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O-79-11 Ord Approving Water Agency AgreementVILLAGE OF LEMONT ORDINANCE NO,10_7 1/ AN ORDINANCE APPROVING NORTHERN WILLCOUNTY JOINTACTION INTERGOVERNMENTAL AGREEMENT BYAND AMONG THE VILLAGES OF BOLINGBROOK, HOMERGLEN, WOODRIDGE, ROMEOVILLE AND LEMONT ADOPTED BY THE PRESIDENT AND THE BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT THIS , g DAY OF Notion ber, 2011 Published in pamphlet form by Authority of the President and Board of Trustees of the Village of Lemont, Counties of Cook, Will and DuPage, Illinois, this 2f day of1\10/611111V, 2011. ORDINANCE NO. 0 ' 7 —/t AN ORDINANCE APPROVING NORTHERN WILLCOUNTY JOINTACTION INTERGOVERNMENTAL AGREEMENT BYAND AMONG THE VILLAGES OF BOLINGBROOK, HOMERGLEN, WOODRIDGE, ROMEOVILLE AND LEMONT WHEREAS, pursuant to 5 ILCS 220/3.1, any municipality or municipalities of the State of Illinois, any township in a county with a population under 700,000 of the State, any public water district or districts of the State, any State university, or any combination thereof may, by intergovernmental agreement, establish a Municipal Joint Action Water Agency to provide adequate supplies of water on an economical and efficient basis for member municipalities, public water districts and other incorporated and unincorporated areas within such counties; and, WHEREAS, any such Agency shall itself be a municipal corporation, public body politic and corporate; and WHEREAS, a Municipal Joint Action Water Agency may be established by an intergovernmental agreement among the various member municipalities, public water districts, townships, State universities and counties, upon approval by an ordinance adopted by the corporate authorities of each member municipality, public water district, township, State university or county; and WHEREAS, the Village of Bolingbrook, Illinois ( "Bolingbrook "), the Village of Homer Glen, Illinois ( "Homer Glen "), the Village of Woodridge, Illinois ( "Woodridge "), the Village of Romeoville, Illinois ( "Romeoville "), and the Village of Lemont ( "Lemont ") (collectively, the "Members "), by virtue of the Northern Will County Joint Action Water Agency Intergovernmental Agreement attached hereto as Exhibit 1 and made apart hereof (the "Agreement "), desire to form and establish the Northern Will County Joint Action Wayer Agency in accordance with the foregoing statutory authority and further pursuant to their powers of intergovernmental cooperation under Article VII, Section 10 of the Illinois Constitution of 1970 and the Intergovernmental Cooperation Act; and, WHEREAS, the Intergovernmental Cooperation Act, as amendment (5 ILCS 220/1 et seq.), also authorizes units of local government to exercise and enjoy jointly their powers, privileges and authority, and to enter into intergovernmental agreements for that purpose; and, WHEREAS, each of the Members currently receives Lake Michigan water service by means of a common pipeline (the "Common Pipeline ") owned and operated by American Lake Water Company, Belleville, Illinois ( "ALWC "); and, WHEREAS, ALWC is an affiliate of Illinois — American Water Company, Belleville, Illinois ( "IAWC "); and, WHEREAS, Lake Michigan water is provided by ALWC to IAWC by virtue of a water supply contract for customers in Bolingbrook, Woodridge, Homer Glen, Romeoville and Lemont; and; 1 WHEREAS, pursuant to 5 ILCS 220/ 3.1(C), member municipalities of a Joint Action Water Agency may, for purposes of and upon the request of the Agency, exercise the power of eminent domain available to them, convey property so acquired to the Agency for the cost of acquisition, and be reimbursed for all expenses related to the exercise of eminent domain on behalf of the Agency; and, WHEREAS, pursuant to 65 ILCS 5/11- 124 -5(b), as amended by P.A. 97- 0;;861, where a water system that is owned by a public utility, such as ALWC, provides water to customers located in two or more municipalities, the system may be acquired by a majority of the municipalities if there is in existence an intergovernmental agreement between the acquiring municipalities providing for acquisition; and WHEREAS, the ALWC Common Pipeline is a water system that provides water to customers located in Bolingbrook, Woodridge, Homer Glen, Romeoville and Lemont; and WHEREAS, the Mayor and Board of Trustees believe and hereby declare that it is in the best interests of the Village and its residents to acquire the Common Pipeline, associated facilities and assets, including any contracts with the Village of Bedford Park or IAWC related to the provision of Lake Michigan water; and WHEREAS, the Mayor and Board of Trustees find and hereby declare that it is necessary and in the best interests of the Village to establish a Joint Action Water Agency in order to provide adequate supplies of water on an economical and efficient basis for the Members individually, including without limitation to provide a joint waterworks and /or water supply system to obtain Lake Michigan water for use as