 and
extends until 2041; and
WHEREAS, at some point during the term of the Contract, the Commission may build
alone or with others a water treatment, distribution, and transmission system to obtain Lake
Michigan water directly from Lake Michigan that will serve the Commission; and
WHEREAS, The Parties deem it to be in their best interests to approve this Water
Purchase and Sale Contract for the Yorkville Unit System.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY,
ILLINOIS, as follows:
Section 1. That the recitals set forth above are incorporated here by reference.
Section 2. That the Mayor and City Council hereby approve the Water Purchase and Sale
Contract with the DuPage Water Commission for the United City of Yorkville Unit System, and
the Mayor and City Clerk are authorized and directed to execute on behalf of the United City of
Yorkville the Water Purchase and Sale Contract for the United City of Yorkville Unit System
substantially in the form attached as "Exhibit A."
Section 3. All Resolutions or parts of Resolutions in conflict with any of the provisions of
this Resolution shall be, and the same hereby repealed to the extent of the conflict.
Section 4. This Resolution and every provision thereof shall be considered severable. If any
section,paragraph, clause or provision of this Resolution is declared by a court of law to be invalid
or unconstitutional, the invalidity or unconstitutionality thereof shall not affect the validity of any
other provisions of this Resolution.
Section 5. This Resolution shall be in full force and effect from and after its passage and
approval in the manner provided by law.
[Remainder Intentionally Left Blank. Roll Call Vote to Follow]
Resolution No. 2024-45
Page 3
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
81h day of October, A.D. 2024.
I Y CLERK
KEN KOCH AYE DAN TRANSIER AYE
ARDEN JOE PLOCHER AYE CRAIG SOLING AYE
CHRIS FUNKHOUSER AYE MATT MAREK AYE
SEAVER TARULIS AYE RUSTY CORNEILS AYE
PPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois
thisvday of Q�� f 1h , A.D. 2024. i
MAYOR
Attest:
Ilk
I Y CLERK
Resolution No.2024-45
Page 4
DUPAGE WATER COMMISSION
WATER PURCHASE AND SALE CONTRACT
Between
The DuPage Water Commission
and
The United City of Yorkville
FOR THE UNITED CITY OF YORKVILLE
October 17, 2024
DUPAGE WATER COMMISSION
WATER PURCHASE AND SALE CONTRACT
WITH THE UNITED CITY OF YORKVILLE
Table of Contents
Page
SECTION 1. PREAMBLES............................................................................................................ 5
SECTION2. DEFINITIONS........................................................................................................... 5
SECTION 3. WATER SUPPLY...................................................................................................... 16
A. Agreement to Sell and Purchase.............................................................................. 16
B. Beginning of Obligations to Deliver and Receive Lake Water............................... 16
C. Limits on Supply ..................................................................................................... 17
D. Emergency or Maintenance Turn-Off..................................................................... 17
E. Curtailment; Emergency Use of Other Sources ...................................................... 18
F. Water Quality .............~........................................................................................... 19
SECTION 4. DELIVERY: STORAGE......................................................................................... 19
A. Yorkville Unit System Connection Facilities.......................................................... 19
B. Storage..................................................................................................................... 20
C. Metering of Shallow Wells...................................................................................... 21
D. Surges and Back-Flows........................................................................................... 21
E. Maintenance of System; Water Quality; Prevention of Waste................................ 22
SECTION 5. MEASURING EQUIPMENT.................................................................................... 22
A. Metering Station and Instrumentation ..................................................................... 22
B. Records.................................................................................................................... 24
C. Calibration ............................................................................................................... 24
D. Check Meters........................................................................................................... 25
E. Meter Malfunctions.................................................................................................. 25
F. Removal of Metering Station and SCADA System Facilities................................. 26
SECTION 6. UNIT OF MEASUREMENT.................................................................................... 27
SECTION 7. PRICES AND TERMS OF PAYMENT................................................................... 27
A. Operation and Maintenance Costs Payment..........................................................1. 27
B. Fixed Costs Payment............................................................................................... 27
C. Connection Facilities Cost Payment................................... ............... 29
D. Capital Cost Recovery Charge Payment.................................................................. 30
E. Underconsumption Costs Payment.......................................................................... 31
Page
F. Default Shares......................................................................................................... 31
G. Bills and Due Date.................................................................................................. 32
H. Disputed Payments.................................................................................................. 32
I. Interest on Overdue Payments................................................................................ 33
J. Security Deposit...................................................................................................... 34
K. Prepayments............................................................................................................ 35
L. Enforcement of Provisions Hereof by Other Customers ........................................ 37
M. Beginning of Obligation to Pay .............................................................................. 37
SECTION 8. SPECIAL CONDITIONS AND COVENANTS ...................................................... 38
A. Construction of the Commission Connection Facilities; No Delay Damages;
Supplyof Lake Waterr............................................................................................. 38
B. Lake Water Only; Costs.......................................................................................... 39
C. Title to Lake Water................................................................................................. 40
D. Emergency Supply.................................................................................................. 40
E. Covenants to Be Set Out in Bond Ordinance.......................................................... 40
F. Payments Hereunder are an Operational Expense of the
Yorkville Unit System ............................................................................................ 40
SECTION 9. ADDITIONAL YORKVILLE COVENANTS......................................................... 41
A. Maintenance of Corporate Existence...................................................................... 41
B. Maintenance and Operation of Yorkville Unit System........................................... 41
C. Rate Covenant......................................................................................................... 42
D. Future Subordination of Obligations ...................................................................... 43
E. General Covenant to Operate Properly................................................................... 43
F. Accounting and Audit............................................................................................. 43
G. Maintain Ownership of Yorkville Unit System...................................................... 44
H. Insurance................................................................................................................. 44
1. Continue to Serve.................................................................................................... 45
J. Maintain Water Allocation ..................................................................................... 45
K. Release and Indemnification................................................................................... 45
L. Combining or Separating System Accounts..................................................I........ 46
M. Rate of Withdrawal................................................................................................. 46
N. Emergency Interconnections................................................................................... 46
SECTION 10. SCHEDULE FOR COMPLETION OF VARIOUS FACILITIES........................ 49
A. Plans and Specifications for Yorkville Unit System Connection
Facilities .................................................................................................................. 49
B. IEPA and Other Approvals for Yorkville Unit System Connection Facilities........ 50
Page C. Commencement o[Construction of Yorkville Unit System
ConnectionFacilities ............................................................................................... 50
D. Intentionally {)nnitted............................................................................................... 50
E. Intentionally Omitted............................................................................................... 50
F. Intentionally Omitted............................................................................................... 50
G. Transfer of Property RLkzbt —_..------------------------- 51
U. Commencement of Construction of Commission Connection Facilities ................ 51
L Delivery o[Water for Start-Up Purposes ................................................................ 51
J. Illustrative Schedule of Events--.....------..--------.------ 52
SECTION | |. ASSIGNABILITY. ................................................................................................. 53
SECTION |2. FORCE K4/\JBURE....... ......................................................................................... 53
SECTION 13. C()h4M\36l(lyV [>EF&L1LTS —.----.----------------.----. 55
SECTION |4. Y[}RKV|[LE OBLIGATION UNCONDITIONAL ---------.._---. 55
SECTION 15. COOPERATION IN CONSTRUCTION; EASEMENTS....................................... 56
SECTION 16. C()OpGRAJ'|OY4 IN ISSUANCE OF B()N[)S.-------..-----.—..--. 57
SECTION l7. REGULAlORY BODIES....................................................................................... 57
SECTION |8. OTHER WATER SUPPLIERS. .............................................................................. 58
SECTION 14' N(}TlCE8: EVIDENCE (}P ACTIONS, WAIVER ............................................... 58
A. Not000.------'—.--.-------------^.------''-----'-- 58
B. Evidence of Actions ................................................................................................ 54
C. Waiver..................................................................................................................... 54
D. Partial Invalidity-----.—.....----------.......—.--------.— 54
SECTION 2O. EFFECTIVE DATE; TERMINATION; PAYMENT OFINTERIM COSTS;
TGRM-----------^.------------..------..—...---.—. 60
A. Effective Date.......................................................................................................... 60
B. Commission Right ioTcnnhnatc ............................................................................. hU
C. Payment of Interim Costs--..--.--..._...—.---..--..--.—.--_—. h|
D. Tcrrn --.—...------.—.---..------...--.^..—.----.----..—. 62
SECTION 2\. GOVERNING LAW AND VENUE........................................................................ 62
SECTION 22. MUNICIPAL BOUNDARIES................................................................................. 62
Page
SECTION 23. MODIFICATIONS OR AMENDMENTS .............................................................. 63
SECTION 24. EXHIBITS INCORPORATED................................................................................ 63
SECTION 25. EXECUTION IN COUNTERPARTS ..................................................................... 63
DUPAGE WATER COMMISSION
WATER PURCHASE AND SALE CONTRACT WITH THE UNITED CITY
OF YORKVILLE
FOR THE UNITED CITY OF YORKVILLE UNIT SYSTEM
This Water Purchase and Sale Contract(**Contract"),dated as of October 17,2024,
by and between the DUPAGE WATER COMMISSION, DuPage, Cook, and Will
Counties, State of Illinois(the"Commission"), a county water commission and public
corporation Linder Division 135 of Article I I of the Illinois Municipal Code, 65 ILCS
5/11-135-1 et seq., and the Water Commission Act of 1985, 70 ILCS 3720/1 et seq.
(collectively, the **Acts-), and the UNITED CITY OF YORKVILLE, Kendall
County, Illinois, a Municipal corporation duly organized and existing under the laws
of the State of Illinois ("Yorkville"),
WITNESSEJH:
WHEREAS, the Commission has been organized under the Acts to supply water
within its territorial limits; and
WHEREAS, the Commission owns and maintains a waterworks system as a
supplier of Lake Michigan water to member customers that contract for such service-,
and
WHEREAS, Yorkville currently owns and operates a municipal drinking water
system served by wells that extract source water from the Ironton-Galesville aquifer;
and
WHEREAS, Yorkville is within the territorial limits of the Commission; and
WHEREAS, Yorkville, together with the Village of Oswego and the Village of
Montgomery (collectively the"WaterLink Communities"),conducted extensive study
United City of Yorkville
Water Purchase and Sale Contract
and concluded that the most sustainable alternative water source to serve the
WaterLink Communities through the municipal waterworks systems currently serving
the WaterLink Communities, as well as any extensions or improvements of those
systems is Lake Michigan water from the Commission; and
WHEREAS, Yorkville (along with the WaterLink Communities) has applied for
and received from the State of Illinois Department of Natural Resources, Office of
Water Resources, a Lake Michigan water allocation permit for the Yorkville Unit
System; and
WHEREAS, Yorkville is in the process of designing and constructing the
conversion of its waterworks system that will be owned and operated by Yorkville and
extended or improved from time to time to meet the potable water requirements of all
residents and businesses to be served with water from Yorkville, which waterworks
system is preliminarily depicted in Exhibit A attached to this Contract; and
WHEREAS, the Commission and the WaterLink Communities have entered into
Escrow Agreements and have been taking steps to finance, study, engineer, design,
and construct the facilities necessary for the WaterLink Communities to receive Lake
Michigan water, and the Commission has been taking steps to study, finance,engineer,
design, and construct the Commission Connection Facilities (as defined herein) to
deliver Lake Michigan water to the WaterLink Communities; and
WHEREAS, contemporaneously with this Agreement, the WaterLink
Communities and the Commission are entering into a WaterLink Project Escrow
Intergovernmental Agreement, an Intergovernmental Agreement with the United City
United City of Yorkville
Water Purchase and Sale Contract
2
of Yorkville Concerning Cunda| Cost Recovery Charge, and an Intergovernmental
&g[ccmucn| Concerning Development of Connection Facilities to lrnp|cmmcrk Water
Service; and
WHEREAS, the Waterl-ink Communities have started Optimal Corrosion Control
Treatment (OCC]) Studies of their water sys1cnoo to be U|cd with the l||iunis
Environmental Protection Agency. The Commission and Yorkville acknowledge that
the ()CC]' Study, including rccnmnmncodudoua for infrastructure irnp,ovenucrts that
may be needed as a result of recommendations for optimized corrosion control
treatment, will not be completed and reviewed by lEP/\ until approximatelyOctober
2025; und
WHEREAS, Yorkville and the Commission recognize that construction may begin
pending the results of the ()CCT Study; and
WHEREAS, Yorkville desires that its waterworks system preliminarily depicted
in Exhibit attached tothis Contract as well amany extensions or innprovsnmcntsof
that system (the-Yorkville Dn{( Bymicnn-) bc served with water from the Commission
beginning sometime in 2O2Uoo mutually agreed toby the parties; and
WHEREAS, the Commission has entered various water supply contracts with the
City nf Chicago topurchase Lake Michigan water sufficient to meet the water supply
needs of the Commission and its customers (the"Water Supply Contract") and most
recently iu2O24 and extends until 2O4|� and
\V8GBLE&S, at some point during the tcmn of this Contract, the Commission may
build alone ncwith others u water treatment, distribution, and transmission system to
United City ofYorkville
Water Purchase and Sale Contract
3
obtain Lake Michigan water directly from Lake Michigan that will serve the
Commission; and
WHEREAS, the Commission has issued and sold and may further propose to issue
and sell Bonds (as defined in Section 2 below) from time to time during the term of
this Contract in sufficient amounts for the payment of the costs of its project of
acquiring,designing,constructing,and maintaining its Waterworks System(as defined
in Section 2 below); and
WHEREAS, such Bonds have been and may be issued in the future from time to
time by the Commission pursuant to Bond Ordinances (as defined in Section 2 below)
adopted by the Commission; and
WHEREAS, pursuant to the Acts, Article VIL Section 10 of the Illinois
Constitution of 1970, the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq.,
and the Public Utilities Act, 220 ILCS 5/1 et seq. as amended, the Commission and
Yorkville are authorized to enter into this Contract; and
WHEREAS, by the execution of this Contract. Yorkville is surrendering none of
its rights to the ownership and operation of the Yorkville Unit System, except as
expressly provided for,and only to the limited extent so provided for,. in this Contract,
and Commission is surrendering none of its rights to the ownership and operation of
its Waterworks System, but each asserts its continued right to operate such systems;
and
WHEREAS, Yorkville recognizes that the Commission may use this Contract as
the basis, in part, for obtaining loans from time to time to be evidenced by the issuance
United City of Yorkville
Water Purchase and Sale Contract
4
of its and for payment of tile principalofand the premium, if any, and interest
on such Bonds; and as dlo nncane for the payment of its nnuin1cnunuc and operating
expenses;and for such purposes oamay be authorized by applicable statutes mrequired
iu any Bond Ordinance adopted by the Commission authorizing issuance ufBonds.-
and
VVU[IREA3, Yorkville recognizes that the Commission may in the future enter into
cnntono(u with other Customers that are rnconbom oformay join the Commission.
NOW, T)TEBLEF(}DE, in consideration o[the Foregoing recitals and of the mmutuu|
covenants and agreements herein contained, the Commission and Yorkville hereby
agree asfollows:
SECTION 1' PREAMBLES.
The pocumnh|cs hereto are hereby incorporated herein by this reference and are made
hm||y a part nf this Contract.
SECTION 2' -
Tile following words and phrases shall have the following meanings when used inthis
Contract.
A. " gregate Ag
Costs" means Operation and Maintenance Costs, Fixed Costs, and
[]nderuoouunmptioo Costs, collectively, as defined herein.
Q. "AlternateDelivery" means the delivery ofLake Water purchased by Yorkville
from the Commission to the Yorkville Unit System through facilities owned by n
Contract Customer(commonly referred to as °VYhcc|ing").
C. ^" "meano the differential amount,if any,that Yorkville pays
United City vrYorkville
Water Purchase and Sale Contract
5
for portion of the increase in size of the primary 48" western pipeline (commencing
at Book Road and 751hStnent and extending vvcn{ of the Fox River to o termination
point at Orchard Road, also known as "TVV 6/25" in the C>VVC naming convention)
from the baseline pipe size to 54". The Commission and Yorkville will mutually agree
in u separate document to be executed prior to the closing of the VVlF|A Loan on the
value of the contribution.
D. -AverageGallons" moconu Total Contract
Customer Revenue divided by Total Contract Customer Use.
E. "Bond ` nncaus all of tile Connnoixsioo^o ordinances and resolutions
Linder which the Commission has or will authorize the issuance of, or issue, Bonds.
P. -Bonds-
G. -CapitalCharge" means the amount necessary. pursuant ioSection
0.02 of the Water Commission Act of 1985 (us added by Public Act 093-0226) und
Conunniueiun Resolution No. K'79-04, entitled ^^/\ Resolution Expressing the Policy of
the DuPuge Water Commission Regarding the New Subsequent Customer Pricing
Mothodo|ogtly^`- to recover `yorkvi||e^s proportionate share of Original Capital Costs
|csa Rebates, vvhcpo Yorkvi||e`a proportionate share of Original Capital Costs |uus
Rebates is that proportion of Original Capital Costs (ems Rebates vvhiub Yndkvi||c,u
Full Water Requirements for 2022 and ZO2] ms reported byYorkville tV the lCPA bsno
to the sumn of the Full Water Requirements orMinimum Take orPay Requirements(as
defined in the Contract Customer C*n1raoU, as applicable, of all of the Commission's
Contract Customers for such two years which the parties agree shall be$0,013,006.00
United City v[Yorkville
Water Purchase and Sale Contract
6
based on the method of calculating such amount illustrated in Exhibit E attached to
this Contract.
Ff. "Charter Customer Facilities"means all of the feeder mains, metering stations,and
pressure adjusting stations constructed as of May 1, 1992. solely for the purpose of
initially connecting the Charter Customers to the Waterworks System.
1. Intentionally Omitted.
J. "Charter Customers" means the units of local government (not including the
Commission) that are parties to the Charter Customer Contract, excluding, however,
any such unit of local government whose rights and obligations under such Contract
have been terminated, including without limitation the United City of Yorkville.
K. "Commission" means the DuPage Water Commission, DuPage, Cook, and Will
Counties, State of Illinois.
L. "Commission Connection Facilities" means the portions of the Waterworks
System constructed by the Commission to initially connect the WaterLink
Communities including the Yorkville Unit System to the existing Waterworks System,
which facilities are depicted in the preliminary plans attached as Exhibit B-2 to this
Contract,as such facilities may be relocated, replaced,extended,or improved and may
be used in the service of other customers from time to time. The Commission
Connection Facilities include, among other items, metering station(s), including
pipelines and equipment appurtenant thereto, and SCADA System facilities
attributable to the Yorkville Unit System, including equipment appurtenant thereto.
M. "Connection Facilities' means the Yorkville Unit System Connection Facilities
United City of Yorkville
Water Purchase and Sale Contract
7
and the Commission Connection Facilities.
N. ' Cost" means the full actual cost incurred by the
Commission in connection with (i) the design, bidding, contracting, managing, and
uck/o| construction, installation, removal, cuk)oadon, ,cp|uoemcnL extennion" or
improvement of the Connection Facilities, including without limitation equipment
required fortheoperation ofthe Connection Facilitiesand all administrative,financing
supervisory, inspection. engineering, survcying, and |cgu| [cos, costs, and expenses
associated therewith-, (ii) the acquisition and divestment of lands, easements, and
rights of way over lands and waters necessary for the construction, installation,
removal, relocation, replacement, eutcnsion, or improvement of the Connection
Facilities, and all administrative, title, surveying. and legal fees, costs, and expenses
associated therewith: and (iii) the review and processing of plans and agreements for
the construction, inmta||o1ioo, removal, rc|ocu1ion, rcp|ucconnn\, extension, or
improvement of the Connection Facilities and in connection with the negotiation,
preparation, consideration, and review of this Contract, including without limitation
all |ogu|, engineering, consu|ting, and administrative fees, costs, and expenses
associated ibc,ovvitb; except as any of the above are included in Operation and
Maintenance Costs.
{). "Contract" Water Purchase and Sale Contract.
P. ^ nneuuy the Water Purchase and Sale Contract
between the Commission and the Contract Customers dated asofJanuary 10, 2024.
O. -Contract Customers" collectively means the Contract Customers, Yorkville, and
United Cityol'v^m,i))v
Water Purchase and Sale Contract
8
any other entity With Whom the Commission has entered into.or may in the future enter
into, a contract or agreement for the sale by the Commission of Lake Water to that
entity,except only contracts and agreements providing for the delivery of Lake Water
during times of emergency only.
R. '`Days" means calendar days.
S. "Determination Date" means the last day of December immediately preceding the
Interest Period for Which the Earned Interest Rate pursuant to this Contract is being
calculated, but the effective date of any change in the Earned Interest Rate shall, for
Purposes hereof, be the first day of May following such Determination Date.
T. "Earned Interest Rate" means, with respect to each Interest Period under this
Contract, the highest monthly average yield to maturity interest rate earned by the
Commission (total funds) as reported monthly on the Commission's Schedule of
Investments for the immediate preceding fiscal year(May I —April 30)as determined
by the Commission, which determination shall be conclusive and binding upon
Yorkville absent manifest error, but the effective date of any change in the Earned
Interest Rate shall, for purposes hereof, be the first day of May following such
Determination Date.