provided in the Agreement; and WHEREAS, the Mayor and Board of Trustees find that it is in the best interests of the Village to approve the Intergovernmental Agreement attached hereto as Exhibit 1 and made a part hereof, subject to attorneys' approval, which Agreement sets forth the understanding of the parties; 2 NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT and BOARD OF TRUSTEES OF THE VILLAGE OF LEMVIONT, CO?K, DUPAGE AND WILL COUNTIES, ILLINOIS, AS FOLLOWS: SECTION 1: The Mayor and Board of Trustees find as facts the recitals hereinabove set forth. SECTION 2: Subject to review and approval of the Village Attorney, the Agreement attached hereto as Exhibit 1 shall be, and it is hereby, approved, and the Mayor is hereby authorized and directed to execute, and the Village Clerk is hereby authorized and directed to attest, said Agreement in substantially the form attached hereto as Exhibit 1. SECTION 3: Any policy, resolution or ordinance of the Village that conflicts with the provisions of this Ordinance or the Agreement approved hereby shall be and is hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be in full force and effect from and after its passage and approval in the manner provided by law. (Remainder of this Page intentionally blank) 3 PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COUNTIES OF COOK, WILL, AND DUPAGE, ILLINOIS, on this2S day of N()I%ber , 2411. PRESIDENT AND VILLAGE BOARD MEMBERS: AYES: NAYS: ABSENT: ABSTAIN Debby Blatzer V Paul Chialdikas Clifford Miklos ✓� Ron Stapleton ✓ Rick Sniegowski Jeanette Virgilio ATTEST: CHARLENE M. SMOLLEN Village Clerk 4 BRIAN K. REAVES President NORTHERN WILL COUNTY JOINT ACTION WATER AGENCY INTERGOVERNMENTAL AGREEMENT THIS INTERGOVERNMENTAL AGREEMENT (the "Agreement ") is made this day of , 20-01 1_, by and among the VILLAGE OF BOLINGBROOK, ILLINOIS ( "Bolingbrook "), the -VILl l4-- OF- PLA1NFIFLII; fLLJNOJS ( "Rlai ele), -the VILLAGE OF HOMER GLEN, ILLINOIS ( "Homer Glen "), the VILLAGE OF WOODRIDGE, ILLINOIS ( "Woodridge "), and- the VILLAGE OF ROMEOVILLE, ILLINOIS ( "Romeoville ") -, and the VILLAGE OF LEMONT, ILLINOIS ( "Lemont "). The foregoing municipalities are hereinafter severally referred to as the "Members." WITNESSETH: WHEREAS, pursuant to 5 ILCS 220/3.1, any municipality or municipalities of the State of Illinois, any township in a county with a population under 700,000 of the State, any public water district or districts of the State, any State university, County, or any combination thereof may, by intergovernmental agreement, establish a Municipal Joint Action Water Agency to provide adequate supplies of water on an economical and efficient basis for member municipalities, public water districts and other incorporated and unincorporated areas within such counties; and WHEREAS, any such Agency shall itself be a municipal corporation, public body politic and corporate; and WHEREAS, a Municipal Joint Action Water . Agency may be established by an intergovernmental agreement among the various member municipalities, public water districts, townships, State universities and counties, upon .approval by an ordinance adopted by the corporate authorities of each member municipality, public water district, township, State university or county; and WHEREAS, Bolingbrook, 1 lainficsld; Homer Woodridge,Lcmont. and Romeoville, by virtue of this Agreement, hereby form 2.ia establish the Northern Will County Joint Action Water Agency in with the foregoing statutory authority and further pursuant to their powers of intergovernmental cooperation under Article VII, Section 10 of the Illinois Constitution of 1970 and the Intergovernmental Cooperation Act; and WHEREAS, the. Intergovernmental Cooperation Act, as amended (5 ILCS 220/1 et seq), also authorizes units of local government to exercise and enjoy jointly their powers, privileges and authority, and to enter into intergovernmental agreements for that purpose; and WHEREAS, each of the Members currently receives Lake Michigan water service by means of a common pipeline (the "Common Pipeline ")_owned and operated by American Lake Water Company, Belleville, Illinois ( "ALWC "); and WHEREAS, ALWC is a "common carrier by pipeline" as that term is defined in 220 ILCS 5/15 -201; and WHEREAS, ALWC. is an affiliate of Illinois - American Water Company, Belleville, Illinois ( "IAWC "); and WHEREAS, Lake Michigan water is provided by ALWC to IAWC by virtue of a water supply contract for customers in Bolingbrook, Romeoville, Lemont. Woodridge and Homer Glen; and WHEREAS, Lake Michigan water is provided to Plainfield by ALWC pursuant to a wholesale water supply contract for customers in Plainfield; and WHEREAS, pursuant to 5 ILCS 220/3.1(C), member municipalities of a Joint Action Water Agency may, for the purposes of and upon the request of the Agency, exercise the power of eminent domain available to them, convey property so acquired to the Agency for the cost of 2 acquisition, and be reimbursed for all expenses related to the exercise of eminent domain