U. "Fiscal Year" means the fiscal year of the Commission.
V. "Fixed Costs" means an amount sufficient at all times to pay the principal of and
the premium, if any, and interest on any Revenue Bonds, to provide reserves required
therefor, to provide an adequate depreciation fund for the Waterworks System, to
comply with the covenants of all Revenue Bond Ordinances, and to pay reasonable
United Cite of Yorkville
Water Purchase and Sale Contract
9
capital costs necessary to carry out the corporate purposes and powers of the
Commission, except us any of the above are included in Operation and K1aiotcnaooc
Costs.
W. -FullRequirements * nneonm, U\ as it applies to uo|ou|odng YockviUe`s
Capital Cost Recovery Charge. the amount of vvutc, ncocsxu,y to nmco\ the potable
water requirements ofall ibcn curn:n( cusk`nuco served by thr Yorkville Unit Sydrnn
at the timnc ~/orkvi||c`u Capital Cost Recovery Charge is being calculated. (ii) as it
applies to the Yorkville Unit System for all other purposes of this Contract,the amount
of water necessary from time to time to meet the potable water requirements ofall ibcn
current customers served by the Yorkville Unit System, and (iii) os ii applies toother
Contract Customers of the Commission, such Contract Customers* fu|| vvu1cr
requirements as defined in their respective contracts with the Commission.
X. "Anterest Period" means (i) initially, the period commencing oil the first date on
which Yorkville first becomes obligated to make payments under Subsection 7.Dof
this Contract and ending on the next succeeding first day of May and (ii) thco:uftcr,
each period commencing outhe last day nfthe next preceding Interest Period and
ending onthe nest succeeding first day ofMay; provided, however, that any Interest
Period that otherwise extends beyond May |, 2058, shall end no February 24, 2064.
Y. -LakeWater" means potable, filtered water drawn from Luke Michigan.
Z. -OperationCosts" means amounts payable bv the Commission
under tile Water Supply Contract, except Undercousuonp{inn Costs, and all cspoosey
incurred in the administration, operation, and maintenance ufthe Waterworks System
United City o[Yorkville
Water Purchase and Sale Contract
and the accumulation of reserves related to payment of said costs. Operation and
Maintenance Costs in any month shall be at least equal to the amount required to be
deposited by the Commission in that month into the operation and maintenance funds
or accounts created under all Revenue Bond Ordinances.
AA. -Original Capital Costs" means all costs paid by the Commission for property
owned by the Commission, as of April 30, 2024, without reduction for depreciation,
including actual costs of construction, engineering, and capitalized interest on assets
in service and under construction but excluding the cost of constructing the Charter
Customer Facilities and financing costs other than interest capitalized in accordance
with Generally Accepted Accounting Principles.
BB. "Original Revenue Bonds" means the Series 1987 Revenue Bonds, originally
issued in the amount of $200,000,000 pursuant to Ordinance No. 0-1-87 adopted
January 15, 1987, and the Series 1993 Water Refunding Revenue Bonds, originally
issued in the amount of$182,755,000 pursuant to Ordinance No. 0-8-93 adopted April
8, 1993, and any other Revenue Bonds that may in the future be issued to refund or
refinance all or any portion of the indebtedness represented by said Series 1987, 1993,
2003, and 2013 Revenue Bonds. As of the date of this Contract, all of the Original
Revenue Bonds are fully paid and retired.
CC. "Yorkville"means the United City of Yorkville, located in Kendall County, State
of Illinois.
DD. "Yorkville's Base Rate" means a water rate stated as dollars or cents per 1,000
gallons that is calculated by (i) the sum of all Operation and Maintenance Cost
payments, all Fixed Costs payments, all Connection Facilities Cost payments, and all
United City of Yorks=ille
Water Purchase and Sale Contract
11
Capital Cost Recovery Charge payments under the Contract Customer Contract
estimated to be made by Yorkville pursuant to this Contract in the Fiscal Year for
which Yorkville's Base Rate pursuant to this Contract is being calculated and (ii)
dividing the resulting amount by the total amount of Lake Water, stated in 1,000 gallon
units, estimated to be delivered to Yorkville in said Fiscal Year.
EE. -Yorkville Unit System" means the waterworks system described in Exhibit A
attached to this Contract as well as any extensions or improvements of that system
acquired by Yorkville and used for the purpose of providing and transmitting water to
its customers.
FF. "Yorkville Unit System Connection Facilities" means those portions of the
Yorkville Unit System, lying downstream from the Point of Delivery,to be constructed
pursuant to this Contract by Yorkville at its expense to initially connect the Yorkville
Unit System to the Waterworks System,which facilities are depicted in the preliminary
plans attached as Exhibit B-1 to this Contract, as such facilities may be relocated,
replaced, extended, or improved from time to time. The Yorkville Unit System
Connection Facilities include, among other items, the pressure adjusting station(s)
described in Subsection 4.A of this Contract and pipeline and equipment appurtenant
thereto.
GG. "Other Bond Ordinances" means all of the Commission's ordinances and
resolutions under which the Commission has or may authorize the issuance of,or issue,
Other Bonds.
HH. "Other Bonds" means all of the Commission's debt obligations that are not
United City of Yorkville
Water Purchase and Sale Contract
12
Revenue Bonds, whether in the form of bonds, notes. or other evidence of
indebtedness, in whatever original principal amount,together with any such additional
non-revenue obligations authorized by statute to be issued by the Commission from
time to time and refunding obligations issued to refund other such obligations.
11. -Point(s) of Delivery" means the point(s) at which the Lake Water delivered to
Yorkville pursuant to this Contract leaves the Commission's Waterworks System and
enters the Yorkville Unit System. A Point of Delivery shall be a point in the water
main connecting the Commission's metering station(s) to Yorkville's pressure
adjusting station(s) located downstream from the inside face of the outside wall or
foundation of the Commission's metering station(s)a distance of 10 feet or where such
water main enters the outside face of the outside wall or foundation of Yorkville's
pressure adjusting station(s), whichever is closer to the Commission's metering
station(s).
JJ. "Prime Rate" means the base corporate rate of interest then most recently
announced by the largest commercial bank, measured in terms of total assets, located
and doing banking business in the State of Illinois, which rate may or may not be said
bank's lowest rate of interest charged by said bank for extensions of credit to debtors.
The effective date of any change in the Prime Rate shall, for purposes hereof, be the
effective date stated in the public announcement of said bank.
KK. "Rebates" means rebates formally declared as such by Commission Resolution
as of the month prior to the month in which Yorkville first becomes obligated to make
payments under Subsection 7.13 of this Contract. As of the date of this Contract, the
United City of Yorkville
Water Purchase and Sale Contract
13
Commission has tIbnnaUy declared $|06,326,287.0O in Rebates pursuant io Resolution
Nos. R-\9-94, N-2|-A5, R,|5-96. Q-24-97, R-|d-g8 and R-28-07.
LL ^ Ordinances" means all of the Commission's resolutions under
which the Commission has or will authorize the issuance of. or issue, Revenue Bonds.
MM. RevenueBonds"means all of the Commission's debt obligations, including the
Original Revenue Bonds, that are payable from the revenues of the Waterworks
8ystcnn~ whether in the fh,ro of bonds, notes, or other evidence of indebtedness, in
whatever original principal unmounL together with any such additional revenue
obligations authorized by statute to be issued by the Commission from time to time
and refunding revenue obligations issued to refund other Such obligations.
NN. SCADASystem" nncansthe Supervisory Control and Data Acquisition 3yoicnn
o[the Commission that provides on integrated control, communication, and security
system for the Waterworks Systemn, including data processing, mounugcmoeuL transfer,
and exchange;central operation;system control and monitoring,and operator-machine
interfacing.
()(). "Trustee"
PP. ^ ^ means, for any given year, u C0uicuct Customer of the
Commission that takes |cxo Lake Water in such year than such Contract Cus1orner^s
Water Allocation times 365 times the Underconsumption Ratio for Such year.
[>(>. ^ ` means the amount by which the acnountofLake VVutur
actually taken by u Contract Customer of the Commission is |eau than the
Underconsumption Ratio times such Contract Customer's Water Allocation times 365.
RR. "Underconsumption Costs" means any amount that the Commission is obligated
United City vfYorkville
Water Purchase and Sale Contract
to pay under the Water Supply Contract solely by reason of failure to accept delivery
of the minimum quantity of Lake Water that the Commission is obligated to purchase
under the Water Supply Conti-act.
SS. Underconsumption Ratio" means, for any given year, (i) the minimum amount
of Lake Water required to be taken by the Commission under the Water Supply
Contract divided by (ii)the sum of the Water Allocations of all Contract Customers of
the Commission times 365.
TT. "Water Allocation"' means, as it applies to other Conti-act Customers of the
Commission, such Contract Customers' water allocation as defined in their respective
contracts with the Commission, and, as it applies to Yorkville. the sum of Yorkville's
allocations and allowable excesses from time to time of Lake Water for the Yorkville
Unit System pursuant to the Level of Lake Michigan Act, as amended from time to
time(See State of Illinois Department of Transportation, Division of Water Resources
Decision on 1989 Allocation Review, Order No. LMO 89-2 and subsequent orders of
the State of Illinois Department of Transportation, Division of Water Resources,or the
successor to its responsibilities, the State of Illinois Department of Natural Resources,
Office of Water Resources); and such other amounts of Lake Water as Yorkville may
lawfully take for the Yorkville Unit System. At any time when the Full Water
Requirements of the Yorkville Unit System shall exceed the Water Allocation for the
Yorkville Unit System, then "Water Allocation" shall mean the Full Water
Requirements of the Yorkville Unit System for all purposes of this Contract.
UU. "Water Supply Contract"means the water supply contract,dated March 19, 1984,
United City of Yorkville
Water Purchase and Sale Contract
15
between the Commission and the City nfCbico�n, U|inois,as amended,supplemented,
or extended fromn time to time, or any alternative water supply agreement, and most
recently io2O24 and extends until 204|.
\/V. -WaterworksSystem" ulcuns all the Commission's facilities, including land;
cusunocntx; rights-of-way over lands and vvutc,m; Pumping facilities, storage facilities,
metering stations. and other facilities. mains; and pipelines acquired and used for the
purposes of providing and transmitting Lake VVu1c, from the Lake Michigan vvutcr
supply system to the Commission's customers.The Yorkville Unit System Connection
Facilities are not part o[the Waterworks System.
SECTION 3. WATER SUPPLY.
A. Agreement to Sell and Purchase. Subject\o the provisions of this Contract.
the Commission shall sc|| to `ymrkvi||o and l/n[kvi||e shall purchase from the
Commission an annouoi of Lake VVuicr necessary from time to time to serve the
Yorkville Unit 8yutcmn`s Full Water Requirements. The Conlnniouion`a obligation to
Yorkville to deliver Lake Water hereunder shall be limited, however, to maximum
annual amount equal to `/o,kvi!|c`o then current Water Allocation times 365 and to
maximum nub: of Lake VVotcr to the Yorkville Unit System in any one hour equal to
1.7 times Yn,kvi|lc,o then current Water Allocation divided by 24.
B. Beginning of Obligations to Deliver and Receive Lake Water. Unless this
Contract is sooner terminated by the Commission pursuant to Subsection 20.0 of this
Contract, the Commission sbo|| be obligated to deliver Lake Water to the Yorkville
Unit System and Yorkville shall be obligated tn receive ui the Yorkville Unit System
Lake Water delivered by the Commission immediately after completion of
United City o[Yorkville
Water Purchase and Sale Contract
16
construction of the Connection Facilities and the water storage capacity required
pursuant to Subsection 4.13 of this Contract; provided, however, that Yorkville shall
have the right to receive Lake Water pursuant to this Contract prior to the completion
of construction of the required storage capacity if such storage capacity has been
substantially completed to the point where it is capable of serving its intended function
or would be capable of serving its intended function except for the fact that painting or
other finishing and restoration work are not complete.
C. Limits on Supply. The Commission shall use its best efforts to furnish Lake
Water to Yorkville as hereinabove provided, but Yorkville acknowledges and agrees
that the Commission's obligation hereunder is limited by:
(i) The amount of Lake Water from time to time available to the
Commission; and
(ii) Provisions in contracts between the Commission and its
Contract Customers and other customers related to curtailment and
other limits on the supply of Lake Water; and
(iii) The capacity of the Waterworks System; and
(iv) Ordinary transmission loss, including standard metering
error, between the Commission's source of supply and the Point of
Delivery to the Yorkville Unit System; and
(v) The other provisions of this Contract, including but not
limited to Section 20.
D. Emergency or Maintenance Turn-Off. The Commission undertakes to use
reasonable care and diligence to provide a constant supply of Lake Water as herein
provided for but reserves the right at any time to turn off the flow of Lake Water in its
mains for emergency and maintenance purposes. The Commission shall give notice
not less than 48 hours in advance of any turn-off for maintenance purposes and it shall
United City of Yorkville
Water Purchase and Sale Contract
17
give such notice as is reasonable under the particular circumstances of any turn-off for
emergency purposes.
E. Curtailment. Emergency Use of Other Sources. If it becomes necessary for
the Commission to limit its delivery of Lake Water to its customers for any reason,
Yorkville shall be entitled, to the extent possible, to receive during such period of
curtailment a pro rasa share of available Lake Water as determined by the ratio of(i)
the Yorkville Unit System°s total Lake Water use during the prior Fiscal Year for other
than start-up purposes pursuant to Subsection 10.1 of this Contract to (ii) the sum of
Lake Water use during the prior Fiscal Year of all of the Commission's customers
entitled to Lake Water during such period of curtailment. Prior to the Commission's
delivery of Lake Water to the Yorkville Unit System for a full Fiscal Year for other
than start-up purposes pursuant to Subsection 10.1 of this Contract, Yorkville shall be
entitled, to the extent possible, to receive during such period Of curtailment a pro rata
share of available Lake Water as determined by the ratio of the Yorkville Unit
Systems Full Water Requirements during the prior Fiscal Year to the sum of Lake
Water use during the prior Fiscal Year of all of the Commission's other customers
entitled to Lake Water during such period of curtailment and (ii) the Yorkville Unit
System's Full Water Requirements during the prior Fiscal Year. Yorkville, in cases of
emergency or when the Commission for whatever reason is unable to meet the
Yorkville Unit System's Full Water Requirements, may, subject to the terms,
conditions, and limitations set forth in Subsection 9.N of this Contract, serve its
customers from any source;provided,however,that Yorkville shall continue to pay all
United City of Yorkville
Water Purchase and Sale Contract
18
amounts due to the Commission hereunder during such period as if the Yorkville Unit
System were receiving its Full Water Requirements from the Commission.
F. Water Quality. The Commission shall supply Yorkville with Lake Water
of a quality commensurate to that furnished to the Commission's other Contract
Customers, and meeting the requirements of any federal, State of Illinois, or local
agency as shall have jurisdiction from time to time for the operation of public water
supplies such as the Waterworks System. The Commission bears no responsibility for
the contamination of Lake Water or deterioration of water quality occurring beyond
the Points of Delivery to the Yorkville Unit System.
SECTION 4. DELIVERY, STORAGE.
A. Yorkville Unit System Connection Facilities. Yorkville shall receive its
supply of Lake Water at the Yorkville Unit System Points of Delivery at pressures that
will vary from time to time. Yorkville, at its own expense and pursuant to the schedule
established in Section 10 of this Contract, shall site, design, construct, operate,
maintain, and when necessary, replace the Yorkville Unit System Connection
Facilities, including a pressure adjusting station immediately downstream from the
Points of Delivery. Initial design and construction plans and specifications for the
Yorkville Unit System Connection Facilities, and any future modifications thereof,
shall be submitted in advance of construction or modification to the Commission for
review and approval, which approval shall not be unreasonably withheld. In the event
the Yorkville Unit System or the Yorkville Unit System Connection Facilities are to
be relocated, replaced, extended, or improved at the request of the Commission, its
United City of Yorkville
Water Purchase and Sale Contract
19
successor, other than those circumstances where the Commission is compelled to
relocate the Yorkville Unit System or the Yorkville Unit System Connection Facilities
for a non-Commission conflicting public infrastructure project or by State or Federal
mandate, Yorkville will be entitled to reasonable and fair market value recovery for all
costs without reduction for depreciation including actual costs of construction,
engineering, and capitalized interest on assets in service and under construction and
financing costs other than interest capitalized in accordance with Generally Accepted
Accounting Principles.
B. Storage. Yorkville shall provide sufficient storage capacity within the
Yorkville Unit System to store not less than two times the annual average daily water
demand of the Yorkville Unit System, provided, however, that said requirement shall
be reduced by (i) the amount of operable shallow well capacity (stated in gallons per
hour) maintained by Yorkville in the Yorkville Unit System up to a maximum of 10
percent (10%) of said requirement plus (ii) an amount equal to the storage capacity
maintained by the Commission in its Waterworks System multiplied by a fraction, the
numerator of which is the annual average daily water demand of the Yorkville Unit
System and the denominator of which is the total annual average daily water demands
of all Contract Customers. The calculation of said water storage capacity requirement
for the Yorkville Unit System is provided in Exhibit C attached to this Contract. In
accordance with said requirement, Yorkville, at its own expense and pursuant to the
schedule established in Section 10 of this Contract, shall construct for the Yorkville
Unit System at least the amount of water storage capacity shown on Exhibit C to this
Contract as the"Minimum Additional Required Storage." Such water storage capacity
United City of Yorkville
Water Purchase and Sale Contract
20
shall be in addition to the amount of water storage capacity shown on Exhibit C to this
Contract as the "Existing Storage" in the Yorkville Unit System. Yorkville shall
properly maintain all such water storage capacity, including operable shallow well
capacity, in good and serviceable condition. If at any time Yorkville's water storage
capacity in the Yorkville Unit System, including its allowances for operable shallow
well capacity and Commission storage capacity as provided above, falls below 1.9
times the annual average daily water demand of the Yorkville Unit System, then
Yorkville, within 24 months after such level of deficiency is reached, shall construct
additional water storage capacity within the Yorkville Unit System of sufficient
quantity to increase the total storage capacity of the Yorkville Unit System, including
its allowances for operable shallow well capacity and Commission storage capacity as
provided above, to not less than two times the annual average daily water demand of
the Yorkville Unit System.
C. Metering of Shallow Wells. Yorkville shall furnish, install, and maintain a
meter on each of its operable shallow wells. All such meters shall be of standard make
and shall be subject to inspection and examination by any employee or agent of the
Commission at all reasonable times. Yorkville shall calibrate all such meters at least
once in each Fiscal Year. Yorkville shall notify the Commission of the time, date, and
place of each calibration at least five days in advance thereof, and a representative of
the Commission shall have the right to observe any adjustments made to such meters
in case any adjustments shall be necessary. The Commission shall have the right to
place any or all of such meters under seal at any time.
D. Surges and Back-Flows. Yorkville's operation of its pressure adjusting
United City ol'Yorkville
Water Purchase and Sale Contract
21
station shall not cause surges or back-flows into the Waterworks System, nor shall the
operation of the Yorkville's pressure adjusting station cause the Waterworks System
pressure to drop below 20 pounds per square inch. The Commission shall not be
responsible for any damage to the Yorkville Unit System or the Yorkville Unit System
Connection Facilities caused by the design, operation, or maintenance of the
Connection Facilities.
F. Maintenance of System; Water Quality; Prevention of Waste. Yorkville
shall operate the Yorkville Unit System and the Yorkville Unit System Connection
Facilities in such a manner as at no time to place the Commission and the Waterworks
System in jeopardy of failing to meet the regulations of any agency or governmental
authority having jurisdiction over the Commission's operation of its Waterworks
System. The Commission and Yorkville shall notify each other immediately of all
emergency and other conditions which may directly or indirectly affect the
Waterworks System, the Yorkville Unit System, the Connection Facilities, or the
quantity or quality of the Lake Water received pursuant to this Contract.
SECTION 5. MEASURING EQUIPMENT.
A. Metering Station and Instrumentation. The Commission shall, pursuant to
the timetable established in Section 10 of this Contract, furnish,and install at the Points
of Delivery a metering station containing the necessary equipment and devices of a
type meeting the standards of the American Water Works Association for measuring
properly the quantity of Lake Water delivered under this Contract, including all
structures as the Commission shall deem necessary to house such equipment and
United City of Yorkville
Water Purchase and Sale Contract
22
devices. Such furnishing and installing of a metering station shall be done in substantial
conformance with the preliminary plans therefor attached as Exhibit B-2 to this
Contract, as such preliminary plans may be revised by mutual agreement of the
Commission and Yorkville.The Commission shall own,operate,maintain,and replace
such metering station and all equipment and structures related thereto.
The metering station shall be located at a site or sites selected and acquired by
Yorkville, and title transferred to the Commission, free and clear of all liens, claims,
encumbrances, and restrictions unless otherwise approved by the Commission in
writing. Yorkville shall be responsible for maintaining the grounds and landscaping,
including but not limited to shrubbery and other plantings, located on each site
provided. Such sites shall be subject to reasonable review and approval of the
Commission, without charge to the Commission and pursuant to the timetable
established in Section 10 of this Contract, shall grant to the Commission all necessary
and insured easements for such site(s)and access thereto to the reasonable satisfaction
of the Commission in a form similar to that attached as Exhibit D to this Contract and
satisfactory to the Commission's attorneys. Yorkville also shall grant to the
Commission all necessary and insured easements for the appropriate location and
installation of antennas and appurtenant facilities for the Commission's SCADA
System attributable to the Yorkville Unit System on property owned by Yorkville or
on property lying within the corporate limits of Yorkville, free and clear of all liens,
claims, encumbrances, and restrictions unless otherwise approved by the Commission
in writing. Such SCADA System antennas or facilities shall be installed on such
United City of Yorkville
Water Purchase and sale Contract
23
cuseroon(s in o manner that will reduce xn far as reasonably possible any interference
with the telemetry nFthe Yorkville Unit System.
Yorkville ohui| have access to the metering station for examination and inspection at
rcouonuh|c dnnes` but the reading for billing purposes, cu!ibnution, and adjustment of
ihc equipment ihcvoio shall be done only by the enop|oYecm or agents of the
Commission.
B. Records. For the purpose nf this Controc1, the official record o[readings
of each meter at the nnmtcriu8 station sbu|| be the journal o, other record book of the
Cmnrnimaiwu in its office in `mhiub the records of the employees or agents of the
Commission who take the readings are or may be transcribed. Upon written request of
Yorkville, the Commission will give Yorkville a copy of such journal or record book,
or permit Yorkville to have access thereto in the office of the Commission during
regular business hours.
C. Calibration. At least once in each Fi000| Year, the Commission ohu||
calibrate its meters dedicated to nmcuuudog the Lake Water delivered to the Yorkville
Unit System, in the presence nfa representative of Yorkville,and the Commission and
Yorkville shall jointly observe any adjustments that are made butile meters in case any
adjustments shall be necessary. If any check meters have been installed, then such
check meters shall be calibrated a1 least once in each Fiaou| Year by Yorkville in the
presence of representative of the Commission, and the Cou`rnionioo and Yorkville
shall jointly observe any »6iuutoneoiu that are made to the meters in case any
adjustments shall be necessary.
United City vfYorkville
Water Purchase and Sale Contract
24
D. Check Meters. Yorkville,at its option and its own expense,may install and
operate a check meter to check each meter installed by the Commission, but the
measurement of Lake Water for purposes of this Contract shall be solely by the
Commission's meters, except in the cases hereinafter specifically provided to the
contrary. All check meters shall be of standard make and shall be subject to inspection
and examination by any employee or agent of the Commission at all reasonable times.
The calibration and adjustment of check meters shall be made only by Yorkville,
except during any period when a check meter may be used under the provisions
hereunder for measuring the amount of Lake Water delivered to Yorkville, in which
case the calibration and adjustment of such check meter shall be made by the
Commission with like effects as if such check meter had been furnished and installed
by the Commission.
L . Meter Malfunctions. If the Commission or Yorkville at any time observes
a variation between a meter and a check meter or any evidence of meter malfunction,
such party shall promptly notify the other party, and the Commission and Yorkville
shall then cooperate to procure an immediate calibration test and such adjustment,
replacement, or other work necessary to return such meter to accuracy. The party who
discovers such variation or malfunction shall give the other party written notice not
less than 48 hours prior to the time of any test of any meter (which tests shall be
conducted during normal working hours)so that the other party may conveniently have
a representative present. If such representative is not present after the required
notification at the time set in such notice, calibration and adjustment may proceed in
United City of Yorkville
Water Purchase and Sale Contract
25
the absence of said representative notwithstanding any other provision of this
8ubscctimn5.E. /f the percentage of inaccuracy of any meter ia found 0mbeinexcess
of two percent,registration thereof shall be corrected by agreement of the Commission
and Yorkville based upon the best data available, for uperiod extending back to the
time when nuch inaccuracy began if such time is ascertainable, or for a period
extending back one-half o[tile time elapsed since the last date of calibration (but in no
event further back than a period of six months) if such time is not ascertainable.
If for any reason any Meter is Out of service or out of repair so that the amount of Lake
Water delivered cannot be ascertained or Computed from the reading thereof, then the
[ukc Water delivered during the period such onete, iy out o[service or Out of repair
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 nncte, has been installed or the
check meter imregistering inaccurately, oho|| be estimated:
(i) By correcting the error if the percentage of the error is
ascertainable by or
-'
(ii) If the error is not ascertainable by calibration tests or
000the000iica| calculation, by estimating the quantity of delivery by
considering deliveries during preceding periods under similar
conditions when the ooe1or or meters were registering accurately,
adjusted for the addition of new customers to tile Yorkville Unit
System.
F. Removal of Metering Station and SCADA System Facilities. Within ninety
(40) days uMcr the termination of this Contract (absent u failure to renew), the
Commission,at its own expense and in its discretion, may remove the metering station,
including equipment,and the SCADA System antennas and appurtenant facilities from
the property of Yorkville and release the perpetual easement therein. If the
United City o[Yorkville
Water Purchase and Sale Contract
26
Commission fails to remove such station, equipment, and facilities, as aforesaid,
Yorkville may take title to such station, equipment, and facilities.
SECTION 6. UNIT OF MEASUREMENT.
Tile unit of measurement for Lake Water delivered hereunder shall be gallons of water,
U.S. Standard Liquid Measure, and all measuring devices shall be so calibrated unless
the Commission and Yorkville otherwise agree. 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.
SECTION 7. PRICES ANll TERMS OF PAYMENT.
A. Operation and Maintenance Costs Payment. Yorkville shall pay monthly
to the Commission, at the time specified in Subsections 7.G and 7.M below, a share of
the Commission's Operation and Maintenance Costs for each month, which shall be
an amount equal to the then current price per 1,000 gallons for Operation and
Maintenance Costs times the quantity of Lake Water divided by 1,000 delivered by the
Waterworks System to the Yorkville Unit System for such month. At any time after
the commencement of Lake Water delivery, no Lake Water is being supplied through
the Waterworks System to any Contract Customer, Yorkville's share of monthly
Operation and Maintenance Costs for the Yorkville Unit System shall be that
proportion of those costs which the Yorkville Unit System's Water Allocation bears to
the total Water Allocations of all of the Commission's customers required to make
Operation and Maintenance Costs payments during the same period.
B. Fixed Costs Payment. Subject to the single limitation on its obligation to
United City of Yorkville
Water Purchase and Sale Contract
27
pay Fixed Costs set forth in this Subsection 7.0, Yorkville shall pay monthly kzthe
Commission, uo the time specified in Subsections 7.G and TM below, one-twelfth of
the Yorkville Unit System's share of Fixed Costs for each Fiscal Year. However, as of
the dote of this Contract, the Fixed Costs are $0 per month. For the purposes of this
Conti-act, tbc Yorkville Unit Syytcmn`o share of Fixed Costs for each [iyou| Year mhu||
be that proportion of Fixed Costs which the `/nrkvi||t Unit Systcom`n Full VVuicr
Koquio:nnmn1u for the two preceding calendar years prior to such Fiscal Year bears to
thc eunm of the Full Water Requirements or Minimum Take orPay Requirements, as
applicable, of all of the Connnninoion`o Contract Cuoionncm for such two preceding
calendar years who are not relieved from Fixed Costs payments pursuant io the terms
of their contracts. prior to the Cononnisaiou`n delivery of Lake VVutc,to the Yorkville
Unit System for two calendar years for other than start-up purposes pursuant to
Subsection 10.1 of this Contract.the Yorkville Unit System's share of Fixed Costs shall
he that portion of Fixed Costs which the `yVrk*i|1n Unit Syotenn`o VVutrr /\|\Vco1ion
bears to the total Water Allocations or the Full Water Requirements or Minimum Take
o, Pay Requirements, whichever is then applicable, of all of the Commission's
Contract Customers who are not relieved from Fixed Costs payments pursuant tothe
tcoua of their contracts. Subject to the following single limitation, Yockvi||c^s
obligation to make all payments of Fixed Costs as required hereunder is unconditional
and irrevocable, payable without setoff nrcounterclaim, and irrespective ofwhether
Lake VVa1e, is ever fbrninhmd, made available, or delivered to the `yockvi||c Unit
System, or whether the Waterworks System is completed, operable, or operating, and
notwithstanding suaponsion` interruption, interference, reduction,or curtailment of the
United Citv,vfYorkville
Water Purchase and Sale Contract
28
supply of Lake Water. Yorkville's obligation to pay Fixed Costs hereunder is subject
to the single limitation that, if for any period of time, and only during such period of
time, the Commission is in fact supplying the Full Water Requirements or Minimum
Take or Pay Requirements, as applicable, to Contract Customers of the Commission,
other than Yorkville, whose Full Water Requirements and Minimum Take or Pay
Requirements are more than 85 percent of the sum of the Full Water Requirements or
Minimum Take or Pay Requirements, as applicable, of all Contract Customers of the
Commission, and during such time the Commission is unable to supply any Lake
Water to the Yorkville Unit System, then Yorkville shall have no obligation to pay
Fixed Costs for the Yorkville Unit System. However, as of the date of this Contract,
the Capital Recovery Cost Credit is $0 because Fixed Costs are currently $0.
C. Connection Facilities Cost Payment. Yorkville shall pay to the
Commission its share of the Connection Facilities Cost in accordance with the
WaterLink Communities Intergovernmental Cost Share Agreement,wherein Yorkville
commits and agrees to pay 40.22% of the total Connection Facilities Cost. The
Commission is not a party to the WaterLink Communities' Intergovernmental Cost-
Share Agreement and has no responsibility or liability as to any true-up or adjusted
accounting between the WaterLink Communities. Contemporaneously and pursuant
to this Contract, Yorkville and the Commission shall enter into an WaterLink Project
Escrow Intergovernmental Agreement with the United City of Yorkville(the"Escrow
IGA") substantially in the form attached hereto as Exhibit G. In the event a line of
credit issued by the Commission to Yorkville and any of the WaterLink Communities
for Connection Facilities Costs the total line of credit amount provided to the
United City of Yorkville
Water Purchase and Sale Contract
29
Waterl-ink Communities shall not exceed Twenty-one Million Dollars ($21,000,000)
(the"Commitment Amount*). Yorkville's obligation to make its share of the payment
for the Connection Facilities Cost as required in and under the Escrow IGA is
unconditional and irrevocable,and may be payable without setoff or counterclaim,and
irrespective of whether Lake Water is ever furnished, made available, or delivered to
Yorkville, or whether the Waterworks System is completed, operable, or operating,
and notwithstanding suspension, interruption, interference, reduction, or curtailment
of the supply of Lake Water.
D. Capital Cost Recovery Charge Payment. Yorkville shall pay monthly to
the Commission, at the time specified in Subsections TG and TM below, an amount
calculated by amortizing the Capital Cost Recovery Charge (less any Asset-in-Kind
Amount), in equal monthly installments of principal and interest, at a rate per annum
equal to the Earned Interest Rate determined for each Interest Period plus one percent,
over the life of the Contract Customer Contract remaining as of the month in which
Yorkville first becomes obligated to make such payment;provided,however,that such
monthly installment may be adjusted by the Commission, on May I of each year
thereafter, to ensure amortization of the then-current amount of the Capital Cost
Recovery Charge (less any Asset-in-Kind Amount) remaining unpaid, as of such May
1, over the life of the Contract Customer Contract then remaining, and to reflect any
change in the Earned Interest Rate, as of such May 1. The method of calculating the
Capital Cost Recovery Charge is illustrated in Exhibit E attached to this Contract.
Yorkville's obligation to make all Capital Cost Recovery Charge payments as required
United City of Yorkville
Water Purchase and sale Contract
30
hereunder is unconditional and irrevocable, payable without setoff or counterclaim,
and irrespective of whether Lake Water is ever furnished, made available, or delivered
to Yorkville, or whether the Waterworks System is completed, operable, or operating,
and notwithstanding suspension, interruption, interference, reduction, or curtailment
of the supply of Lake Water.
E. Underconsumption Costs Pant. If Yorkville is an Undereonsumer at
the Yorkville Unit System, then Yorkville shall pay, at the time specified in
Subsections TG and TM below, its share of Underconsumption Costs as determined
and assessed by the Commission after notification of such costs under the Water
Supply Contract. In such event, Yorkville's share of Underconsumption Costs for the
Yorkville Unit System for a year shall be equal to the ratio of its Underconsumption to
the aggregate Underconsumption of al I Underconsumers for such year.
F. Default Shares. if any of the Commission's Contract Customers shall
default in any payment to the Commission, or any part of any payment, including
default shares, Yorkville agrees to pay to the Commission a share of the amount so in
default, which share shall be in the same proportion as the Yorkville Unit System's
share of Aggregate Costs for the month prior to the month of the default bears to the
sum of the shares of Aggregate Costs in that month of all of the Commission's Contract
Customers not in default and obligated to make payments with respect to the amount
so in default.
Subject to Subsection TM below, Yorkville's share of the amount so in default shall
be due and payable 21 days after the Commission's written demand therefor. The
United City of Yorkville
Water Purchase and Sale Contract
31
demand shall include the Commission's calculations of the amount due by Yorkville
hereunder. If and when the defaulting customer makes a payment to the Commission
of a defaulted amount or interest thereon for which Yorkville made a payment to the
Commission under this Subsection 7.17, then the Commission will pay to Yorkville its
proportionate share of such amount, including such interest.
G. Bills and Due Date. Except with respect to the payment of the Possible
Shortfall required pursuant to Subsection 7.0 above and the payment ofdefault shares
pursuant to Subsection U above, the Commission shall notify Yorkville of the total
amount due under this Contract for each month on or before the 10th day of the
following month. Yorkville's costs for each month shall be due and payable and must
be received at the offices of the Commission, on or before the 10th day of the month
following the month of the Commission's notification or within 28 days after the date
of notification, whichever is later.
H. Disputed Payments. If Yorkville desires to dispute any payment, or part
thereof, due or reasonably claimed by the Commission to be due under this Contract,
Yorkville shall nevertheless pay the full amount of any such payment when due and
include with such payment written notification to the Commission that charges are
disputed, the grounds for dispute, and the amount in dispute. No adjustment or relief
on account of any disputed charges shall be made unless disputed charges are the
subject of such notice within the time herein specified, or within a reasonable period
from the time Yorkville knew or should have known of the facts giving rise to the
dispute.
United City of Yorkville
Water Purchase and Sale Contract
32
Upon receipt of a notification of dispute,representatives of the Commission shall meet
promptly with representatives of Yorkville to resolve such dispute. No adjustment or
relief oil account of any disputed charges shall be made unless disputed charges are the
subject of such notice within twenty-one (?1) days of receipt by Yorkville of the bill,
or within a reasonable period from the time Yorkville knew or should have known of
the facts giving rise to the dispute.
It' the Commission and Yorkville determine that all or a portion of the disputed
payment should be refunded to Yorkville,then such sum shall be refunded with interest
thereon at the rate established in Subsection 7.1 below from the date such disputed
payment was made.
1. Interest on Overdue Payments, If Yorkville shall fail to make any payment
required under this Contract, the Escrow IGA, or the Capital Cost Recovery Charge
IGA to the United City of Yorkville on or before its due date, Yorkville shall be in
default,and interest on the amount of such payment shall accrue to the extent permitted
by law, and be compounded on a monthly basis, during the period of non-payment at
the higher of-
(i) the weighted average effective interest rate on all series of Bonds of
the Commission any of which are then outstanding plus two percent;or
(ii)the Prime Rate plus five percent.
Such interest shall accrue from the date such payment becomes due until paid in full
with interest as herein specified. If such payment is not made by Yorkville within
30 days after the date such payment becomes due, then the Commission, at its option
United City of Yorkville
Water Purchase and Sale Contract
33
and in its discretion,may reduce or discontinue delivery of Lake Water to the Yorkville
Unit System until the amount due the Commission is paid in full with interest as herein
specified. The Commission shall give notice to Yorkville not less than 20 days prior
to the event of its intention to reduce or discontinue delivery of Lake Water in
accordance With this Subsection 7.1 and shall provide Yorkville an opportunity for a
hearing before the Commission prior to any reduction or discontinuance. II' the
Commission reduces or discontinues the delivery of Lake Water under such
circumstances, Yorkville shall nevertheless continue to be liable to pay all charges
provided for herein as if the Yorkville Unit System were receiving its Full Water
Requirements from the Commission. The rights specified in this Subsection 7.1 shall
be in addition to all other rights and remedies available to the Commission under this
Contract, at law, or in equity for breach of any of the provisions of this Contract.
J. Security Deposit. If Yorkville is at any time in default on any payment due
under this Contract, the Escrow IGA, or the Capital Cost Recovery Charge IGA, and
the default is not cured within 30 days after the due date of the defaulted payment,then
the Commission, at its option and in its discretion, may require Yorkville, as a further
obligation under this Contract, to deposit in a separate account in the Commission's
name a sum of money as security for the payment of Yorkville's obligations hereunder
of a reasonable amount determined by the Commission. Yorkville's compliance with
the Commission's demand for such a security deposit shall be a condition precedent to
the curing of such Yorkville default and the restoration of the Lake Water service to
the Yorkville Unit System if such Lake Water service has been reduced or discontinued
United City of Yorkville
Water purchase and Sale Contract
34
by reason of such default. The security deposit or any part thereof may be applied, at
the Commission's option and in its discretion, to any subsequent default by Yorkville
in any payments due under this Contract,the Escrow IGA or the Capital Cost Recovery
Charge IGA. If so applied, Yorkville shall provide funds within 10 days to restore the
security deposit to the amount required by the Commission. At the earliest of the end
of the term of this Contract, or a term of two years after the curing of the most recent
default by Yorkville, or such earlier time that the Commission at its option and in its
discretion may determine, any security deposit shall be returned to Yorkville if
Yorkville has performed all its obligations under this Contract, the Escrow IGA or the
Capital Cost Recovery Charge IGA. Yorkville shall not be entitled to receive any
interest on any security deposit.
K. 'Prepayments. Subject to the limitations of this paragraph, Yorkville may
(i)at any time,and from time to time,before Yorkville first becomes obligated to make
payments of Operation and Maintenance Costs pursuant to Subsection 7.M below, and
(ii) no more frequently than once in any given year thereafter, at any time during the
month of December, prepay, in whole or in part, the Connection Facilities Cost, the
Capital Cost Recovery Charge Amount due, or other amount previously agreed to,
pursuant to this Contract,without premium or penalty,upon at least one business day's
irrevocable notice to the Commission, specifying the date and amount of prepayment.
If such notice is given, Yorkville shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. The
proceeds of any such prepayment shall be applied by the Commission first, to the
United City of Yorkville
Water Purchase and Sale Contract
35
payment of accrued and unpaid interest, if any, on the Connection Facilities Cost
accruing after the date specified in Subsection 7.M below; second, to the payment of
the unpaid principal balance of the Connection Facilities Cost,third,to the payment of
accrued and unpaid interest, if any, on the Capital Cost Recovery Charge Amount
accruing after the date specified in Subsection TM below; and fourth, to the payment
of the unpaid principal balance of the Capital Cost Recovery Charge Amount,
provided. however, that Yorkville shall not be entitled to make any such prepayment
pursuant to this paragraph if Yorkville's Base Rate during the Fiscal Year next
following the date of such payment would be, as estimated by the Commission, less
than the Average Contract Customer Rate Per 1,000 Gallons. For purposes of
calculating Yorkville's Base Rate, any such prepayment shall be deemed to have been
paid effective as of the 30th day of April next following the date of such payment or
the 30th day of April next following the month in which Yorkville first becomes
obligated to make such Connection Facilities Cost payments and Capital Cost
Recovery Charge Amount payments,whichever is later. Yorkville shall not be entitled
to, nor receive any credit for, interest on any such prepayment.
Notwithstanding anything to the contrary contained herein, in the event the Yorkville
Unit System has not been constructed, installed, and completed, to a point where it is
capable of serving its intended function at the time Yorkville first becomes obligated
to make payments of Operation and Maintenance Costs pursuant to Subsection TM
below, then the Commission may, in its sole and absolute discretion, declare the
principal amount of the Connection Facilities Cost remaining unpaid, in whole or in
United City of Yorkville
Water Purchase and Sale Contract
36
part, the principal amount of the Capital Cost Recovery Charge remaining unpaid, in
whole or in part, or both of such remaining unpaid costs, in whole or in part, due and
payable within 30 days following the date of such declaration, together with accrued
and unpaid interest as herein specified on such declared due amounts to the date paid,
unless the Commission shall have exercised its right to terminate this Contract pursuant
to Subsection 20.0 of this Contract. The rights specified in this paragraph shall be in
addition to all other rights and remedies available to the Commission under this
Contract, at law, or in equity for breach of any of the provisions of this Contract.
L. Enforcement of Provisions Hereof by Other Customers. Yorkville
acknowledges that its obligation to make payments pursuant to the terms of this Section
7 is of benefit to the Commission's Contract Customers,Bondholders,and any Trustee.