on behalf of the Agency; and WHEREAS, pursuant to 65 ILCS 5/11 - 124 -5(b), as amended by P.A. 97 -O58A where a water system that is owned by a public utility, such as ALWC, provides water to customers located in two or more municipalities, the system may be acquired by either or- all- -a majority of the municipalities if there is in existence an intergovernmental agreement between the ac uirin municipalities ser -vel- providing for acquisition; and WHEREAS, the ALWC Common Pipeline is a water system that provides water to customers located in Bolingbrook, a portion of Woodridge, Homer Glen, Plainfield, and-a portion of Romeoville; -au44, and a portion of Lemont; and WHEREAS, the Members believe and hereby declare that it is in the best interests of the Members and their residents to acquire the Common Pipeline, associated facilities and assets, including any contracts with the Village of Bedford Park or IAWC related to the provision of Lake Michigan water; and WHEREAS, the governmental units which are a party to this Agreement have determined that it is necessary and in their best interests_ to establish a Joint Action Water Agency in order to provide adequate supplies of water on an economical and efficient basis for the Members individually, including, without limitation, to provide a joint waterworks and /or water supply system to obtain Lake Michigan water for use as provided in this Agreement: NOW, THEREFORE, pursuant to statutory authority and their powers of intergovernmental cooperation, it is agreed by and among the parties hereto as follows: Section 1. Recitals Incorporated. The foregoing recitals shall be and are hereby adopted as findings of fact as if said recitals were fully set forth within this Section 1. Section 2. Definitions. For the purposes of this Agreement each of the following words and phrases shall have the meaning set forth following the word or phrase, unless the context clearly indicates a different meaning. (a) The word "Act" shall mean the Intergovernmental Cooperation Act (5 ILCS 220/3.1), as it has been and as it may be amended from time to time. (b) The phrase "Additional Member" shall mean any city, er village or other governmental unit which becomes a member of the Agency pursuant to this Agreement, other than an Original Member. An Original Member that withdraws from the Agency pursuant to this Agreement may, however, become a member of the Agency again in the manner provided for Additional Members. (c) The word "Agency" shall mean the Northern Will County Joint Action Water Agency established by this Agreement. (d) The phrase "Board of Directors" shall mean the Board of Directors of the Agency. (e) The word "By- Laws" shall mean By -Laws of the Agency as adopted and as amended from time to time by the Board of Directors. (f) The phrase "Common Pipeline" shall mean the Lake Michigan water pipeline and appurtenances thereto presently owned by American Lake Water Company. (g) The phrase "Executive GemmitteeDircctor" shall mean the E-xeetutive- Committee person appointed by the Board of Directors to perform the duties of Executive Director of the Agency. (h) The phrase "Full Water Requirements" means an amount of Lake Michigan water which is sufficient to service a Member's temeref— conneet-ieneWater Connections as identified on Exhibit 1, as now existing or hereafter amended. 4 fl(h) The word "Members" shall mean all governmental units which are Original Members or which become Additional Members of the Agency pursuant to this Agreement. The word "Members" does not, however, include governmental units which, pursuant to this Agreement, shall have withdrawn from the Agency. The word "Member" shall mean one of the Members. (i)(i) The phrase "Original Members" shall mean the governmental units listed on page 1 of this Agreement which governmental units approve and execute this Agreement on or before its effective date. (k)(j) The word "Participant" shall mean any person, corporation, entity, organization, or Public Agency which shall enter into an agreement with the Agency pursuant to Section 7 of this Agreement to participate in activities of the Agency. 111(k) The phrase "Public Agency" shall mean the State of Illinois, any agency of the State, and any units of local government as defined in the Illinois Constitution of 1970 including, without limitation, any city, village, county, water district, water commission or joint action water agency. (m)(1) The word "System" shall mean the Common Pipeline and associated facilities when acquired by the Agency. (n)(m) The term "Water Connections" shall mean the total number of customer water connections served by a Member, whether metered or unmetered, which receive Lake Michigan water through the Common Pipeline as their primary water supply. Section 3. Establishment. A Joint Action Water Agency is established by this intergovernmental agreement among the original member governmental units. The corporate name of the Agency so established is the "Northern Will County Joint Action Water Agency ". 