Accordingly, Yorkville agrees that, in addition to the Commission. Bondholders, a
Trustee or other parties allowed by law are entitled to enforce the provisions of this
Contract. Further, any three or more of the Commission's Contract Customers acting
together may enforce the provisions of this Section 7, but only if the Commission has
not acted to enforce such provisions within 90 days after any failure by Yorkville to
make a payment hereunder.
M. Beginning of Obligation to Pay. Notwithstanding any other provision of
this Contract,the obligation to make any and all payments under this Contract., except
only payments of Operation and Maintenance Costs pursuant to Subsection 7.A above
and payment of any Possible Shortfall required pursuant to Subsection TC above,shall
begin on the Commission's first regular billing cycle after the earlier to occur of(i)the
United City of Yorkville
Water Purchase and Sale Contract
37
first delivery of Lake Water to the Yorkville Unit System or any portion thereof or(ii)
12 months following completion of construction of the Commission Connection
Facilities,other than the SCADA System facilities,to the point where they are capable
of serving their intended function or would be capable of serving their intended
function except for the fact that the Yorkville Unit System Connection Facilities are
not complete. The obligation to make payments of Operation and Maintenance Costs
Pursuant to Subsection 7.A above shall begin on the Commission's first regular billing
cycle after the earlier to occur of(i) the first delivery of Lake Water to the Yorkville
Unit System or any portion thereof or (ii) completion of construction of the
Commission Connection Facilities, other than the SCADA System Facilities, to the
point where they are capable of serving their intended function or would be capable of
serving their intended function except for the fact that the Yorkville Unit System
Connection Facilities are not complete. At any time prior to the first delivery of Lake
Water to the Yorkville Unit System when Yorkville is obligated to make payments
pursuant to this Subsection TM, such payments shall be based on the Full Water
Requirements of the Yorkville Unit System.
SECTION 8. SPECIAL CONDITIONS AND COVENANTS.
A. Construction of the Commission Connection Facilities; No Delay
Damages, Supply of Lake Water. The Commission will make a diligent effort to have
the Commission Connection Facilities completed to the Points of Delivery so as to
furnish Lake Water to the Yorkville Unit System by the date specified in Subsection
10.H of this Contract, but the Commission does not in any way guaranty delivery by
such date.
United City of Yorkville
Water Purchase and Sale Contract
38
Yorkville acknowledges and agrees that the Commission shall not be liable to
Yorkville for any damages occasioned by or in any way related to delay in the delivery
of Lake Water to the Yorkville Unit System,and all payments from Yorkville provided
for under this Contract shall remain due and payable in accordance with the terms of
this Contract notwithstanding any such delay.
After Lake Water is first tendered for delivery to the Yorkville Unit System at the
Points of Delivery for other than start-up purposes pursuant to Subsection 10.1 of this
Contract, the Commission, subject to the other terms and conditions of this Contract,
shall use its best efforts to continually hold itself ready, willing, and able to supply
Lake Water to the Yorkville Unit System at such Points of Delivery. The Commission
also shall use its best efforts, consistent with its prior obligations and legal obligations
to its customers and consistent with the fair and equitable treatment of all of its
Contract Customers,to supply the Yorkville Unit System with such additional amounts
of Lake Water as from time to time may be allocated to the Yorkville Unit System over
and above the Yorkville Unit System's present Water Allocation; provided, however,
that the Commission does not in any way guaranty a supply of such additional amounts.
B. Lake Water Only. Except with the prior approval of Yorkville, the
Commission shall not deliver any water to the Yorkville Unit System other than Lake
Water. Except for Lake Water supplied for start-up purposes pursuant to Subsection
10.I of this Contract, costs for Lake Water charged to Yorkville by the Commission
pursuant to this Contract shall include only the costs set forth in Section 7 of this
Contract.
United City of Yorkville
Water Purchase and Sale Contract
39
C. Title to Lake Water. Title to all Lake Water supplied hereunder shall
remain in the Commission to the Points of Delivery and thereupon shall pass to
Yorkville.
D. Emergency Supply. Subject to the terms, conditions, and limitations set
forth in Subsection 9.N of this Contract,Yorkville may contract for a temporary supply
of water in case of an emergency from any unit of local government or any other entity.
Yorkville shall notify the Commission and shall promptly provide the Commission
with copies of all such contracts.
E. Covenants to Be Set Out in Bond Ordinance. Yorkville acknowledges the
existence,and its understanding of the provisions,of certain Bond Ordinances pursuant
to which the Commission has previously issued its Bonds. Yorkville further
acknowledges and agrees that said Bond Ordinances grant to Bondholders certain
rights to enforce certain duties of the Commission and its customers, including those
with respect to the making of rates and charges and the collection of revenues,and that
such Bondholder rights may be included in any subsequent Bond Ordinances.
F. Pavments Hereunder are an Operational Expense of the Yorkville Unit
Seem. Yorkville agrees that, to the fullest extent permitted by law or contract, all
payments to be made by Yorkville pursuant to this Contract shall constitute operating
expenses of the Yorkville Unit System as to any and all revenue bonds of Yorkville
which are supported in whole or in part by a pledge of the revenues of the Yorkville
Unit System, with the effect that Yorkville's obligation to make payments from its
water revenues under this Contract has priority over its obligation to make payments
United City of Yorkville
Water Purchase and Sale Contract
40
of the principal and of the prernium, if any, and interest on any such bonds which are
or will be supported in whole or in part by a pledge of any Yorkville Unit System
revenues. Yorkville shall make all budgetary, emergency, and other provisions and
appropriations necessary to provide for and authorize the prompt payment to the
Commission of all rates and charges under this Contract. The obligations of Yorkville
under this Contract are further payable from all other accounts of the Yorkville Unit
System in which there are lawful available funds. In any revenue bond or indenture
hereafter issued by Yorkville, the priority of lien established pursuant to this Contract
shall be expressly provided and set forth in said bond ordinances or resolutions.
Notwithstanding the foregoing, however, Yorkville's obligations under the IEPA
Loans referenced in Subsection 9.D to be secured in whole or in part by a pledge of
Yorkville Unit System revenues to the I> PA shall have priority of lien over Yorkville's
obligation to make payment from its water revenues under this Contract.
SECTION 9. ADDITIONAL YORKVILLE COVENANTS.
A. Maintenance of Corporate Existence. Yorkville agrees that during the term
of this Contract it will maintain its municipal corporate existence, it will continue to
be a municipal corporation in good standing in the State of Illinois, it will not dissolve
or otherwise dispose of all or substantially all of the assets of the Yorkville Unit
System.
B. Maintenance and Operation of Yorkville Unit System. Yorkville shall own
and maintain the Yorkville Unit System and the Yorkville Unit System Connection
Facilities, and all improvements and extensions of the Yorkville Unit System and the
United Cite of Yorkville
Water Purchase and Sale Contract
41
Yorkville Unit System Connection Facilities, in good repair and working order. will
operate the Yorkville Unit System and tile Yorkville Unit System Connection Facilities
cOicioni|y, and will punctually perform all duties with respect to the Yorkville Unit
Systern and the Yorkville Unit System Connection Facilities as may be required by
this Contract, and by the Constitution and |uvvo o[thc 3t8c of Illinois and all other
upp|ioub|c |u\vs. In the event of any deterioration, injury, damage, or other loss tothe
Yorkville Unit System or tile Yorkville Unit Symtcnn Connection Facilities affecting
`yorkvi||c's ability to deliver vvoAc, to any of °yorkviUc`s cux(nrncrx, Yorkville sbu||
promptly restore the Yorkville Unit System or the "ynrkvi||c Unit System Connection
Facilities and their capacity ioxo deliver water.
C. Rate Covenant. Yorkville oba|| take all ncoc*»ucy actions to establish,
maintain, revise as neonsoury, and collect rates and charges for customers of the
Yorkville Unit System as shall be required from time io time io produce revenues at
|cuat sufficion(:
(i) To pay all ummounio due under this Contract, the 6ucvmvw lG/\, the
Capital Cost Recovery Charge /Q/k and the |6P& Loans referenced
herein, and to pay all other costs of operation and maintenance ofthe
Yorkville Unit 8yo1cmn and the `ynrkvi||c Unit Sys1c,n Connection
Facilities; and
(ii) To provide an adequate depreciation fund for the Yorkville Unit
System and the Yorkville Unit System Connection Facilities; and
(iii) Tu make all deposits in all funds and accounts required by the terms
of resolutions o, ordinances authorizing any obligation of Yorkville
payable from the revenues of the Yorkville Unit System; and
(iv) To pay the principal of and the premium, if any, and interest on all
United City v/Yorkville
Water Purchase and Sale Contract
42
obligations of Yorkville payable from the revenues of the Yorkville Unit
System including, but not limited to, its obligations under the Escrow
IGA, the Capital Cost Recovery Charge IGA, and to repay the IEPA
Loans referenced in Subsection 9.D.
D. Future Subordination of Obligations. Any ordinance, resolution, motion,
or other action of Yorkville which authorizes the issuance after the date of this Contract
of any obligation of Yorkville to be paid from the revenues of the Yorkville Unit
System will expressly provide that revenues of said System may be used to pay
principal of, and the premium, if any, and the interest on such obligations only to the
extent that those revenues exceed the amounts required to pay the operation and
maintenance expenses of said System including, expressly, all amounts payable from
time to time under this Contract,except for any present or future ordinance, resolution,
motion or other action of Yorkville which authorizes, or has authorized, it to borrow
funds from and enter a loan agreement with the Illinois Environmental Protection
Agency (the "IEPA Loans") which may provide for the collection, segregation,
distribution and/or pledge of revenues of the Yorkville Unit System which shall be the
only obligation with preference of priority over Yorkville's obligation to the
Commission hereunder.
E. General Covenant to Operate Properly. From time to time, Yorkville shall
take all steps reasonably necessary so that the Yorkville Unit System and the Yorkville
Unit System Connection Facilities may at all times be operated in accordance with
industry standards.
F. Accounting and Audit. Yorkville shall make and keep proper books and
accounts(separate and apart from all other records and accounts of Yorkville) in which
United City of Yorkville
Water Purchase and Sale Contract
43
complete entries shall be made ofalI transactions relating to the Yorkville Unit System,
and,within 180 days after the close of each of its fiscal years occurring during the ten-►
of this Contract, Yorkville shall cause the books and accounts of the Yorkville Unit
System to be audited annually by independent certified public accountants, showing
the receipts and disbursements on account of the Yorkville Unit System.
G. Maintain Ownership of Yorkville Unit System. Yorkville shall construct
to completion and thereafter continue to own and possess the Yorkville Unit System
and, within the exercise of reasonable business judgment and in a manner so as not to
cause a default hereunder, shall dispose of property which is part of said System only
to the extent that the Commission consents in writing, which consent shall not be
unreasonably withheld. This subsection G does not prohibit Yorkville from selling
specific equipment that it considers surplus and that is no longer needed or utilized to
operate the Yorkville Unit System.
H. Insurance. Yorkville shall carry insurance or maintain self-insurance with
respect to the Yorkville Unit System and the Yorkville Unit System Connection
Facilities of the kinds and in the amounts that are customarily carried or maintained by
parties operating similar properties, including, without limiting the generality of the
foregoing, fire and- other casualty and liability insurance or protection. All moneys
received for loss under the insurance policies or on deposit as self-insurance reserves
shall be used in making good the loss or damage in respect of which they were paid,
whether by repairing the property damaged or replacing the property destroyed, and
provision for making good such loss or damage or replacing the property destroyed
United City of Yorkville
Water Purchase and Sale Contract
44
shall be made within a reasonable time from date of loss. The proceeds derived from
any and all policies or available from self-insurance reserves for public liability losses
shall be used in paying or reimbursing any accounts from which payments for
settlements,judgments, or expenses were advanced.
1. Continue to Serve. Yorkville shall use its best efforts to continue serving
all customers of the Yorkville Unit System within its territorial limits that are intended
to be served by the Yorkville Unit System as of the date of this Contract.
J. Maintain Water Allocation. Yorkville shall use its best efforts to obtain or
retain, from time to time,. a Water Allocation for the Yorkville Unit System at least
equal to, but not in excess of two times, the Yorkville Unit System's Full Water
Requirements from time to time.
K. Release and Indemnification. To the fullest extent permitted by law,
Yorkville hereby releases the Commission from, agrees that the Commission shall not
be liable for,and agrees to indemnify and hold the Commission han-nless from:(1)any
liabilities for any loss or damage to property or any injury to, or death of: any person
that may be occasioned by or related to any cause whatsoever pertaining to the
construction, installation, removal, relocation, replacement, extension, improvement,
maintenance,or operation of the Yorkville Unit System or the Connection Facilities or
(2) any liabilities, losses, or damages, or claims therefor, arising out of the failure, or
claimed failure, of Yorkville to comply with its covenants or obligations contained in
this Contract, including, in each such case, any attorneys` fees. Yorkville agrees to
indemnify and hold the Commission harmless to the fullest extent permitted by law
from any losses, costs, charges, expenses (including attorneys' fees),judgments, and
United City o►'Yorkville
Water Purchase and Sale Contract
45
liabilities incurred by the Commission in connection with any action, suit, or
proceeding instituted or threatened by any third party in connection with this Contract.
If any such claim is asserted, the Commission shall give prompt notice to Yorkville
and Yorkville, if requested by the Commission, shall assume the defense thereof, it
being understood, however, that Yorkville shall not settle or consent to the settlement
of any such claim without the written consent of the Commission.
L. Combining or Separating System Accounts. Yorkville shall not combine
its waterworks system with its sewerage system or separate its combined waterworks
and sewerage system into separate systems unless:
(i) Yorkville shall have provided the Commission with written
evidence,satisfactory to the Commission, that the proposed combination
or separation will not materially or adversely affect Yorkville's ability to
comply with all of the terms,conditions, and covenants of this Contract;
and
(ii) The Commission shall have approved Such combination or
separation in writing.
M. Rate of Withdrawal. Yorkville will take Lake Water at the most uniform
and continuous rate of withdrawal practical.
N. Emergency Interconnections. No emergency interconnection between the
Yorkville Unit System and a water distribution system owned and operated by another
Contract Customer ("Emergency Interconnection") shall be constructed, operated, or
maintained except in accordance with the following terms,conditions,and limitations:
(i) The other Contract Customer and Yorkville shall submit to the
Commission, for its review and approval, at least 60 days prior to the
construction of the Emergency Interconnection or, if the Emergency
Interconnection was constructed prior to the execution of this Contract,
within 60 days following the execution of this Contract,a report detailing
United City of Yorkville
Water Purchase and Sale Contract
46
the exact location of the Emergency Interconnection, the manner in
which the Emergency Interconnection has been and will be operated and
maintained, and the terns of any written or oral agreement for the
operation and maintenance of the Emergency Interconnection. Such
report shall include as-built drawings of the Emergency Interconnection
and exact duplicates of any written agreement for the operation and
maintenance of the Emergency Interconnection. The Emergency
Interconnection shall not be operated unless and until the Commission
shall have approved such report and the Commission shall have received
and approved the written agreements required pursuant to clauses (ix)
and (xii) of this Subsection 9.N. No approval of such report shall be
withheld unless the Emergency Interconnection,or any agreement for the
operation and maintenance of the Emergency Interconnection,violate the
Contract Customer Contract, this Contract, the Water Supply Contract,
or applicable laws or regulations, or pose a threat to the Commission or
its Waterworks System.
(ii) The Emergency Interconnection shall be utilized only under
emergency conditions unless otherwise approved, in writing, by the
Commission. An emergency condition shall be defined to mean the
inability to provide average day flow demands to regular,non-emergency
supply customers during a limited period of time due to conditions
beyond the control of the party requesting Lake Water. An emergency
condition shall not mean any limitation imposed by the Commission on
the supply of Lake Water to the other Contract Customer or Yorkville
specifically related to the other Contract Customer or Yorkville pursuant
to Section 3 of this Contract or any similar provision of any other water
purchase and sale contract, as the case may be, and the Emergency
Interconnection shall not be utilized to circumvent the provisions of any
agreement approved by the Commission for the Alternate Delivery of
Lake Water.
(iii) The Emergency Interconnection shall be maintained in such a
manner as at no time to place or threaten to place the Commission or its
Waterworks System in jeopardy of failing to meet the terms of the
Contract Customer Contract, this Contract, the Water Supply Contract,
or the regulations of any agency or governmental authority having
jurisdiction over the of a public water supply.
(iv) The party experiencing the emergency condition shall give
telephonic notice to the Commission and to the other party of the
emergency condition,the expected duration of the emergency condition,
and the amount of Lake Water needed, prior to the operation of the
Emergency Interconnection. The Emergency Interconnection shall not
United City of Yorkville
Water Purchase and Sale Contract
47
be operated unless and until the party experiencing the emergency
condition shall have given said notice to the Commission.
(v) The party receiving Lake Water through the Emergency
Interconnection shall provide daily telephonic notice to the Commission
and the party delivering Lake Water for so long as the emergency
deliveries continue, and shall provide telephonic notice to the
Commission before final shut-off of the emergency flow of bake Water
through the Emergency Interconnection for each such emergency
condition.
(vi) The other Contract Customer and Yorkville shall keep a joint record
of the amount of Lake Water delivered through the Emergency
Interconnection, a copy of which shall be provided to the Commission
within rive days following termination of the use of the Emergency
Interconnection for each such emergency condition and, in any case,
every five days where the Emergency Interconnection is continuous for
more five days.
(vii)The amount of Lake Water delivered to the other Contract
Customer's water distribution system or to the Yorkville Unit System
through the Emergency Interconnection,as the case may be,shall be paid
to the Commission directly by the party receiving Lake Water through
the Emergency Interconnection at the rates applicable pursuant to,and in
accordance with, that party's water purchase and sale contract with the
Commission. hn case of service curtailment, the other Contract
Customer's flow of water through the Emergency Interconnection shall
be considered as a portion of the other Contract Customer's allocation
from the Commission. In case of service curtailment, Yorkville's flow
of water through the Emergency Interconnection shall be considered as
a portion of Yorkville's allocation from the Commission.
(viii) The Commission shall have the right to inspect the Emergency
Interconnection, and its operation and maintenance. The Commission
shall have the right to install seals or such other devices as the
Commission, in its sole and absolute discretion,determines are necessary
to determine the operation of the Emergency Interconnection, and all
equipment required to be installed to allow the installation of the seals or
such other devices shall be installed at Yorkville's sole cost and expense.
(ix) The Commission shall bear no responsibility for, and the other
Contract Customer and Yorkville shall, in writing, release the
Commission from, and agree, to the fullest extent permitted by law, that
the Commission shall not be liable for, and agree to indemnify and hold
the Commission harmless from, any claims, damages, liabilities, and
United City,of Yorkville
Water Purchase and Sale Contract
48
litigation that may be occasioned by, connected with, or in any way
related to the construction,operation,and maintenance of the Emergency
Interconnection. The other Contract Customer and Yorkville shall agree,
in writing, to pay all fees, costs, and expenses, including legal and
administrative fees. costs, and expenses, incurred by the Commission in
defending itself with regard to any and all of the matters mentioned in
this Subsection R.N.
(x) The operation and maintenance of the Emergency Interconnection
shall comply in all other respects with the Water Commission Act of
1985, the Contract Customer Contract, this Contract and the Water
Supply Contract and the requirements of the Commission thereunder.
(xi) Notwithstanding anything to the contrary contained in any written
or oral agreement for the operation and maintenance of the Emergency
Interconnection, the Emergency interconnection shall be operated and
maintained only in accordance with this Subsection 9N and such
additional or other terms, conditions, and limitations as the Commission
shall impose pursuant to any policy established by the Commission with
respect to emergency interconnections. No such agreement shall be
amended, modified, or otherwise changed except upon the prior written
approval of the Commission.
(xii)The Commission reserves the right to order all use of the Emergency
Interconnection to be discontinued,and the other Contract Customer and
Yorkville shall agree, in writing,to discontinue such use,at any time the
terms, conditions, and limitations of this Subsection 9.N and any such
additional or other terms, conditions and limitations imposed by the
Commission pursuant to any policy established by the Commission with
respect to emergency interconnections are not satisfied.
No emergency interconnection between the Yorkville Unit System and a water
distribution system owned and operated by any other person,firm,or organization shall
be constructed, operated, or maintained except upon the prior written approval of
Commission.
SECTION 10. SCHLOULE FOR COMPi_.ETION OF VARIOUS FACILITIES.
A. Plans and Specifications for Yorkville Unit System Connection Facilities.
Yorkville shall prepare and submit to the Commission for its review and approval,
United City of Yorkville
Water Purchase and Sale Contract
49
complete detailed plans, specifications, and construction contract documents for the
Yorkville Unit System Connection Facilities not later than 20 weeks after the effective
date of this Contract. The Commission shall provide its comments and revisions to
Yorkville within 4 weeks after receipt of such documents. Yorkville shall incorporate
all required changes to such documents within 4 weeks after receipt of the
Commission's comments and revisions.
B. IEPA and Other Approvals for Yorkville Unit System Connection
Facilities. Yorkville shall, within one week after receipt of the Commission's
comments and revisions pursuant to Subsection 10.A above, submit such finally
revised documents for approval and permitting to the Illinois Environmental Protection
Agency(the"IEPA")and every other federal, state, or local governmental body having
jurisdiction over any element of the Yorkville Unit System Connection Facilities, and
shall diligently pursue each such approval and permit until it is secured.
C. Commencement of Construction of Yorkville Unit System Connection
Facilities. Yorkville shall cause construction of the Yorkville Unit System Connection
Facilities to be commenced within 52 weeks after the effective date of this Contract or
11 weeks after receipt of the last approval from any governmental body required as a
condition precedent to construction of the Yorkville Unit System Connection
Facilities, whichever is later. Yorkville shall cause construction to be completed within
104 weeks after commencement.
D. Intentionally Omitted.
E. Intentionally Omitted.
F. Intentionally Omitted.
United City of Yorkville
Water Purchase and Sale Contract
50
G. Transfer of Property Rights. Yorkville shall grant to the Commission all
necessary easements for the Commission metering station and other facilities to be
constructed pursuant to Subsection 5.A of this Contract within 26 weeks after the
effective date of this Contract. Yorkville shall, immediately upon execution of this
Contract, commence all actions necessary to acquire all property rights not already
owned by it necessary to fulfill the requirements of Subsection 5.A of this Contract
and this Subsection 10.G.
H. Commencement of Construction of Commission Connection Facilities.
The Commission shall cause design of the Commission Connection Facilities to be
commenced within 8 weeks after receipt from Yorkville of the preliminary plans and
specifications for the Yorkville Unit System Connection Facilities satisfactory to the
Commission or upon acquisition of all rights of way and other property by Yorkville
acquired for the installation of the Commission Connection Facilities, whichever is
later.The Commission shall cause construction to be completed within 104 weeks after
receipt of the last approval from any governmental body required as a condition
precedent to construction of the Commission Connection Facilities or May 1, 2028,
whichever is later. Yorkville acknowledges and agrees, however,that the Commission
may, in the exercise of its sole and absolute discretion, accelerate commencement of
the design and construction of the Commission Connection Facilities, or completion
of construction thereof,without in any way affecting the obligations of Yorkville under
this Contract, including without limitation Yorkville's payment obligations.
1. Delive[y of Water for Start-Up Purposes. The Commission shall use its
best efforts, consistent with its prior obligations and legal obligations to its customers
United City of Yorkville
Water Purchase and Sale Contract
51
and consistent with the fair and equitable treatment ofoU n[ito Contract Customers, to
supply Yorkville with Lake Water for pressure temting, disinfecting. and flushing the
Yorkville Unit Syn0cnn, the Yorkville Unit 8ygrnn Connection Facilities, and the
required water storage facilities prior to completion of construction if(i) construction
of the Yorkville Unit System, the Yorkville Unit System Connection Facilities.and the
required vvutcr storage facilities is proceeding in the regular course to completion; (ii)
the construction n[thcCommission Connection Facilities has been completed, other
than the SC/\[)/\ System facilities, to the point where the Commission Connection
facilities are capable of serving their intended function or would be capable of serving
their |otcudcd function except for the fact that the Yorkville Quit System or the
Yorkville Unit System Connection Facilities are not complete; (iii) such Lake Water
is utilized by Yorkville xo|o)y for purposes of pressure testing, disinfecting. and
flushing the Yorkville Unit System, the Yorkville Unit System Connection Facilities,
or the required water storage facilities; and (iv) Yorkville pays to the Commission, at
the time specified in Subsection 7.1-1 of this Cnniract, an amount equal to the 1hcu
current price per 1,000 gallons for Operation and Maintenance Costs times the amount
of water, stated in thousands of gallons, uc1uu|(y received from the Cnrnon)ouinu for
Such purposes until such time umYorkville first becomes obligated io make payments
of Operation and Maintenance Costs pursuant to Subsections 7./\ and 7.h4 of this
Contract.
J. Illustrative Schedule of Events. An -Illustrative 8obodu|c of Events"
depicting, on the basis of assumptions concerning the |cnutb of time necessary to
secure various governmental approvals, the sequence of work pursuant to this Section
United City"(Yorkville
Water Purchase and Sale Contract
52
|0is attached(o this Conti-act os Exhibit P. |o the event n(any conflict orinconsistency
between the provisions of Exhibit F and the provisions of this Section 10, the
provisions ofthis Section |Osba|| oouivn|.
SECTION 18.
Yorkville shall not assign or transfer this Contract or any rights or interests boncin
without the advance written consent of the Commission,
The right to receive all payments that are required to be made by Yorkville to the
Commission io accordance with the provisions of this Contract may bcassigned by the
Commission to any Trustee as provided in any Bond Ord inances/Reso lutions to secure
the payment of the principal of and the premium, if any, and interest on the Bonds as
those amounts come due, subject to the application of those payments as may be
provided in any Bond Ordinances/Resolutions. Yorkville, upon notice ofassignment
to any such Trustee, shall make all payments directly to such Trustee. Further, the
rights o[the Commission 1uenforce the provisions o[this Contract may be assigned to
any such Trustee and, in such event, such Trustee shall have the right k) 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 eo[npoc this Contract.
SECTION 12. FORCE MAJEURE.
If, by rcuaou o[aforce nn 'eurc cvnut` either party to this Contract shall be rendered
unable wholly or in pad to carry out its obligation under this Contract, then if such
party shall give notice and full particulars of such force mm 'runccvent |uvvdting to the
United City u[Yorkville
Water Purchase and Sale Contract
53
other party within seven (7) days after occurrence of the event or cause relied on, the
obligation of the party giving such notice, so far as it is affected by such force majeure
event, shall be suspended during the continuance of the inability then claimed, but for
no longer period, and any such party shall endeavor to remove or overcome such
inability with all reasonable dispatch. The term "force majeure event" as employed
herein shall mean acts of God; strikes, lockouts, or other industrial disturbances; acts
of a public enemy; orders of any kind of the Government of the United States, of the
State of Illinois, or of any civil or military authority; insurrections; riots; epidemics;
pandemics; landslides; lightning; earthquakes; fires; hurricanes; storms; floods;
washouts; droughts; arrests; restraints of government and people, civil disturbances;
explosions, breakage, or accidents to machinery, pipelines, canals, or tunnels; partial
or entire failure of water supply;and inability on the part of the Commission to deliver
Lake Water hereunder, or of Yorkville to receive Lake Water hereunder, on account
of any other causes not reasonably within the control or ability to cure of the party
claiming such inability. The settlement of strikes and lockouts shall be entirely within
the discretion of the party having the difficulty and the above requirement that any
force majeure event shall be remedied with all reasonable dispatch shall not require the
settlement of strikes and lockouts by acceding to the demands of the opposing party or
parties when such settlement is unfavorable to it in the judgment of the party having
the difficulty. No force majeure event which renders either of the parties unable to
perform under this Contract shall relieve Yorkville of its obligation to make payments
to the Commission as required under Section 7 of this Contract and such payments
United Citv of Yorkville
Water Purchase and Sale Contract
54
shall continue as if the Yorkville Unit 9vutcm were receiving its Full Water
Requirements from the Commission.
SECTION 13'
Failure by the Commission to deliver Lake Water to Yodmi||c as required by this
Cnoi,mct or failure of the Commission to perform any other obligation under this
Contract,and the continuation of that failure to perform for 30 days after written notice
hnmnYo,kvi}|e to the Commission of such failure,shall bco default o[theCommission
under this Contract, unless any mucb failure is excused pursuant to Section |Zo[this
Contract. If the Commission defaults tinder this Contract. then Yorkville may bring
any action against the Commission m||ovved by |avv, No Commission default xhu||
vc|irvc `yo,kvi||c of its obligation to make payments to the Commission as required
under Section 7o[this Contract and such payments shall continue asif the Yorkville
Unit System were receiving its Full Water Requirements from the Commission.
SECTION 84, YORKVILLE OBLIGATION UNCONDITIONAL.
Yorkville xho|| have no right toterminate, cancel, o, rescind this Contract; no right to
withhold from the Commission or any Trustee who is an assignee of the Commission
pursuant to Section | | of this Contract payments doe or to become due under this
Contract; no right to recover from the Cocnnniseiuo or any such Trustee amounts
previously paid under this Contract unless paid in error orcontrary to the provisions
of this Contract or law; no right ofreduction or set-off against the amounts due nrtn
become due under this Contract to the Commission V, any such Trustee; and uolien
on any unuuuntm in any fond established by the Commission or such Trustee for any
United City o[Yorkville
Water Purchase and Sale Contract
55
reason or on account of the existence or occurrence of any event, condition, or
contingency, whether foreseen or unforeseen or foreseeable or unforeseeable by
Yorkville or the Commission or any other person, including by way of illustration and
not limitation by reason of the fact that the Waterworks System in whole or in part is
not completed, operable, or operating; or the output of the Waterworks System in
whole or in part is suspended, interrupted,interfered with,reduced,or curtailed;or any
party to the Water Supply Contract does not perform in whole or in part thereunder; or
the Water Allocation of any of the Commission's Contract Customers is modified or
terminated or any such Contract Customer does not perform in whole or in part any
agreement or instrument, it being the intent hereof that Yorkville shall be absolutely
and unconditionally obligated to make all payments under this Contract. The
Commission may issue Bonds in specific reliance on the limitations set forth in this
Section 14 with respect to the rights of Yorkville.
SECTION 15. COOPERATIOrS JJi CONSTRUCTION: EASEMENTS.
Yorkville shall cooperate with the Commission in the construction and acquisition of
the Waterworks System. Yorkville is responsible for acquiring all necessary real
property and easements within the City to build the Connection Facilities and shall
transfer that insured real property and insured easements to the Commission upon
acquisition. Additionally, Yorkville, within 30 days after Commission's request
therefor, shall grant without charge to the Commission all required construction
easements and all insured easements necessary for portions of the Waterworks System
to be located on Yorkville's property, free and clear of all liens,claims,encumbrances,
United City of Yorkville
Water Purchase and Sale Contract
56
and restrictions unless otherwise approved by the Commission in writing,provided the
Commission cg,ccu to restore the cuunnmerU property in a reasonable manner after
construction. Yorkville shall grant the Commission all access k` its property necessary
to construct and install the Commission Connection Facilities and all other equipment
and appurtenant devices k) the Point ofDelivery.
SECTION 86. COOPERATION IN IMLANCE OE BONDS.
Yorkville shall cooperate with the Commission in the issuance of Bonds. In connection
\bcvcwitb, Yorkville shall comply with all reasonable requests of the Commission and
shall upon request dmum h»||ovvs:
A. Make available general and financial infh,nzo1ioo about itself in
accordance with 6&/\P', and
B. Consent ho publication and distribution of its financial information;
and
C. Ccdip» that general and financial information about it is accurate.
does not contain an untrue staternent of a material fact,and does not ornit to
state u material fact necessary in order to make the statements in that
information, in light ufthe circumstances Linder which they were made, not
misleading; and
D. Make available certified copies o[officia| proceedings; and
E. Provide reasonable certifications to be used in a transcript ofclosing
documents; and
F. Provide and pay for reasonably requested opinions o[counsel nfits
choice aato the validity u[its actions taken with respect to, and the binding
effect of, this Contract, title to the Yorkville Unit System, pending or
threatened litigation which could materially affect its performance
hereunder, and other reasonably related opinions.
SECTION 17.
The Commission and Yorkville through this Contract seeks in exercise and maintain
Vniud City o[Yorkville
Water Purchase and Sale Contract
57
all sovereign rights granted to it under and through the Constitution and laws of tile
State of Illinois. This Contract shall be subject to all valid rules, regulations, and |mv/m
applicable hereto passed nrpromulgated by the United States oFAn#ricu, the State of
Illinois., any governmental body or agency having |o°'{u| jurisdiction, and any
authorized representative or agent of any of them: provided, however, that this clause
nhu|| not be construed as waiving the right of either party to challenge the validity oil'
auch ox|c, regulation, or law ooany basis, including the impairment o[this Contract.
SECTUKyN88. OTHER WATER�LEEJLIERS.
Notwithstanding any of the provisions of this Contract, the Commission is not
prohibited by this Contract from entering into cooperative arrangements with other
suppliers or users of Lake Water to provide Lake Water to each other to nncct each
other's vvut*r ocedo, provided that these unanAerouotu do not interfere, except in
emergencies. with the delivery of Lake Water to tile Yorkville Unit System.
SECTION 19. ^
A. Notices. All notices or conunnuoications provided for herein uhm|| be in
writing and shall bo delivered either in person or by United 3lutcs mail, by certified
noui| with return receipt requested, postage prepaid, and addressed as 6z\)owS:
To the Commission:
C)uPugc Water Commission
600 East Butterfield Road
Elmhurst, IL 80120
Attention: General Manager
United City^[Yvrkvi|h
Wa= Purehase and Sale Contract
58
To Yorkville:
United City of Yorkville
651 Prairie Pointe Drive
Yorkville IL 60560
Attention: City Administrator
Copy to:
Kathleen Field Orr
City Attorney
Kathleen Field Orr& Associates
1804 North Naper Blvd.,Ste. 350
Naperville,IL 60563
until and unless other addresses or addressees are specified by notice given in
accordance herewith.
B. Evidence of Actions. Any action hereunder to be taken by the Commission
or Yorkville may be evidenced by copy of off►cial proceedings (including pertinent
minutes, motions, resolutions, or ordinances, as applicable)duly certified by the Clerk
of the Commission or the City Clerk of Yorkville.
All notices, demands, requests, consents, approvals, and other instruments required or
permitted to be made or given by Yorkville pursuant to this Contract shall be in writing,
signed by a duly authorized officer, agent, or attorney of Yorkville.
C. Waiver. No course of dealing or failure of the Commission or Yorkville to
enforce strictly any term, right, or condition of this Contract shall be construed as a
waiver of such term, right, or condition. No express waiver of any term, right, or
condition of this Contract shall operate as a waiver of any other term, right, or
condition.
D. Partial Invalidity. If a term or provision of this Contract or the application
thereof to any person or circumstances shall,to any extent, be invalid or unenforceable,
United City of Yorkville
Water Purchase and Sale Contract
59
the remainder of this Contract. or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or unenforceable, shall
not be affect thereby, and each such term and provision of this Contract shall be valid
and be enforced to the fullest extent permitted by law.
SECTION 20. EFFECTIVE DATE; TERMINATION. PAYMENT OF
ID1TER.IM COSTS, TERM.
A. Effective Date. Except for the provisions of Section 10 of this Contract
relating to the commencement of certain work following execution of this Contract
and except for the provisions of Section 20.0 of this Contract relating to the payment
of certain costs, as to which provisions this Contract shall be effective immediately
after authorization and execution by both parties hereto,this Contract shall be effective
upon authorization and execution by both parties hereto and issuance by the State of
Illinois Department of Natural Resources, Office of Water Resources, of a Water
Allocation permit to Yorkville for each discrete and non-contiguous service area
served by the Yorkville Unit System.
B. Commission Right to Terminate. If the Yorkville Unit System has not been
constructed, installed, and completed to a point where it is capable of serving its
intended function at the time Yorkville first becomes obligated to make payments of
Operation and Maintenance Costs pursuant to Subsection TM of this Contract, the
Commission may, in its sole and absolute discretion,terminate this Contract, in which
event the Commission shall give notice to Yorkville not less than 20 days in advance
of its intention to terminate this Contract and shall provide Yorkville an opportunity
for a hearing before the Commission prior to the effective date of such termination
United City of Yorkville
Water Purchase and Sale Contract
60
and, upon the concurrence ofam jodtyn[de Commissioners of the Commission
following the Conclusion of such hearing, this Contract shall beofno further force or
effect except for the provisions of Subsection 20.D below, uSk) which provisions this
Contract shall reommin in /u|| force and effect.
C. Payment of Interim Costs. Whether or not the Yorkville Unit System is
ever completed, operable, o, operating, Yorkville ohu|) pay to the Commission all
attorneys', engineering, and administrative [rox, costs, and expenses incurred by the
Connnoisoion for any work related to, or participation in, any regulatory pvoccedino
which shall bc required or requested o[the Commission by the Illinois Department n[
Natural Resources. 0[6oe of Water Resources, or by Yorkville as u result of. or
occasioned by, this Contract and, [uribnr" xbo|| pay to the Commission all attorneys'.
engineering, and administrative Ooso, costs, and expenses incurred by the Commission
in connection with the negotiation, preparation, consideration, and review of this
Contract and in implementing the terms of this [outnsoL including without limitation
the costs of the design and construction of the Commission Connection Facilities. If
the Yorkville Unit Systern has not been completed as and when required by Subsection
20.0 above and the Commission elects. in its sole and absolute discretion,toterminate
this Contract pursuant to Subsection 20.13 above, then Yorkville's payment hereunder
shall be dux and payable immediately ofto, receipt by it of an invoice from the
Commission detailing such costs, after deducting tbcnrbnnn the amount or amounts of
any prepayments made pursuant io Subsection 7.Kof this Contract. lf the amount nr
amounts oFany such prepayments exceed "Yorkvi{|e`s payment obligation hereunder,
United City o[Yorkville
Water Purchase and Sale Contract
dle Cunoroisainn shall refund the difference to Yorkville. |f either(i)the Yorkville Unit
System is completed ox and when required by SuhscotionZU.E3 above orUi\ if not
completed, the Commission does not elect k» terminate this Contract, then Such costs
shall be treated as part of the Connection Facilities Cost provided in Subsection TC of
this Contract.
D. Term. Uo|exo this Contract is sooner terminated by the Commission
pursuant to Subsection 20.13 above,this Contract shall continue in force and effect until
February 24, 20h4.
SECTION 21. L.QVERNING LAW AND VENUE.
This Contract shall be construed exclusively under the applicable laws, but not the
conflicts of |mwa ru|cu` of the State of Illinois. The parties agree that venue for any
litigation arising out of this Contract shall only be proper in the Eighteenth Judicial
Circuit Court, [>uPugm County. \||iuoiu and waive any right, whether statutory or
otherwise,to venue io any other jurisdiction.
SECTKON %2. MUNICIPAL 11OUNDARIES.
Not later than 365 days after the execution of this Contract, Yorkville shall provide the
Commission with: (i) a current list of all parcels within YnrkviUc~u corporate limits,
identified by Property Index Number and common address, (ii) u correct, complete
|cgu| description of the entire boundary of the municipality, and (iii) an aerial
photograph depicting the entire boundary of the Yorkville municipal limits. Yorkville
shall update the iu[bnnadoo in this Section 22 within h0 days ufany changes in its
municipal boundaries.
United City o[Yorkville
Water Purchase and Sale Contract
62
SECTION 23. MODIFICATIONS OR AMENDMENTS.
This Contract shall not be modified or amended in any way except in writing approved
by both parties hereto. No such modification or amendment shall materially impair or
adversely affect the ability or obligation of Yorkville to make payments to the
Commission to meet the Commission's obligations under the Water Supply Contract,
the Contract Customer Contract, and the Bond Ordinances/Resolutions.
SECTION 24. EXHIBITS INCORPORATED.
Exhibits A, B-1, B-2, C, D, E, F, and G to this Contract are hereby fully incorporated
into this Contract as substantive provisions of this Contract.
SECTION 25. EXECUTION IN COUNTERPARTS.
This Contract shall be executed in two counterparts, each of which shall be deemed to
be an original, and each of which shall constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
United City of Yorkville
Water Purchase and Sale Contract
63
IN WITNESS WHEREOF,the parties hereto liave caused their respective corporate
names to be siibscribed hereto and tlieir respective corporate seals to be affixed hereto and
altested by their duly aiithorized officers,alt on the date set opposite their respective
corporate tiames.
D...10^1-4
UNITED CITY OF VILLE
By:
lOryBehland-CityClerk
Date :/^-/7-a3/
DUPAGE WATER COMMISSION
By;
^ft^u^/K
fames P^a^
L^J^
Danna M.Wutidall -Clerk
UnitedCityofYorkville
Water Piirchase and Sale Contract
64
EXHIBIT A
YORKVILLE UNIT SYSTEM
Village of Yorkville
Water Purchase and Sale Contract
EXHIBIT A - YORKVILLE UNIT SYSTEM
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EXHIBIT B-1
YORKVILLE UNIT SYSTEM CONNECTION FACILITIES
United City of Yorkville
Water Purchase and Sale Contract
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EXHIBIT B-1
WATER DELIVERY DATA
DU PAGE WATER COMMISSION
Date: September 18 2024 (data provided by Yorkville consultant working with DWC Consultant)
CUSTOMER NAME United City of Yorkville
DELIVERY POINT (DWC NODE No.) MS 33A
TYPE OF CUSTOMER PAS FACILITY REQUIRED Rate Control Type D
LOCATION AT Illinois Route 71 and Wing Rd Yorkville IL
DWG DESIGN MINIMUM HYDRAULIC GRADE*(USGS DATUM) 824
CUSTOMER'S SYSTEM OVERFLOW ELEV. AND/OR REQUIRED HEAD** 920
CUSTOMER'S STORAGE FACILITY 1.5 MG Elevated
HYDRAULIC DATA
DWC Hydraulic Grade 10 ft.