5 The Agency shall be a municipal corporation and a public body politic and corporate. The Agency shall have all the powers and authority ranted to the Agency by law, including, as applicable;, Illinois statutes and Member ordinances, as now existing or hereafter amended. Section 4. Purposes. The Agency is established for the purpose of providing adequate supplies of water on an economical and efficient basis for the Members, all as provided in this Agreement. In order to reduce the cost of providing water for the Members, the Agency may also provide water for other persons, entities, or organizations, including, without limitation, Participants, all as provided in this Agreement. Section 5. Duration. The Agency shall have . perpetual duration unless dissolved and terminated as provided in Section 8 of this Agreement. Section 6. Membership. (a) The members of the Agency shall be the Original Members, plus any Additional Members, excluding, however, any Original Members or Additional Members which shall have withdrawn from the Agency pursuant to this Agreement. (b) Any Illinois city, village or other governmental unit which is not an Original Member of the Agency and any Original Member which shall have withdrawn from the Agency as provided in this Agreement, may join the Agency as an Additional Member upon the adoption of an ordinance by the corporate authorities of the joining governmental unit determining so to become a member and upon the consent of the Board of Directors and of all of the then Members. The consent of each such Member shall be effected by an ordinance adopted by the corporate authorities of the consenting governmental unit, a certified copy of which shall be filed with the Secretary of the Agency. The Board of Directors of the Agency may establish any reasonable conditions with respect to any governmental unit becoming an Additional Member. 6- These conditions may include, without limitation, the making of a capital contribution to the Agency and the assumption of all or a portion of contracts, debts and obligations of the Agency. (c) Promptly upon any governmental unit becoming an Additional Member, that fact shall be certified by the Secretary of the Agency to the Secretary of State of Illinois. Section 7. Participants. To the extent permitted by law, the Agency may enter into agreements with any person, corporation, entity, organization, or Public Agency which is a water supplier or distributor to participate in activities of the Agency. Each agreement with such a Participant shall contain provisions governing all aspects of such person's participation, including, without limitation, the rights and obligations of the Participant with respect to any required capital contribution and sharing of costs and liabilities. Any such agreement may provide for a Participant to appoint a delegate to participate in the meetings of the Board of Directors -mil- taxi -Exeeu ive- •Lomtnittee of the Agency, but a Participant and its delegate shall have no voting privileges. No such agreement with a Participant shall become effective unless and until the corporate authorities of eaehall Members shall have approved the agreement by an ordinance, a certified copy of which shall have been filed with the Secretary of the Agency. Section 8. Withdrawal, Termination. and Dissolution. (a) Any Member may at any time withdraw as a member of the Agency but only upon the consent of the Board of Directors and only upon the consent of each other Member. (b) Any Member may withdraw pursuant to paragraph (a) of this Section only upon filing with the Secretary of the Agency a certified copy of an ordinance of the Member determining so to withdraw. Any consent by any Member to withdrawal by any other Member shall be made only by filing with the Secretary of the Agency a certified copy of an ordinance so consenting to the withdrawal. (c) Upon the withdrawal of one or more Members so as to reduce the number of Members to less than three, the Agency may be dissolved and terminated. Upon the filing with the Secretary of the Agency of certified copies of ordinances of the majority of Members determining to dissolve and terminate the Agency, then the Agency shall be so dissolved and terminated. If the number of members is reduced to two, a vote of either member to dissolve shall be sufficient to dissolve the Agency. (d) Promptly upon any Member withdrawing from the Agency or upon action having been taken to dissolve and terminate the Agency, that fact shall be submitted by the Secretary of the Agency to the Secretary of State of Illinois. (e) Notwithstanding any provision of this Agreement, while and as long as any bonds or notes of the Agency or any other contracts or obligations of the Agency are outstanding and unpaid, the Agency shall not terminate and dissolve in whole or in part. (f) Any withdrawing Municipality shall be responsible for its share of any unpaid contracts, debts and obligations of the Agency incurred prior to the date of withdrawal or removal in proportion to its respective share of wWater eConnections as of the date of withdrawal, including its obligations under any conditions for membership established by the Board of Directors of the Agency prior . to becoming an Additional Member. The -terfr water eennoetions," a used- liere4n -s1u41 mean-the-total number o eustomev -water conneetiens; whether= nnetered or ninetered, l Bated w thi ' the ^ ^..ate- limit-s-ef -the -M it whieh uriieipal � y; Lake M higan water- tlneugh -t} A-WC Cm mission Pipeline (g) If withdrawal of one or more Member results in dissolution and termination of the Agency as required by this . section, then the withdrawing Member shall participate in the dissolution of the Agency as set forth in Paragraph (h) of this Section. (h) Upon the termination and dissolution of the Agency: (i) The contracts, debts and obligations of the Agency remaining unpaid after 8 such dissolution and termination shall be the several obligations of the respective Members and /or Participants in the respective proportions established for capital and operating costs, based on the • number of wWater eConnections of the Members and /or Participants; (ii) The assets of the Agency remaining after dissolution shall be distributed among the Members and /or Participants who had participated in the Agency within one year prior to such dissolution and termination in proportion to their respective proportionate share of capital costs as established in accordance with Paragraph (h)(i) of this Section 8, after any setoff with respect to the provision for payment of that Member and /or Participant's share of the contracts, debts and obligations of the Agency. Section 9. Powers. (a) The Agency shall have the following powers, in addition to any powers set forth elsewhere in the Agreement: (i) To sue or be sued in law, equity, by suit, actionl mandamus, or any other proceeding; (ii) To apply for and accept gifts or grants or loans of funds or property or financial or other aid from any public agency or private entity; (iii) To invest available funds; (iv) To employ agents and employees and to retain attorneys, engineers and such other consultants as the Board of Directors shall determine; (v) To acquire, hold, sell, lease, as lessor or lessee, transfer or dispose of real or personal property, or interests . in property, as it deems appropriate, including, without limitation, the ALWC Common Pipeline, which -9- property may be located within or without the corporate limits of any Municipality, and to provide for the use of any such property by any Member or Participant; (vi) To plan, construct, improve, extend, finance (including the issuance of revenue bonds or notes at d- general- obligatien- bonds - o1- - notes -as provided in the Act), acquire, operate, maintain and contract for a joint waterworks and /or water supply system which may include, or may consist of, without limitation, facilities (including land and interests in land) for receiving, treating, storing and transmitting water from Lake Michigan for supplying water to the Members and their water users or to other Public Agencies, persons or corporations, including Participants; (vii) To buy water and to enter into contracts with any person, corporation, entity, organization, or Public Agency (including any Municipality) for that purpose, in accordance with the Act; (viii) To sell or provide water to Members and/or Participants at rates, fees and charges as determined by the Board of Directors and to enter into contracts for such sale or provision of water, all in accordance with the Act; (ix) To sell water not required for use by Members to any person, corporation, entity, organization or Public Agency which is a water supplier at rates, fees and charges as determined by all of the members of the Board of Directors and to enter into contracts for that purpose, all in accordance with the Act, but only to the extent allowed by applicable State wWater aAllocations; (x) To sell water not required for use by Members to any person, corporation, -10� entity, organization, or Public Agency which is not a water supplier for its own use at rates, fees and charges as determined by the Board of Directors and to enter into contracts for that purpose, all in accordance with the Act, but only when such sales and contracts are approved by ordinance adopted by the corporate authorities of eaehall Members, certified copies of which are filed with the Secretary of the Agency, and only to the extent allowed by applicable State wWater allocations; (xi) To adopt and enforce rules and regulations for Lake Michigan water use by Members, Participants or other purchasers of water from the Agency as may be necessary or advantageous to ensure adequate supplies of Lake Michigan water and to comply with State or Federal laws and regulations; (xii) To establish rates, fees and charges for the sale of water by the Agency or for the use of its facilities; (xiii) To assess and bill Members for any and all expenses incurred by the Agency with respect