Flow Rate @ _ Downstream of
Customer's Facility DWC Meter Station
MGD USGS Datum
2032 Avg. Day 1.00 MGD 876
2032 Max. Day 1.70 MGD 885
2050 Avg. Day 2.42 MGD 824
2050 Max. Day 4.11 MGD 875
2050 Peak*** 7.26 MGD
* DWC design minimum hydraulic grade will fluctuate approx. ± 10 feet depending
upon Commission's elevated storage water elevation.
** It is customer's responsibility to verify the system overflow elevation or required
head.
*** 3 x 2050 average day flow or 1500 GPM minimum.
EXHIBIT B-1
WATER DELIVERY DATA
DU PAGE WATER COMMISSION
Date: September 18 2024 (data provided by Yorkville consultant working with DWC Consultant)
CUSTOMER NAME United City of Yorkville
DELIVERY POINT (DWG NODE No.) MS 33B
TYPE OF CUSTOMER PAS FACILITY REQUIRED Rate Control Type C
LOCATION AT 3099 Lehman Crossing Yorkville IL
DWC DESIGN MINIMUM HYDRAULIC GRADE` (USGS DATUM) 836
CUSTOMER'S SYSTEM OVERFLOW ELEV. AND/OR REQUIRED HEAD** 810
CUSTOMER'S STORAGE FACILITY 1.5 MG Elevated
HYDRAULIC DATA
DWC Hydraulic Grade 10 ft.
Flow Rate @ Downstream of
Customer's Facility DWC Meter Station
MGD USGS Datum
2032 Avg. Day 1.50 MGD 878
2032 Max. Day 2.55 MGD 897
2050 Avg. Day 3.64 MGD 836
2050 Max. Day 6.19 MGD 882
2050 Peak*** 10.92 MGD
* DWC design minimum hydraulic grade will fluctuate approx. ± 10 feet depending
upon Commission's elevated storage water elevation.
** It is customer's responsibility to verify the system overflow elevation or required
head.
*** 3 x 2050 average day flow or 1500 GPM minimum.
EXHIBIT B-1
PRELIMINARY PLANS FOR THE YORKVILLE
UNIT SYSTEM CONNECTION FACILITIES
MINIMUM REQUIREMENTS FOR PRESSURE ADJUSTING (PA) STATIONS
AND SCHEMATICS
1. Rate Controllers shall be adjusted and the water distribution shall otherwise
be operated to take a normally uniform flow rate from the DWC system. The
maximum hourly rate should in no case be greater than 1.7 times the
average annual hourly rate based on the current Lake Michigan water
allocation for the PA station. The adequacy of customer system storage
and proper operation of storage facilities to assure uniform take-off is the
customer's responsibility.
2. Designs shall provide for the appropriate fluctuation of customer storage
facility levels to assure uniform take-off. Elevated storage tanks shall be
fluctuated appropriately during sub freezing conditions.
3. Emergency bypass lines, flow rate controllers and system isolation check
valves shall be required in all designs.
4. Altitude valves or other appropriate means for preventing elevated and
ground storage tank overflows are recommended if such provisions do not
already exist in the customer's system.
5. Surge relief facilities for protection of both the customer and DWC facilities
shall be required.
6. the type and design of the PA station will be dependent upon:
a. The difference between, (i) the minimum DWC system pressure
(hydraulic grade) 10 feet downstream of the DWC Metering Station
(MS) and, (ii) the customer's elevated tank overflow or system
pressure.
b. Whether ground storage will be used to receive water at the PA
station.
In general, the recommended design types for the various receiving facility
designs and the differential between the minimum DWC system grade (at
the point of delivery) and the customer system elevated tank overflows or
system pressure are as follows;
Design Type Head (DWC— Customer)
Pressure Reducing (Type A & B) > /= 28 feet
Rate Control (Type C) < 28 feet & >/= 0 feet
Pressure Increasing (Type D) < 0 feet
1
EXHIBIT B-1
PRELIMINARY PLANS FOR THE YORKVILLE
UNIT SYSTEM CONNECTION FACILITIES
7. Where pumping stations are required (Type D), each station shall be
equipped with three (3) pumping units of equal size. Each unit shall have
rated capacity of approximately equal to the average day, year 2020 flow,
at the station. Two (2) pumping units shall have a combined capacity to
provide maximum day, year 2020 flow (1.7 times average day year 2020
flow). The third unit is for standby. A fourth space is shown on the
pumping station (Type D) schematic for an additional pumping unit at the
customer's option.
8. The facility requirements indicated are for illustrative purposes showing
general guidelines and various design functions to be provided. Each
station shall be designed and proper equipment shall be selected to meet
local and specific conditions.
9. Emergency conditions may permit three (3) times average day flow at the
PA based on the year 2020 Lake Michigan Water Allocation or 1500 GPM,
whichever is greater.
10.The Commission will only provide a chlorine residual meeting State and
Federal Standards at the point of delivery. Additional chlorination
facilities, if required, shall be provided by the customer at the customer's
expense.
2
EXHIBIT B-1 YORKVILLE UNIT SYSTEM CONNECTION FACILITIES
PRESSURE REDUCING STATION - TYPE A
1) HOURLY FLOWS SHALL BE UNIFORM THROUGHOUT EACH DAY* AND RATE
NOT EXCEED 1.7 X AVERAGE DAY FLOW AT THE STATION BASED ON
CURRENT YEAR LAKE MICHIGAN WATER ALLOCATION.
2) PRESSURE REDUCING STATION IS REQUIRED IF THE COMMISSION 'S
SYSTEM DESIGN PRESSURE** EXCEEDS THE DESIRED CUSTOMER'S
SYSTEM PRESSURE BY TWELVE (12) P.S. I . (28 FT. ) OR MORE.
3) PRESSURE REDUCING STATION TYPE A - CONNECTIONS TO GROUND
RESERVOIR AND SYSTEM.
A. PRESSURE REDUCING AND CHECK VALVE, AND RATE CONTROLLER
(MAXIMUM FLOW LIMIT CONTROL) ARE REQUIRED.
B. PRESSURE RELIEF FOR BOTH DWC AND CUSTOMER'S SYSTEM IS
REQUIRED.
C. EMERGENCY BYPASS IS REQUIRED.
D. ALTITUDE VALVE WITH PRESSURE SUSTAINING FUNCTION AND
BYPASS (CUSTOMER'S RESPONSIBILITY) ARE RECOMMENDED FOR
GROUND RESERVOIR CONNECTION. PROPER DAILY USE OF THE
RESERVOIR IS REQUIRED.
E. CHLORINATION SYSTEM IS OPTIONAL (CUSTOMER'S
RESPONSIBILITY) .
4) EMERGENCY CONDITIONS MAY PERMIT 3X AVERAGE DAY FLOW AT THE
STATION BASED ON 2020 LAKE MICHIGAN WATER ALLOCATION OR 1500
GPM WHICHEVER IS LARGER.
5) STANDBY PRESSURE REDUCING AND CHECK VALVE ARE REQUIRED.
6) THE FACILITY REQUIREMENTS INDICATED ARE FOR ILLUSTRATIVE
PURPOSE SHOWING GENERAL GUIDELINES AND VARIOUS DESIGN
FUNCTIONS TO BE PROVIDED. EACH STATION SHALL BE DESIGNED,
AND PROPER EQUIPMENT SHALL BE SELECTED TO MEET LOCAL
CONDITIONS AND SITE SPECIFICS.
*ACCOMPLISHED BY SETTING RATE CONTROLLER IN ACCORDANCE WITH
THE CUSTOMER DEMAND.
**DESIGN PRESSURE WILL FLUCTUATE APPROXIMATELY + 10 FEET
DEPENDING UPON COMMISSION'S ELEVATED STORAGE WATER
ELEVATION.
SCHEMATIC OF_ PRESSUR" REDUCING STAT; C. .
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DU PAGE WATER COMMISSION ALVORD, BURDICK & HOWSON
DATE : ENGINEERS CHICPGO
EXHIBIT B-1 YORKVILLE UNIT SYSTEM CONNECTION FACILITIES
PRESSURE REDUCING STATION - TYPE B
1) HOURLY FLOWS SHALL BE UNIFORM THROUGHOUT EACH DAY* AND RATE
NOT EXCEED 1.7 X AVERAGE DAY FLOW AT THE STATION BASED ON
CURRENT YEAR LAKE MICHIGAN WATER ALLOCATION.
2) PRESSURE REDUCING STATION IS REQUIRED IF THE COMMISSION 'S
SYSTEM DESIGN PRESSURE" EXCEEDS THE DESIRED CUSTOMER' S
SYSTEM PRESSURE BY TWELVE (12) P.S. I . (28 FT. ) OR MORE,
3) PRESSURE REDUCING STATION TYPE B - CONNECTIONS TO ELEVATED
TANK AND SYSTEM.
A. PRESSURE REDUCING AND CHECK VALVE, AND RATE CONTROLLER
(MAXIMUM FLOW LIMIT CONTROL) ARE REQUIRED.
B. PRESSURE RELIEF FOR BOTH DWC AND CUSTOMER'S SYSTEM IS
REQUIRED. -
C. EMERGENCY BYPASS IS REQUIRED.
D. ALTITUDE VALVE WITH BYPASS (CUSTOMER'S RESPONSIBILITY)
IS RECOMMENDED FOR ELEVATED TANK CONNECTION. PROPER
DAILY USE OF THE TANK IS REQUIRED.
E. CHLORINATION SYSTEM IS OPTIONAL (CUSTOMER'S
RESPONSIBILITY) .
4) EMERGENCY CONDITIONS MAY PERMIT 3X AVERAGE DAY FLOW AT THE
STATION BASED ON 2020 LAKE MICHIGAN WATER ALLOCATION OR 1500
GPM WHICHEVER IS LARGER.
5) STANDBY PRESSURE REDUCING AND CHECK VALVE ARE REQUIRED.
6) THE FACILITY REQUIREMENTS INDICATED ARE FOR ILLUSTRATIVE
PURPOSE SHOWING GENERAL GUIDELINES AND VARIOUS DESIGN
FUNCTIONS TO BE PROVIDED. EACH STATION SHALL BE DESIGNED,
AND PROPER EQUIPMENT SHALL BE SELECTED TO MEET LOCAL
CONDITIONS AND SITE SPECIFICS .
*ACCOMPLISHED BY SETTING RATE CONTROLLER IN ACCORDANCE WITH
THE CUSTOMER DEMAND.
**DESIGN PRESSURE WILL FLUCTUATE APPROXIMATELY + 10 FEET
DEPENDING UPON COMMISSION' S ELEVATED STORAGE WATER
ELEVATION.
SCHEMATIC OF PRESSURE REDUCING STATIC: .'
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DU PAGE WATER COMMISSION ALVORD, BURDICK 6 H0VJS0*!
DATE: ENGINEERS
EXHIBIT B-1 YORKVILLE UNIT SYSTEM CONNECTION FACILITIES
PRESSURE REDUCING STATION - TYPE C
1) HOURLY FLOWS SHALL BE UNIFORM THROUGHOUT EACH DAY* AND RATE
NOT EXCEED 1.7 X AVERAGE DAY FLOW AT THE STATION BASED ON
CURRENT YEAR LAKE MICHIGAN WATER ALLOCATION.
2) PRESSURE REDUCING STATION IS REQUIRED IF THE COMMISSION 'S
SYSTEM DESIGN PRESSURE" EXCEEDS THE DESIRED CUSTOMER' S
SYSTEM PRESSURE BY TWELVE (12) P.S. I . (28 FT. ) OR MORE.
3) PRESSURE REDUCING STATION TYPE C - DIRECT CONNECTIONS TO
DISTRIBUTION SYSTEM.
A. ALL DIRECT CONNECTIONS FROM DUPAGE WATER COMMISSION
FEEDER MAIN TO DISTRIBUTION SYSTEM SHALL REQUIRED DWC
APPROVAL.
B. MAXIMUM HOUR TAKE-OFF RATE SHALL BE REGULATED TO COMPLY
WITH ITEM 1) REQUIREMENTS. ADEQUACY OF STORAGE
CAPACITY IS CUSTOMER'S RESPONSIBILITY.
C. PRESSURE REDUCING AND CHECK VALVE, AND RATE CONTROLLER
(MAXIMUM FLOW LIMIT CONTROL) ARE REQUIRED.
D. PRESSURE RELIEF FOR BOTH DWC AND CUSTOMER'S SYSTEM IS
REQUIRED.
E. EMERGENCY BYPASS IS REQUIRED.
F. ALTITUDE VALVE WITH BYPASS (AND PRESSURE SUSTAINING
FUNCTION FOR GROUND STORAGE) IS RECOMMENDED FOR STORAGE
CONNECTION (CUSTOMER'S RESPONSIBILITY) . PROPER DAILY
USE OF THE STORAGE IS REQUIRED.
G. CHLORINATION SYSTEM IS OPTIONAL (CUSTOMER'S
RESPONSIBILITY) .
4) EMERGENCY CONDITIONS MAY PERMIT 3X AVERAGE DAY FLOW AT THE
STATION BASED ON 2020 LAKE MICHIGAN WATER ALLOCATION OR 1500
GPM WHICHEVER IS LARGER.
5) STANDBY PRESSURE REDUCING AND CHECK VALVE ARE REQUIRED.
6) THE FACILITY REQUIREMENTS INDICATED ARE FOR ILLUSTRATIVE
PURPOSE SHOWING GENERAL GUIDELINES AND VARIOUS DESIGN
FUNCTIONS TO BE PROVIDED. EACH STATION SHALL BE DESIGNED,
AND PROPER EQUIPMENT SHALL BE SELECTED TO MEET LOCAL
CONDITIONS AND SITE SPECIFICS.
*ACCOMPLISHED BY SETTING RATE CONTROLLER IN ACCORDANCE WITH
THE CUSTOMER DEMAND.
**DESIGN PRESSURE WILL FLUCTUATE APPROXIMATELY + 10 FEET
DEPENDING UPON COMMISSION'S ELEVATED STORAGE WATER
ELEVATION.
SCHENAT IC OFF P'REESSUIRE REE-DUCING
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DU PAGE WATER COMMISSION ALVORD, BURDICK HO`S0
DATE- ENGINEERS ChIC.'.-
EXHIBIT B-1 YORKVILLE UNIT SYSTEM CONNECTION FACILITIES
RATE CONTROL STATION - TYPE D
1) HOURLY FLOWS SHALL BE UNIFORM THROUGHOUT EACH DAY* AND RATE
NOT EXCEED 1.7 X AVERAGE DAY FLOW AT THE STATION BASED ON
CURRENT YEAR LAKE MICHIGAN WATER ALLOCATION.
2) RATE CONTROL STATION IS REQUIRED IF THE DIFFERENCE BETWEEN
THE COMMISSION' S MINIMUM DESIGN PRESSURE" AND THE
CUSTOMER'S DESIRED SYSTEM PRESSURE IS NOT MORE THAN TWELVE
(12) P.S.I . (28 FT.) .
3) RATE CONTROL STATION TYPE D - CONNECTIONS TO ELEVATED TANK
AND SYSTEM.
A. PRESSURE SUSTAINING AND CHECK VALVE, AND RATE
CONTROLLER (MAXIMUM FLOW LIMIT CONTROL) ARE REQUIRED.
B. PRESSURE RELIEF FOR BOTH DWC AND CUSTOMER'S SYSTEM IS
REQUIRED.
C. EMERGENCY BYPASS IS REQUIRED.
D. ALTITUDE VALVE WITH BYPASS (CUSTOMER' S RESPONSIBILITY)
IS RECOMMENDED FOR ELEVATED TANK CONNECTION. PROPER
DAILY USE OF THE TANK IS REQUIRED.
E. CHLORINATION SYSTEM IS OPTIONAL (CUSTOMER'S
RESPONSIBILITY) .
4) EMERGENCY CONDITIONS MAY PERMIT 3X AVERAGE DAY FLOW AT THE
STATION BASED ON 2020 LAKE MICHIGAN WATER ALLOCATION OR 1500
GPM WHICHEVER IS LARGER.
5) STANDBY PRESSURE SUSTAINING AND CHECK VALVE ARE REQUIRED.
6) THE FACILITY REQUIREMENTS INDICATED ARE FOR ILLUSTRATIVE
PURPOSE SHOWING GENERAL GUIDELINES AND VARIOUS DESIGN
FUNCTIONS TO BE PROVIDED. EACH STATION SHALL BE DESIGNED,
AND PROPER EQUIPMENT SHALL BE SELECTED TO MEET LOCAL
CONDITIONS AND SITE SPECIFICS.
*ACCOMPLISHED BY SETTING RATE CONTROLLER IN ACCORDANCE WITH
THE CUSTOMER DEMAND.
**DESIGN PRESSURE WILL FLUCTUATE APPROXIMATELY + 10 FEET
DEPENDING UPON COMMISSION'S ELEVATED STORAGE WATER
ELEVATION.
SCHEMATIC OF PRESSURE INCREASING STATION
TYPE D
U)
w� PUMP BYPASS NOTE CUSTOMER SHALL UPGRADE DISTRIBUTION SYSTEM
AS REQUIRED TO APPROPRIATELY UTILIZE THE
WATER STORAGE FACILITIES.
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(TYP.)
DU PAGE WATER COMMISSION ALVORD, BURDICK 8 HOWSON
DATE: 12-17-BT ENGINEERS CHICAGO
EXHIBIT B-2
COMMISSION CONNECTION FACILITIES
United City of Yorkville
Water Purchase and Sale Contract
EXHIBIT B-2 r
COMMISSION CONNECTIONS FACILITIES
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EXHIBIT C
YORKVILLE UNIT SYSTEM STORAGE REQUIREMENTS
United City of Yorkville
Water Purchase and Sale Contract
EXHIBIT C
CUSTOMER WATER STORAGE REQUIREMENTS
STORAGE 100lo STORAGE
CUSTOMER ALLOCATION REQUIRED SHALLOW PORTION ABOVEOR
EXISTING 2030 ASA BY WELL OFDWC (BELOW)
STORAGE ALLOCATION PERCENTAGE CONTRACT ALLOWANCE STORAGE REQUIREMENT
CUSTOMER (MG) (MGD) OF SYSTEM (MG) (MG)(1) (MG) (MG)
ADDISON 6.75 3.582 3.99% 7.16 0.72 2.50 2.80
ARGONNE 1.60 0.758 0.85% 1.52 0.15 0,53 0,76
BARTLETT 7.50 3.246 3,62% 6.49 0.65 2.26 3.92
BENSENVILLE 3.55 1.907 113% 3.81 0.00 1.33 1.07
BLOOMINGDALE 4.80 2.348 2.62% 4.70 0.47 1.64 2.21
CAROLSTREAM 6.50 3.667 4.09% 7.33 0.73 2.56 2.46
IAWC ARROWHEAD 0.40 0.145 0.16% 0.29 0.03 0.10 0.24
IAWC COUNTRY CLUB 0.20 0.105 0.12% 0.21 0.02 0.07 0,08
IAWC DU PAGE/LISLE 0.76 0.470 0.52% 0.94 0.09 0.33 0.24
IAWC LOMBARD 0.05 0.050 0.06% 0.10 0.01 0.03 (0.01)
IAWC VALLEY VIEW 0.88 0.520 0.58% 1.04 0.10 0.36 0.31
IAWC LIBERTY RIDGE WEST 0.40 0.300 0.33% 0.60 0,06 0.21 0.07
IAWC LIBERTY RIDGE EAST 0.05 0.030 0.03% 0,06 0,01 0.02 0.02
CLARENDON HILLS 1.25 0.818 0.91% 1.64 0,16 0.57 0.35
DARIEN/DPC-SERWF 4,00 3.269 3.65% 6.54 0.65 2.28 039
DOWNERS GROVE 8.00 6.097 6.80% 12.19 1,22 4.25 1.28
Du PAGE COUNTY 2.63 1.483 1.65% 2.97 0.30 1.03 0.99
ELMHURST 15.00 4,083 4.55% 8.17 0.82 2.85 10.50
GLENDALE HEIGHTS 4.70 2.671 2.98% 5.34 0,53 1.86 L75
GLEN ELLYN 3.25 2.562 286% 5.12 0.51 1.79 0.42
HINSDALE 4.50 2,468 2.75% 4.94 0.49 1.72 1.78
ITASCA 3.50 1,486 1.66% 2,97 0.30 1.04 1,86
LISLE 5.50 2,686 3.00% 5.37 0.54 1.87 2.54
LOMBARD 5.60 4.174 4.66% 8.35 0.83 2.91 1.00
NAPERVILLE 43.90 17.454 19.47% 34.91 3.49 12.17 24.65
OAK BROOK 8.00 3.294 3.67% 6.59 0,66 2.30 4,37
OAKBROOKTERRACE 0.50 0.261 0.2W* 0.52 0.05 0.18 0,21
ROSELLE 1.75 1.866 2.08% 3.73 0.37 1.30 (0,31)
VILLA PARK 3.80 1.794 1.99% 3.57 0,00 1,24 1.48
WESTMONT 4.50 2,552 2.85% 5.10 0,51 1.78 1,69
WHEATON 7.26 4.846 5.40% 9.69 0.97 3.38 1.92
WILLOWBROOK 4.00 1.031 1.15% 2.06 0.21 0.72 2.86
WINFIELD 1.60 0.916 1,02% 1.83 0,18 0.64 0.59
WOOD DALE 3.35 1.244 1.39% 2.49 0.25 0.87 1.98
WOODRIDGE 6.15 3.058 3.41% 6.12 0.61 2.13 2.78
YORKVILLE(2) 4.05 2.432 2.71% 4.86 0,49 1.70 1.37
CUSTOMER TOTAL STORAGE 180.23 89.663 100.00% 174.46 16.71 62.50 79.23
DWC SYSTEM STORAGE 62.50
TOTAL CUSTOMER AND DWCSTORAGE 242.73
(1)Customer Shallow Well Allowance and Storage Requirements are audited annually for compliance.