to the acquisition of the ALWC Common Pipeline, including attorney's fees, consultant fees and related costs, and /or other litigation expenses, which billings shall occur not less than quarterly; (xiv) To utilize, pursuant to a contractual agreement with a Member or Participant, any wWater aAllocations assigned to the Agency; (xv) To borrow money and, in evidence of its obligation to repay the borrowing, issue its bonds or notes, all as provided in the Act, and, for the purpose of securing and paying any of its bonds or notes, to pledge, assign or provide for a lien or security interest on (1) any or all revenues derived from the operation of the System, including from contracts for the sale of water, and investment earnings thereon; (2) proceeds of any particular of its bonds or notes and investment earnings thereon; (3) receipts of the Agency under any interim contracts for a supply of water with any Municipality or other person or any other contracts with any Municipality or other person which provide that such payments may be used for that purpose and investment earnings on any such receipts; (4) any funds or accounts securing payments of the bonds or notes as established by the bond or note resolution, all as and to the extent as provided in the Act and the resolution authorizing the issuance of the bonds or notes. The issuance . of bonds or notes by the Agency shall require the approval of all members by duly enacted ordinances approved by each Member's corporate authorities.; Notwithstanding anything to the contrary in the Agreement or the Act, the Agency shall not issue any general obligation bonds. (xvi) • To exercise any or all powers specifically granted to Joint Action Water Agencies by the Act; (xvii) To make and execute all contracts, including contracts for insurance, and other instruments necessary or convenient to the exercise of its powers or the accomplishment of the purposes of the Agency; and (xviii) To exercise all powers and authority granted to the Agency by law, including, as applicable, Illinois statutes and Members' ordinances as now existing or hereafter amended; and (-viii)(xix) To exercise all other powers incident to the purposes and objectives of the Agency and the powers listed above. (b) The Agency shall have the same privileges with respect to exemption from Illinois Commerce Commission regulation as is accorded the Municipalities. The Agency a►iu Directors, officers, employees, and agents shall have the :pane •privileges with respect to limitations against and immunity from °'7'+ >:.ave the Municipalities and their officers and employees, an0 ^? :µ,. ;,ave € a right to acquire insurance and pay costs . thereof for liability insurance, including officials and public employee liability insurance. All property, income and receipts of or transactions by the Agency shall be exempt from all taxation, the same as if it were the property, income or receipt of or transactions by the Municipalities. (c) Members may, for the purposes of, and upon request by, the Agency, exercise the power of eminent domain available to them, convey property so acquired to the Agency for the cost of the acquisition, and be reimbursed for all expenses related to this exercise of eminent domain power on behalf of the Agency, including but not limited to acquisition of the ALWC Common Pipeline. The Board of Directors shall review and approve all bills submitted by a Member pursuant to this subparagraph to assure that the expenses are reasonably required prior to reimbursement. (d) Pursuant to 65 ILCS 5711- 124 -5(b), as amended by P.A. 97 -0586, Tthe Agency and the Members shall use their best efforts to acquire the ALWC Common Pipeline. However, in the event that the ALWC Common Pipeline is not acquired, for whatever reason, expenses incurred by any Member on behalf of the Agency with respect thereto shall be reimbursed as a debt due and owing from all the Members, on a pro rata . basis, in proportion to each Member's present number of customer wWater eConnections as set forth on Exhibit 1, as now existing or hereafter amended. Member payments, pursuant to this subparagraph, shall be paid within ninety (90) days of receipt of an invoice for reimbursement. Section 10. Governance. The Agency shall be governed and administered as provided in this Section and the By -Laws. (a) The governing body of the Agency shall be the Board of Directors. There shall be one Director for each Member, appointed by the Member. Each Director shall be r , the 1vl yoFoi- 1'residenti --an elected member of the corporate authorities or an appointed officer, such as the Municipal Manager or Director. of Public Worksother- elected- nffieial of-that-appointing Municipality. The terms of the first Directors shall begin when they are appointed and shall run until April 30, 2013. Thereafter, all Directors shall be appointed for two -year terms expiring on April 30 of odd numbered years. Persons serving as Directors shall serve until their terms expire and thereafter until their respective