(2)Yorkville is currently in preliminary design phase to add 4,0 MG of new storage in 2027 and decommissioning 0.5 MG storage in 2029.
EXHIBIT D
METER STATION AND ACCESS EASEMENTS
United City ol'Yorkville
Water Purchase and Sale Contract
EXHIBIT D
METER STATION AND ACCESS EASEMENTS
(FORM OF)
DUPAGE WATER COMMISSION
METERING STATION
EASEMENT AGREEMENT
[Meter Station Name]
[PERMANENT REAL ESTATE TAX INDEX NO. XX-XX-XXX-XXX]
Prepared by and Mail to:
Paul D. May, PE
General Manager
DuPage Water Commission
600 East Butterfield Road
Elmhurst, Illinois 60126-4642
630-834-0100
METERING STATION
EASEMENT AGREEMENT
[Meter Station Name]
THIS EASEMENT AGREEMENT, made and entered into this day
of 202_, by and between the DUPAGE WATER COMMISSION, a
county water commission created and existing under the laws of the State of Illinois (the
"Commission") and the[MUNICIPALITY], a unit of local government created and existing
under the laws of the State of Illinois and a customer of the Commission (the "Customer"),
WITNESSETH:
WHEREAS, the Commission and the Customer have entered into a certain Water
Purchase and Sale Contract dated as of October 17, 2024 (the "Contract"); and
WHEREAS, the Contract provides that the Commission is to furnish, install, own,
operate, maintain, and repair certain equipment and devices, together with certain
structures and portions of its water distribution main, including underground feeder
pipeline and related equipment, for properly conveying and measuring the quantity of
Lake Michigan water delivered by the Commission to the Customer at the connection
point provided for under the Contract (collectively referred to as the "Metering Station"),
and
WHEREAS, the Contract provides that the Metering Station is to be located at a
site selected and provided by the Customer, subject to review and approval by the
Commission; and
WHEREAS, the Customer has selected the site legally described in Exhibit 1
attached hereto and by this reference incorporated herein and made a part hereof (the
"Metering Station Easement Premises") for the location of the Metering Station as
generally depicted in Exhibit 2 attached hereto and by this reference incorporated herein
and made a part hereof; and
WHEREAS, the Commission has reviewed the Metering Station Easement
Premises and approved the same for the location of the Metering Station; and
WHEREAS, the Commission has submitted to the Customer for review the
drawings and specifications for the Metering Station; and
WHEREAS, the Commission and the Customer desire to enter into this Easement
Agreement in order to provide the Commission with a sufficient property interest in the
Metering Station Easement Premises to fulfill the provisions and purpose of the Contract;
WHEREAS, the Commission has duly adopted its Ordinance No. [O-XX-XX],
being "An Ordinance Requesting the Intergovernmental Transfer of Easement Rights for
the [Municipality] Metering Station MS-[XXX] Site and Authorizing the Execution of the
[Municipality] Metering Station Easement Agreement," pursuant to the Local
Government Property Transfer Act, 50 ILCS 605/0.01 et sea.; and
WHEREAS, the Customer has duly adopted its Resolution No. [TBD], being "A
Resolution Approving the Intergovernmental Transfer of Easement Rights to the DuPage
Water Commission," pursuant to the Local Government Property Transfer Act, 50 ILCS
605/0.01 et seq.;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and
in the exercise of their powers and authority under the intergovernmental cooperation
provisions of Article VII, Section 10 of the Illinois Constitution of 1970 and the
Intergovernmental Cooperation Act, 5 ILCS 220/1 et seg., and other applicable authority,
the Commission and the Customer hereby agree as follows:
1. The foregoing recitals are hereby incorporated herein as substantive
provisions of this Easement Agreement.
2. The Customer hereby grants, conveys, warrants, and dedicates to the
Commission, its successors and assigns, an exclusive perpetual easement to construct,
furnish, install, own, operate, maintain, test, inspect, remove, repair, and replace the
Metering Station at, in, under, and upon the Metering Station Easement Premises,
together with all reasonable rights of ingress and egress along or across any adjoining
lands of, or under the jurisdiction and control of, the Customer. The Customer herby
further grants, conveys, warrants, and dedicates to the Commission, its successors and
assigns, a non-exclusive perpetual access easement along and across the real property
legally described in Exhibit 1 attached hereto and by this reference incorporated herein
and made a part hereof (the "Access Easement Premises"). The Customer herby further
grants, conveys, warrants, and dedicates to the Commission, its successors and assigns,
a non-exclusive perpetual utility access easement along and across the real property
legally described in Exhibit 1 attached hereto and by this reference incorporated herein
and made a part hereof (the "Utility Access Easement Premises").
3. The Metering Station shall be not located, constructed, or maintained in any
manner not in substantial conformity with Exhibit 2 without the express consent of the
Customer, which consent shall not be unreasonably withheld.
4. The Customer hereby further grants to the Commission a temporary
construction easement for the installation of the Metering Station upon, along, and across
the real property legally described in Exhibit 3 attached hereto and by this reference
incorporated herein and made a part hereof (the "Subject Property"). Said temporary
construction easement shall be used by the Commission only during periods of actual
installation, replacement or repair activity and for any necessary restoration of the
Metering Station Easement Premises.
5. The Commission shall exercise the easement rights hereby granted with
due care, and shall not unreasonably interfere with, damage, or harm any Customer
property located upon the Subject Property or Customer's adjacent property.
6. After construction of the Metering Station, the Metering Station Easement
Premises shall be restored in accordance with the drawings and specifications for the
Metering Station. All fences, roads, landscaping, and improvements shall be restored to
former condition by the Commission if disturbed or altered in any manner by construction
or maintenance activities of the Commission.
7. The Customer hereby reserves the right to use the Metering Station
Easement Premises, the Access Easement Premises, the Utility Access Easement
Premises, and its adjacent property in any manner that will not prevent or interfere in any
way with the exercise by the Commission of the rights granted hereunder; provided,
however, that the Customer shall not in any manner disturb, damage, destroy, injure,
obstruct, or permit to be obstructed the Metering Station Easement Premises, the Access
Easement Premises, or the Utility Access Easement Premises without the express prior
written consent of the Commission, nor shall the Customer permanently or temporarily
improve, damage, or obstruct the Metering Station Easement Premises, the Access
Easement Premises, or the Utility Access Easement Premises in any manner that would
impair the exercise by the Commission of the rights hereby granted.
8. To the fullest extent permitted by law, the Customer agrees to indemnify
and defend the Commission with respect to any and all claims or damages to persons or
property which may arise from the acts of the Customer, or its agents or employees, at
the Metering Station Easement Premises, the Access Easement Premises, the Utility
Access Easement Premises, the Subject Property, and it's adjacent property in
conjunction with its rights pursuant to Paragraph 7 hereof, and, except as otherwise
provided in the Contract, the Commission agrees to indemnify and defend the Customer
with respect to any and all claims of damages to persons or property which may arise
from the of the Commission, or its agents or employees, at the Metering Station
Easement Premises, the Access Easement Premises, the Utility Access Easement
Premises and the Subject Property in conjunction with its rights pursuant to Paragraphs
2, 4, 5 and 7 hereof. The Customer shall provide to the Commission, and the Commission
shall provide to the Customer, a certificate of insurance or proof of self-insurance
coverage as evidence of its continuing ability to meet the obligation established in this
Paragraph, and both shall maintain such coverage at all times.
9. This Easement Agreement shall constitute and stand in the place of all
Customer permits required of the Commission or its contractor to construct, furnish,
install, own, operate, maintain, test, inspect, repair, remove, or replace the Metering
Station at, in, under, and upon the Metering Station Easement Premises, and the
Customer hereby agrees to execute any and all additional documents, approvals,
waivers, or consents, if any, that may be reasonably necessary for the Commission to
secure any permits required from any county, state, or federal agency for or in connection
with constructing, furnishing, installing, owning, operating, maintaining, testing,
inspecting, repairing, removing, or replacing the Metering Station.
10. In the event that the Contract is terminated without renewal with respect to
the Customer, the Commission shall, within 90 days execute and deliver to the Customer
an appropriate document evidencing the termination of this Easement Agreement and
releasing the easement rights hereby granted. The Commission may, within said 90 day
period, in its own discretion, and at the Customer's expense, remove the Metering Station
from the Metering Station Easement Premises. If the Commission fails to remove the
[Municipality]Metering Station, as aforesaid,the Customer may take title to the Metering
Station.
11. All rights, title, and privileges herein granted, including all benefits and
burdens, shall run with the land and shall be binding upon and inure to the benefit of the
parties hereto and their respective grantees, successors, assigns, and legal
representatives.
12. All representations and warranties contained herein shall survive the
execution of this Easement Agreement and the recordation hereof and shall not be
merged.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their proper representatives duly authorized to execute the same.
DUPAGE WATER COMMISSION
ATTEST:
By:
Paul May, PE
General Manager
Danna Mundall
Clerk
[MUNICIPALITY]
By:
[NAME]
[VillagelCity President/Mayor]
ATTEST:
By:
Its:
EXHIBIT 9
LEGAL DESCRIPTIONS OF THE
METERING STATION EASEMENT PREMISES
PERMANENT METER STATION EASEMENT:
[INSERT LEGAL DESCRIPTION PROVIDED BY CUSTOMER]
PERMANENT ACCESS EASEMENT:
[INSERT LEGAL DESCRIPTION PROVIDED BY CUSTOMER]
EXHIBIT 1
LEGAL DESCRIPTIONS OF THE
METERING STATION EASEMENT PREMISES
PERMANENT UTILITY ACCESS EASEMENT:
[INSERT LEGAL DESCRIPTION PROVIDED BY CUSTOMER]
[NOISSIWWOO 3H1 AS f7301AOdd]
NOUVIS ONI213i3W �JOJ SNVId
Z 1181HX3
EXHIBIT 2-A
MS ELEVATION DRAWINGS
[PROVIDED BY THE COMMISSION]
EXHIBIT 2-B
MS FLOOR PLANS
[PROVIDED BY THE COMMISSION]
EXHIBIT 2-C
MS SECTION DRAWINGS
[PROVIDED BY THE COMMISSION]
EXHIBIT 3
LEGAL DESCRIPTION OF THE TEMPORARY CONSTRUCTION
EASEMENT PREMISES
TEMPORARY CONSTRUCTION EASEMENT:
[INSERT LEGAL DESCRIPTION PROVIDED BY CUSTOMER]
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
1, , a Notary Public in and for said County, in the
State aforesaid, do hereby certify that Paul D. May, personally known to me to be the
General Manager of the DuPage Water Commission, and Danna M. Mundall, personally
known to me to be the Clerk of the DuPage Water Commission, and personally known to
me to be the same persons whose names are subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that he/she signed, sealed,
and delivered said instrument as his/her free and voluntary act, and as the free and
voluntary act of said Commission, for the uses and purposes therein set forth.
Given under my hand and official seal this day of 202_.
Notary Public
My Commission Expires:
STATE OF ILLINOIS )
) SS
COUNTY OF [ ] )
I, a Notary Public in and for said County, in the
State aforesaid, do hereby certify that[Name], personally known to me to be the [Title]
of the [Municipality], and , personally known to me to be the
of the Village of Oswego, and personally known to be the same
persons whose names are subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged that they signed, sealed, and delivered said
instrument as their free and voluntary act, and as the free and voluntary act of said Village,
for the uses and purposes therein set forth.
Given under my hand and official seal this day of 202_.
Notary Public
My Commission Expires:
STATE OF ILLINOIS
) SS
COUNTY OF KENDALL )
I, �On CA CIS 1101 a Notary Public in and for said County, in the
State aforesaid, do hereby certify that John Purcell personally known to me to be the
Mayor of the United City of Yorkville, and Jori Behland, personally known to me to
be the City Clerk of the United City of Yorkville, and personally known to be the
same persons whose names are subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that they signed, sealed, and
delivered said instrument as their free and voluntary act, and as the free and voluntary
act of said Village,for the uses and purposes therein set forth.
-LAGiven under my hand and official seal this day of vGW 2024
OFF93ILWALL Notary Public
YOMCA CNM
NOTARY PUBLIC,STATE OF ILLINOIS _ r-
IuIY CO
MISSION EXPIREs:8I5=5 My Commission Expires: �_
7 JAW.1/1f' R
AUM3 OW
EXHIBIT E
CAPITAL COST RECOVERY CHARGE
United City of Yorkville
Water Purchase and Sale Contract
EXHIBIT E
CAPITAL COST RECOVERY CHARGE
DuPage Water Commission
Calculation of Capital Cost Recovery Charge as of May 1,2024
For Yorkville
Fixed Assets(Audited as of 04-30-2024)
Land $ 11,728,902
Infrastructure 383,618,530
Buildings 110,194,197
Office Equipment 4,763,332
Machinery 27,061,530
Vehicles 1,055,314
CIP 15,415,869
Total $553,837,674
Less:Feeder Mains&Meter Stations 94,321,158
459,516,516
Less:Total Rebates 106,326,287
Total $353,190,229
Total Capital Cost
Recovery Charge
MGD
Oswego(CY2022-CY2023 Avg) 2.505 3,128% $ 11,047,790
Montgomery(CY2022-CY2023 Avg) 2.267 2.831% S 9,998,815
Yorkville(CY2022-CY2023 Avg) 1.817 2.269% $ 8,013,886
DuPage Water Commission(CY2022-CY2023 Avg) 73.483
Tota 1 80.071 $ 29,060,491
EXHIBIT F
SCHEDULE OF EVENTS
United City of Yorkville
Water Purchase and Sale Contract
EXHIBIT F
YORKVILLE ILLUSTRATIVE SCHEDULE OF EVENTS
WEEKS>> 0 20 24 26
I. YORKVILLE DUTIES (CONTRACT SIGNED) Convey all required
easements and
Commence interests to DWC
A. Property Interests acquisition of (Section 10G)
necessary interests
(Section 10G)
------------------------- ------------------------ ------------------------------ ---------------------------
--------------------------------------------------
B. Yorkville Connection Submit plans and DWC completes
Facilities specs for DWC review
review (Section 10A)
(Section 10A)
--------------------------------------------------
------------------------- ------------------------ ------------------------------ ---------------------------
C. Water Storage Facilities
(Not Applicable)
II. DWC DUTIES
A. Property Interests
-------------------------------------------------- ------------------------- ------------------------ ------------------------------ ---------------------------
B. Commission Connection Commence Design
Facilities upon receipt of all
required easements
and interests
(Section 10H)
II. OTHER EVENTS
A. Delivery of Water
-------------------------------------------------- ------------------------- ------------------------ ------------------------------ ---------------------------
B. Payment of Costs other than
O&M
-------------------------------------------------- ------------------------- ------------------------ ------------------------------ ---------------------------
C. Payment of O&M Costs
1
EXHIBIT F
YORKVILLE ILLUSTRATIVE SCHEDULE OF EVENTS
WEEKS>> 41 52 156 185
I. YORKVILLE DUTIES
A. Property Interests
--------------------------------------------- ---------------------- -------------------- ------------------ ---------------------------------
B. Yorkville Connection Commence Complete
Facilities Projected IEPA construction of construction
and Local Customer of Customer
Approvals Connection Connection
Facilities Facilities
(Section 10C) (Section 10C)
--------------------------------------------- ---------------------- -------------------- ------------------ ---------------------------------
C. Water Storage Facilities
(Not Applicable)
II. DWC DUTIES
A. Property Interests
--------------------------------------------- -------------------- -------------------- ------------------ ------------------------------------
Complete Construction of
B. Commission Connection Commission Connection
Facilities Facilities(May 1,2028)
III. OTHER EVENTS
A. Delivery of Water
Commence Delivery of
Lake Water
--------------------------------------------- ---------------------- ---------------------- ------------------ --------------------------------
B. Payment of Costs other Yorkville's First payment
than 0&M due at 11t billing cycle after
earlier of delivery of water
or 12 months after
Commission Connection
Facilities substantially
completed.
(Section 7M)
--------------------------------------------- ---------------------- ---------------------- ------------------ --------------------------------
C. Payment of O&M Costs Yorkville's First payment
due at 15t billing cycle after
substantial completion of
Commission Connection
Facilities(Section 7M)
2
EXHIBIT G
WATERLINK PROJECT ESCROW INTERGOVERNMENTAL AGREEMENT
United City of Yorkville
Water Purchase and Sale Contract
WATERLINK PROJECT
ESCROW INTERGOVERNMENTAL AGREEMENT
This VVoUcrLiok Project Escrow lniergovcmmonnu1a| /tgrceoncut (the -^VVotcd-ink Project
Escrow /\grccrncn[` orthis -&grecnzeu1")) is dated the 17mdoy of October 2024 between the
Village oF Montgomery(~'Montgmroery^^),the Village of Oswego(-()owcgo"),and the United City
of Yorkville (~Yorkvi||c") (Oswego, Montgomery, and Yorkville are collectively referred to
herein as tile"Waterl-ink Communities")and the DuPage Water Commission(the"Commission"),
a county water commission and public corporation Linder Division 135 of Article I I of the Illinois
Municipal Code. 65 l[CS 5/11-135'1 e/ xoy., and the Water Commission Act o[ 1985, 70 |LC8
3720/0.01 e/xey. (tile**Acts").
WITNESSETH^
WHEREAS,the Commission has been organized under the Acts to supply water within its
territorial limits, and
WHEREAS, the Waicd~ink Con\nouobicm currently own and operate municipal drinking
vvatcrsYuteo\s served by wells that extract source water from the Ironton-Galesville aquifer-, and
WHEREAS, the VVatcrLink Communities are within the territorial limits of the
Commission, and
VV86RE/\S, the WatcrLink Communities intend to change from the Ironton-Galesville
groundwater source to Lake Michigan source vvutnr^ through water purchase and sale agreements
with the Commission, and have applied for and been awarded Lake K4iobiguo Water Allocation
Permits from the State nfIllinois Department o[Natural Resources, Office of Water Resources for
each discrete and non-contiguous service area served by each VVa1crLink Community's Unit
System ("Service /\rc4"); and
WHEREAS, the VVatorl-ink Communities have conducted extensive study and have
concluded that the nnout oustuinub|e alternative water source to serve the YYotorLiukConmnnunides
through the municipal waterworks systems currently serving the VVutnrLiokConuoouni1ies, as well
as any extensions or improvements of those sysicnou, is Luke Michigan water from the
Commission; and
WHEREAS, the Commission owns and maintains waterworks syatexn osoxupp|iCrof
Lake Michigan water to member customers that contract for such service (^�Commiosion`s
Waterworks 8yytexn"); and
WHEREAS, the parties mcck to complete the |nmpvovcnucnta necessary to connect the
Commission's VVok:nvorks System to the VVaicrLink Conunnuoideo^ individual Unit Systems in
2O28', and
9/H[QE&8, the Commission has entered into a Water Supply Coninuo| with the City of
Chicago to purchase Lake Michigan vvutcr uu[Ocien1 to meet the vvoier supply needs of the
Commission and its customers; and
WHEREAS, the Cunornixsinn`o Water Supply Contract with the City ofChicago is set to
expire inZ04|, and the Commission ia currently: (|)exploring on alternative solution bzobtaining
Lake Michigan water-, and (2) in discussions and negotiations with the City of Chicago for a new
Water Supply Contract; and
WHEREAS, to carry out their duties and responsibilities, and desire to c,cmic a nuethod of
providing anadequate supply o[Lake Michigan water tn the Service Area, the Commission and
each of the VVate,Link Connmnunitiew" contcnnporuncoux|y with this Agreement are entering into
Water Purchase and Gu|c Contracts Kbc ^^YVutor Purchase /\greerncnty`l and this /\gvummnrnt
incorporates the defined terms of the Water Purchase Agreements unless nthomvixc specified
herein; and
WHEREAS,to become a member of the Commission and comply with the Water Purchase
Agreements, each VYaterLinkCnnnmnuuity must pay its proportional share of the costs for the
property owned hy the Commission; and
WHEREAS, oontcnnporoneouu|y with this Agreement. the VVw1cr[iuk Communities and
the Commission are each entering into u Capital Cost Recovery Agreements that establish the
terms and conditions for financing each YVu1erLink Community's proportional share of the costs
for the property owned by the Commission; and
Yvmo,Liuk Project Escrow|Ux
Page%"[\4
WHEREAS, contemporaneously with this Agreement, each WaterLink Community and
the Commission are entering into an Intergovernmental Agreement Concerning the Development
of Connection Facilities to Implement Water Service (the "Development Agreement''), and
WHEREAS, the WaterLink Communities intend that certain provisions within this
Agreement be used only to the extent that one or all of the WaterLink Communities have failed to
properly fund this Agreement after notice has been provided in accordance with this Agreement;
and
WHEREAS, the Commission will incur in connection with (i) the design, bidding,
contracting, managing, and actual construction, installation, removal, relocation, replacement,
extension, or improvement of the Connection Facilities, including without limitation equipment
required for the operation of the Connection Facilities and all administrative, financing,
supervisory, inspection, engineering, surveying, and legal fees, costs, and expenses associated
therewith; (ii) the acquisition and divestment of lands, easements, and rights of way over lands
and waters necessary for the construction, installation, removal, relocation, replacement,
extension, or improvement of the Connection Facilities, and all administrative, title, surveying,
and legal fees, costs, and expenses associated therewith, and (iii) the review and processing of
plans and agreements for the construction, installation, removal, relocation, replacement,
extension, or improvement of the Connection Facilities and in connection with the negotiation,
preparation, consideration, and review of this Contract, including without limitation all legal,
engineering,consulting, and administrative fees,costs, and expenses associated therewith; except
as any of the above are included in Operation and Maintenance Costs ("Connection Facilities
Cost"); and
WHEREAS, the Commission and the WaterLink Communities have previously entered
into First and Second Escrow Intergovernmental Agreements (the "Prior Escrow Agreements")
for what is defined under those Prior Escrow Agreements as Phase I and Phase 2 Services; and
WHEREAS, prior to the execution of documents requiring the expenditure of Commission
Expenses,the Commission requires the WaterLink Communities to establish an additional escrow
fund with the Commission as stated herein to provide a funding source for the Commission
Expenses beyond those incurred for the Phase 1 and Phase 2 Services; and
WaterLink Project Escrow IGA
Page 3 of 14
WHEREAS. Pursuant to the Dcvdopnnent /\�rCerncnL the �Votod-ink Communities will
hc responsible for the Connection Facilities Cost: and
VVHCR[&S, the VVu0cr[ink Communities have previously agreed tneach Municipo|ity^m
percentage share of the Connection Facilities Cost pursuant ioail Intergovernmental Cost Share
Agreement (the **Cost Share Agreement-). The WaterLink Communities agree that the costs paid
into the escrow account Linder this VVotcr[ink Project £auvovv /\grccnncni will onirn`rthc Division
of Financial Responsibilities/Allocation of Costs set forth in the Cost 8huno /\g»ccnlonL
Specifically. Montgomery cmnornita and agrees |o pay 24.42%, Yorkville commits and agrees to
pay 40.22Y6, and Oswego commits and agrees io pay 35.3696. The Commission is not aparty to
the Cost Share Agreement and has no responsibility or liability as to ally true-up oradjusted
accounting between the VVmterLink Communities; and
\VBEBE&8. pursuant to &ciic|c V||, Section 10 of the Illinois Constitution of 1970, and
the Intergovernmental Cooperation Act, 5 |LC8 220/1 etseq., the Commission and the VVn|rrLink
Communities are authorized to enter into this VVuterLiuk Project Escrow Agreement.
NOW, TBE8LE[()}tE, in consideration of the foregoing recitals and of the mutual
covenants and agreements herein contained, the VVatcrLink Communities and the Commission
hereby agree uyfollows:
l. The foregoing recitals are by this reference incorporated herein and made u part
hereof oaif fully set forth herein. Further, tothe extent any capitalized terms io this Agreement
are mci hJdh as a defined tcnn in the Water purobuae Agreements, the capitalized terms in this
Agreement shall have the same meaning iu this A�rccnocotas the definition iu the ��atccPurchase
Agn:cnoeotS.
2. The Commission will establish a segregated escrow account for the sole purpose of
funding the Connection Facilities Cost (the ^^VVute,|ink Project Escrow Account"). The
WutcrLink Communities will each deposit into the VVo1edink Project Enonov/ Account all
payments necessary to fund the Connection Facilities Coat. Any nznzuiu|ng funds from the prior
Escrow Agreements will remain in the related escrow account, and any funds not expended or
necessary for Phase I and Phase 11 Services, when those phases are complete, may be transferred
YVvterLiuk Project Escrow|Gx
Page 4v[:*
to the VVoted.iok Project Bacunv Account, unless otherwise directed by tbc \Yaiel1'ink
Communities.
3. The Commission will draw from the VVoicd.ink Project Escrow Account hnpay for
or reimburse any Connection Facilities Cost incurred.
4. TbcVVuic,Liok Project Escrow Account will he insured and interest-bearing. and
the Commission will provide the VVatorCink Communities with ()uoMcdy Statements within
twenty-one (21) days after the end of each quarter: (I) showing, tile starting and ending balances
for that quarter in tile Wo(orLinkProject Escrow Account;and(2)detailing the costs ofConnection
Facilities Cost incurred Co, that quarter including any amounts received or paid from the
VVute[Link Project Esc,ovv/\couunL The Wuted-ink Communities will have the right to conduct
audits for three years after the termination of this \sotcrLinkProject Escrow Agreement relative
to the VVuied.ink PrQject Escrow Account.
5. The Commission will keep u record ofall pay requests from the VVatcrLink Project
Escrow Account for reimbursement o[Connection Facilities Cost incurred (tile -Pay Request")
and sufficient documentation nf the Connection Facilities Cost incurred in support of the Pay
Request. Thodncunnmntution will be vrtu|ncd for review by the WaicrLink Communities upon
request and included within tile Quarterly Statements issued 6v the Commission.
|[at any time during the term of this VVmtcrLink Project Esc,ovv &Anceoneut, thebo}uocrin
the VVa1erLinkProject Escrow Account is less than Thirty Million Dollars ($30,UOO°O0O.O0) (the
~^Mininnumn Balance Amount"), the Commission will notify the \Vatcr[ink[omomnunidcs. Within
thirty (30) days o[the Commission notifying the YVatcrLinkComuonunities under this Paragraph 5,
the Watcr[inkCnnlnmunidcs will each pay the Commission its proportionate share (as set forth in
the Coat Share &grccnmcnd of the request toensure that the Minirounn 8a\oucc is cuc1. Failure to
make such payment when required under this Paragraph 5 shall be considered a default of this
Agreement by the VVuterCinkCommunities.
6. The Cnrnmninoimu vvi(|, after the execution and delivery of this Agreement, make
available as a line of credit to the WaterLink Communities an amount not to exceed $21,000,000
vvutorLiok Project Escmm,|GA
Page 5ol'/4
(the "Commitment Amount') to pay a portion of the Connection Facilities Cost as defined in the
Water Purchase Agreements. The actual amounts of money borrowed by each of the WaterLink
Communities pursuant to the Commitment Amount will constitute the "Line of Credit."
7. The WaterLink Communities will repay the principal balance of the Line of Credit,
plus accrued and unpaid interest at the Interest Rate set forth in Paragraph 8 of this Agreement
from the Interest Commencement Date through the Line of Credit Payment Commencement Date
(the"Capitalized Interest"),as those terms are hereinafter defined on the unpaid principal balance,
and any Capitalized Interest, of the Line of Credit from and after the Line of Credit Payment
Commencement Date, as that term is hereinafter defined, in 240 monthly installments,
commencing on the 10th day of every month (the "Monthly Payment Date") commencing on the
Line of Credit Payment Commencement Date as hereafter defined in Paragraph 9 and continuing
in successive monthly installments on each Monthly Payment Date in each month thereafter, with
the final payment of any unpaid interest and principal, if not sooner paid, on the 240th Monthly
Payment Date. Each of the 240 monthly installments of principal on the Line of Credit will be
determined as of the last day of the month preceding the Monthly Payment Date in any given year
during the term of the Line of Credit (a "Principal Determination Date") and will be determined
by dividing the unpaid principal balance, and any Capitalized Interest, of the Line of Credit as of
the applicable Principal Determination Date by the number of monthly installments of principal
remaining to be paid during the term of the Line of Credit. The accrued and unpaid interest will
be capitalized on a monthly basis until the Line of Credit Payment Commencement Date. There
will be no penalty for prepayment.
8. Interest on the unpaid principal balance, and any Capitalized Interest, of the Line
of Credit will accrue at a rate(the"Interest Rate")that is equivalent to the highest yield to maturity
interest rate earned by the Commission (based on all investments) as reported monthly on the
Commission's Schedule of Investments for the immediately preceding fiscal year(May I — April
30) as determined by the Commission(the"Earned Interest Rate") plus one percent(1%). Interest
will only accrue on money actually borrowed under Paragraph 6 of this Agreement and will begin
to accrue when the Commission makes its first draw on the Line of Credit for the WaterLink
Communities (the "Interest Commencement Date"). The Interest Rate for each year that the Line
Watert_ink Project Escrow IGA
Page 6 of 14
of Credit remains outstanding will be calculated on the basis of a calendar year consisting of 360
days of twelve 30-day months and will be adjusted on May 1'`of each year,and will be applied to
the outstanding unpaid principal balance, and any Capitalized Interest, as determined on the most
recent Principal Determination Date,will be paid commencing on the Monthly Payment Date,and
continuing on the Monthly Payment Date each month thereafter until the principal balance of the
Line of Credit and all interest thereon has been paid in full.
9. Payments of principal and interest, including Capitalized Interest, will begin no
later than the 10`'day of the first month after the first delivery of potable, filtered water drawn
from Lake Michigan to any of the WaterLink Communities individual Unit Systems as that term
is defined in the Water Purchase Agreement(the"Line of Credit Payment Commencement Date").
10. Payments of the principal and interest will be made in lawful money of the United
States of America in federal or other immediately available funds.
11. If at any time, the Commission receives invoices incurred arising out of the
Connection Facilities Cost for which there are insufficient funds in the Construction Escrow
Agreement, the Commission will pay the actual costs incurred from the Connection Facilities Cost
Line of'Credit. The Commission payments for the Connection Facilities Cost will be paid out of
the Commitment Amount and will be immediately considered part of the Line of Credit. The
Commission may make payments from the Line of Credit no more than once per month, on the
10`h day of the month., provided that the Commission will give the WaterLink Communities notice
(which notice must be received by the WaterLink Communities prior to 10:00 a.m., local time, 7
days prior to the requested borrowing date), specifying the amount to be paid and the payment
date. It is anticipated that only a single borrowing will be requested each month. Each borrowing
pursuant to this Agreement will be in an aggregate principal amount less than the Available
Commitment. For purposes of this Paragraph 11, the Available Commitment at a particular time
is an amount equal to the difference between the Commitment Amount and the aggregate principal
balance of the Line of Credit then outstanding.
12, Subject to the limitations of Paragraph 12, the WaterLink Communities may,
without premium or penalty, upon at least one business days irrevocable notice to the
WaterLink Project Escrow IGA
Page 7 of 14
Commission, specifying the date and amount of prepayment, make such prepayment; and the
payment amount specified in such notice will be due and payable on the date specified therein.
The proceeds of any such prepayment will be applied by the Commission first, to the payment of
accrued and unpaid interest, if any,on the Line of Credit,and second, to the payment of the unpaid
principal balance of the Line of Credit. The WaterLink Communities will not be entitled to, nor
receive any credit for, interest on any such prepayment.
13. The proceeds of the Line of Credit will be devoted to and used with due diligence
for the purpose of paying the Connection Facilities Cost identified in Exhibit A; provided,
however, that where an unexpended balance remains in any one or more of the various cost
components of the Connection Facilities Cost detailed in Exhibit A attached hereto, such balance
may be transferred and expended, in whole or in part, to and for any other cost component of the
Connection Facilities Cost detailed in Exhibit A attached hereto.
14. The Covenants set forth in Subsections 9A, 913, 9C, and 9D of the Water Purchase
Agreements are incorporated into this Agreement by reference.
15. This WaterLink Project Escrow Agreement will terminate,and any monies not paid
or incurred for Connection Facilities Cost, including any interest therein will be returned to the
WaterLink Communities, unless mutually agreed to by the WaterLink Communities and the
Commission, upon the earlier of:
a. upon written request by the WaterLink Communities, a written direction that is issued by
the General Manager of the Commission that the funds are no longer needed for any
Connection Facilities Cost, which direction shall not be unreasonably withheld; or
b. upon the WaterLink Communities' written notification to the Commission that they are no
longer pursuing the purchase of Lake Michigan water from the Commission, and the
payment of all the Connection Facilities Cost.
No monies will be returned to the WaterLink Communities until a frill accounting has been
completed of the expenditures incurred under this WaterLink Project Escrow Agreement.
WaterLink Project Escrow IGA
Page 8 of 14
16. If any WaterLink Community or the Commission defaults in the full and timely
performance of any of its obligations hereunder, the non-breaching entity or entities, after first
providing written notice to the breaching entity of the event of default and providing the breaching
entity ten (10) days to cure the same, will be entitled to invoke its legal rights and remedies as a
result thereof, including, but not limited to, its equitable remedy of specific performance. THE
FOREGOING NOTWITHSTANDING, NO ENTITY WILL BE LIABLE TO ANOTHER
ENTITY OR ANY OF ITS AFFILIATES,AGENTS,EMPLOYEES,OR CONTRACTORS FOR
SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES.
17. There are no third-party beneficiaries of this WaterLink Project Escrow Agreement
and nothing in this WaterLink Project Escrow Agreement,express or implied, is intended to confer
on any person other than the Parties hereto (and their respective successors, heirs, and permitted
assigns),any rights, remedies, obligations, or liabilities.
18. Any notices under this WaterLink Project Escrow Agreement will be personally
delivered, delivered by the deposit thereof in the U. S. Postal Service,postage prepaid, registered,
or certified, return receipt requested, or by overnight courier service to the Party at the address
listed below or at another address hereafter designated by notice, or by email transmission. Any
such notice will be deemed to have been delivered and given upon personal delivery or delivery
by a nationally recognized overnight courier service, or deposit with the United States Postal
Service or upon receipt of written confirmation that facsimile or email transmission has been
successfully completed:
If to the Commission:
Paul D. May, P.E., General Manager
DuPage Water Commission
600 E. Butterfield Road
Elmhurst, IL 60126
Email: mavrcizdpwc.org
WaterLink Project Escrow IGA
Page 9 of 14
With a copy to:
Phillip A. I-Uetkehans
Luetkehans, Brady. Garner&Armstrong, LLC
105 E. Irving Park Road
Itasca, IL 60143
Email: Val6ii1bgalaw.com
If to the WaterLink Communities:
Village Administrator
Village of Oswego
100 Parkers Mill
Oswego, IL 60543
Email: info(c-t),oswegoil.org
With a copy to:
David J. Silverman
Village Attorney
Mahoney, Silverman, & Cross. LLC
126 South Main Street
Oswego, Illinois 60543
Village Administrator
Village of Montgomery
200 N River Street
Montgomery, IL 60538
Email: zoephel(aDinontgomeryii.org
With a copy to:
Laura M. Julien
Village Attorney
Mickey Wilson, Weiler, Renzi, Lenert, & Julien. PC
140 Municipal Drive
Sugar Grove, IL 60554
WaterLink Project Escrow 1GA
Page 10 of 14
City Administrator
United City of Yorkville
651 Prairie Pointe Drive
Yorkville, IL 60560
Email: bolson@yorkville.il.us
With a copy to:
Kathleen Field Orr& Associates
Kathleen Field Orr
1804 North Naper Blvd.,Ste. 350
Naperville,IL 60563
With a copy to:
Irene Schild Caminer
Caminer Law, LLC
2612 W. Sunnyside Ave.
Chicago, IL 60625
Email: Irene@caminel•law.com
19. Each WaterLink Community will hold the Commission harmless and defend the
Commission from any claims or litigation that arise out of the engineering, construction, property
acquisition, and easement acquisitions f'or the Connection Facilities being constructed for the
WaterLink Communities due to one of all of the WaterLink Communities' failure to comply with
the payment obligations arising under this WaterLink Project Escrow Agreement.
20. Miscellaneous.
a. This WaterLink Project Escrow Agreement shall be deemed to supplement the
Water Purchase Agreements in connection with the supply of Lake Michigan
water to the Waterlink Communities' individual Unit Systems. If there is any
other conflict or inconsistency between the terms of this Agreement and the terms
of the Water Purchase Agreements, then the terms of this WaterLink Project
Escrow Agreement shall control. The WaterLink Communities shall at all times
comply with all terms and conditions of the Water Purchase Agreements except
as otherwise provided in this Agreement.
WaterLink Project Escrow IGA
Page 11 of 14
bExcept as provided herein,the WaterLink [ommunities and the Commission will
not assign this \Vutc,Liok Project EsurovvAgrconnrniorany ,iabto,p,iviicgcuny
VYuLed~ink Communities and the Commission may have under this VVatcr[ink
Project Escrow Agreement without the prior written consent o[a|| Parties hereto,
not inbe unreasonably withheld conditioned ordelayed.
c. This VVutcrLink Project Euc,uv/ Agreement shall be governed by and construed
exclusively under the applicable laws, but not the conflict of |uvvs rules, of the
State nfIllinois. \/cnuc for any litigation arising Out o[this Agreement shall only
be proper iuthe Eighteenth Judicial Circuit Court. QuPagcCouniy, Illinois.
d. The pemon(y) executing this Watc,l-inkProject Escrow Agreement on behalf of'
tile Parties hereto vvacruni that: (i) each YV4tcrLink Community and the
Commission are duly organized and cuimdug; (ii) the individual signing is duly
authorized to execute and deliver this Waic,Link Project 6ycn)vv Agreement Oil
behalf o[said VVuicrLiuk [unornunity or the Commission: (iii) by so executing
thiuVVutcrLink Project Escrow Agreement, such VVuUcrLiuk Community and the
Commission are formally bound to the provisions and conditions contained in this
YVa\erLink Project Escrow Agreement; and (iv) the entering into this VVaterLiuk
Project Escrow Agreement by a Waterl-ink Community and the Commission does
not violate any provision of any other agrconncni to which said VVatcrLink
Community and the Commission iobound.
c. Each VVatcrLinkComnuluo|1y and the Commission acknowledge that itmay be
necessary to execute documents other than those specifically referred to herein in
order to complete the ohiccdvow and requirements that are act forth in this
VVa0crl-ink Project Escrow Agreement. Each VVatc[Link Community and the
Commission hereby agree to cooperate with each other bY executing such other
doou,nun1u or taking such other actions as may be reasonably necessary to
complete the objectives and requirements set forth herein in accordance with the
intent of each VVutcrl-ink [onnnnunity and the Commission aoevidenced by this
VVa1erLink Project Bsopov/ /\grcumnun1.
\vmr,LiukP^oJe"Escrow iUm
Page }2o[14
f. This WaterLink Project Escrow Agreement is the entire agreement between the
WaterLink Communities and the Commission regarding its subject matter and
may not be changed or amended except pursuant to a written instrument signed
by each WaterLink Community and the Commission.
g. This WaterLink Project Escrow Agreement may be executed in any number of
identical counterparts, each of which will be considered an original, but which
together will constitute one and the same agreement.
IN WITNESS WHEREOF, each WaterLink Community and the Commission 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.
ATTEST: DuPage Water Commission
BY:
ATTEST: Village of Montgomery
V/ ( BY:
�?y Z'Uf Qltrr/�o,
ATTEST: Village of Oswego
BY:
ATTEST: Unite u ity of Yorkville
r
C11cA cis�J� B �
c �t-eri�
WaterLink Project Escrow IGA
Page 13 of 14
EXHIBIT A
CONNECTION FACILITIES COST
WaterLink Project Escrow IG4
Page 14 of14
WATERLINK PROJECT ESCROW INTERGOVERNMENTAL AGREEMENT
EXHIBIT A
CONNECTION FACILITIES COST ESTIMATE(1)
CONSTRUCTION (including 25% contingency) $210,389,827
PROPERTY INTERESTS/LAND ACQUISITION $17,477,530
LEGAL&ADMINISTRATIVE $1,000,000
ENGINEERING $28,000,000
$256,867,357
COST ESCALATION OVER PROJECT DURATION $26,699,000
ESTIMATED PROJECT COST (2) $283,566,357
(1) COST ESTIMATE IS BASED UPON FORECASTED PROJECT COSTS AS OF THE DATE IDENTIFIED
BELOW AND IS PROVIDED FOR REFERENCE ONLY. ACTUAL PROJECT COSTS WILL BE BASED UPON
AWARDED PROJECT CONTRACT(S)AND ACTUAL REALIZED UNIT PRICE AND LUMP SUM COSTS,
INCLUDING PROPERTY ACQUISITION, ENGINEERING, LEGAL AND COMMISSIONING COSTS,ALL OF
WHICH HAVE BEEN ESTIMATED HEREIN BUT WILL NOT BE FINALLY DETERMINED UNTIL THE
COMPLETION OF THE PROJECT AND FINAL COMMISSIONING.
(2)BASED UPON ESTIMATES INCLUDED IN THE PROJECT DEVELOPMENT
REPORT DATED FEBRUARY 1,2024