successors are appointed. Should any Director cease to be an elected member of the corporate authorities or to be an appointed - other- offiei-al officer or employee of the appointing Member, that person shall simultaneously cease to be a Director, and that position shall be vacant. Any vacancy in the office of Director; whother- because- t-he-Directer ceases -te be-an elected-- eftieial-of the appointing-Member-fir otherwise; shall be filled by appointment by the Municipality with respect to which the vacancy exists. Each Director shall have one vote on the Board of Directors. (b) Any Member may appoint an Alternate Director who may attend any meeting of the Board of Directors and may vote as the Director in the absence of the Director from that Member or if there is a vacancy in the position of Director from that Member. Each Alternate Director shall have the same qualifications as required of a Director. The term of an Alternate Director shall be the same as the term of the Director from the appointing Member. Persons serving as Alternate Directors shall serve until their term expires and thereafter until their respective successors are appointed. Should any Alternate Director cease to be an elected member of the corporate . authorities or other official or employee of the appointing Member, that - 14 - person shall simultaneously cease to be an Alternate Director and that position shall be vacant. Any vacancy in an office of an Alternate Director shall be filled by appointment by the Member with respect to which the vacancy exists. (c) All appointments of Directors and Alternate Directors shall be by an ordinance of the corporate authorities of the appointing Member, a certified copy of which shall be filed with the Secretary of the Agency. (d) The Board of Directors shall elect one Director to serve as Chairman and another Director to serve as Vice - Chairman. The Chairman shall preside at all meetings of the Board of Directors. The Vice- Chairman shall preside over meetings of the Board of Directors in the Chairman's absence. The Board of Directors shall select other persons, who need not be Directors, to the positions of Secretary and Treasurer. The Secretary shall be the keeper of the books and records of the Agency, and the Treasurer shall have charge and custody of and be responsible for all funds and securities of the Agency (other than funds and securities held by a corporate trustee or paying agent with respect to bonds or notes of the Agency). The duties of the officers of the Agency shall be prescribed in further detail in the By -Laws. The terms of office and manner of selection of the officers shall also be prescribed in the By -Laws. (e) The Board of Directors shall determine the general policy of the Agency, shall approve the annual budget, shall make all appropriations (which may include appropriations made at any time in addition to those made in any annual appropriation document), shall approve all contracts for the purpese- efpurchase or sale of water, shall approve water rates, shall adopt any resolutions providing for the issuance of bonds or notes by the Agency (subject to Subparagraph 9((a)(xvxi-v1) above, shall adopt its By -Laws, rules and regulations. Further,. the Board --and shall exercise such powers of the Agency and perform such duties as may be prescribed in this Agreement or the By -Laws. - 15 - (0 The daily operation of the Agency may be conducted under the direction and supervision of an Executive Director, subject to the general policy decisions made by the Board of Directors from tier. :, If app' tea, -. ~r /,thee Director shall be responsible for carrying out the policy decisions of the Board of Directors. Section 11. Rate Setting. The Board of Directors of the Agency shall periodically, but not less than annually, set rates for Lake Michigan Wwater delivered to the Members and /or Participants. The Agency water rates shall be sufficient to pay the costs of operation and maintenance, to provide an adequate depreciation fund, and to pay the principal and interest on any outstanding indebtedness of the Agency, including any outstanding debt incurred by any of the Members associated with the acquisition of the Common Pipeline. Section 12. Rights and Responsibilities of Members. The Board of Directors may, by vote of not less than all of the Directors, sell or dispose of any real or tangible personal property owned by the Agency upon a determination by the Board that the property is no longer useful or necessary for the Agency. No property shall be sold or disposed of if to do so would deprive any Member from continued service by or through the Agency, unless the corporate authorities of that Member consent by ordinance. Any proceeds of such sale or disposition shall either be applied to the purposes of the Agency or shall be returned to the Members in their respective proportionate shares of capital contribution to the Agency, as the Board of Directors shall determine. Section 13. Common Pipeline Acquisition Costs. Each Member shall pay its proportionate share of the costs of the acquisition of the ALWC Common Pipeline as provided in this Section. (a) On or before January 1 of each year, the Member shall determine the number of the Member's customer wWater eConnections (as defined in Section 2(nm )8(-t ) hereinabove) - 16 - loeated - wit-ltin- the- Member's- eorprate- limits-and shall notify the Agency. Upon receipt of the revised wWater eConnection figures, Exhibit 1 shall be automatically amended to substitute the new connection figures for the prior connection figures. (b) Until the Common Pipeline is acquired by the Agency and until all costs and expenses associated therewith have been paid, the Members covenant and agree to pay all Agency expenses, of whatsoever nature -oc u1Ting on a proportionate basis. A Member's proportionate share of. Agency expenses shall be determined based on the ratio that the number of the Member's c- ustetner•Water eConnections bear to the total number of all Members' e-ustotnerWater`eContlect ons pursuant to Exhibit 1, as now existing or hereafter amended. (c) After the acquisition of the Common Pipeline by the Agency, any costs or expenses incurred by the Agency shall be included in the Lake Michigan Wwater rate, as set by the Board of Directors of the Agency pursuant to Section 11. Section 14. Appropriations by Members. To the extent required by a Member's obligations under this Agreement, the Member shall adopt a budget or appropriations ordinance for each fiscal year of such Member, or otherwise in accordance with applicable state laws, provide lawful authority for payment of all sums anticipated to be due to the Agency during. such fiscal year. Members shall appropriate their funds and shall use their credit, revenues and other resources, including the power to borrow money, to incur debt and to issue and sell bonds, if necessary, to pay their shares of the costs of the Agency and to service their debt related to the Agency as they individually determine. Section 15. Suspension of a Member for Delinquent Charges. (a) The Agency may suspend the membership on the Board of Directors - and -the Beeutive- Committee of any Member whose capital contributions and payments or charges for operation and maintenance due to the Agency, as determined by the Board of Directors as - 17 - provided in this Agreement, have not been paid in full within sixty days after demand by the Agency. A Member under suspension shall have no power to make or second motions or to vote, nor shall it be counted for the purposes of the establishment of a quorum or the determination of the vote needed to pass or approve any matter coming before the Board of Directors- or -the Executive Committee. A Member under suspension shall continue during its suspension to be responsible for its share of any unpaid contracts, debts and obligations incurred by the Agency, and such responsibility shall be terminated only upon withdrawal by such Member. Upon payment of all amounts due the Agency under this Agreement, including those accrued during the suspension, a Member under suspension shall be reinstated to membership on the Board of Directors-and-the Exeet ive Ce mnittee. (b) The Agency may decline' to provide water to any Member or Participant whose charges have not been paid within sixty days after billing by the Agency. The delinquent Member or Participant shall pay the reasonable attorney's' fees, consultant fees, prejudgment interest, expert fees and costs incurred by the Agency with respect to the collection of the delinquent charges. Further, a reasonable penalty liquidated damages charge for late payments may be established and imposed by the -E- wive- Com+nittee Board of Directors. Section 16. Limited Liability of Agency. The Agency shall not be liable for any liability or obligation incurred by any Member except as agreed by the Board of Directors or except pursuant to Paragraph (c) of Section 9. Section 17. Water Allocation and Usage. The allocation of Lake Michigan water by the State Illinois for each Member (the "Water Allocation ") may be assigned to the Agency subject to the terms of such wWater aAllocation. The Agency shall monitor the water usage of each Member to ensure compliance with their respective wWater aAllocations. Each Member shall keep on file with the Agency an emergency water usage plan. That plan shall be _18_ implemented whenever declared necessary by the Board of Directors for the good of the Agency and its members. An emergency usage plan will be developed for the Agency by the Executive Co mnitteeDirector and approved by the Board of Directors. No Member's wWater aAllocation assigned to the Agency shall be used for any purpose without its consent except for service for that Member. The plan developed by the Agency shall be subject to the consent of the State of Illinois, if required by the terms of the State's wWater {Allocations for the Members. Upon withdrawal or removal of a Member from the Agency, a wWater aAllocation assigned to the Agency by that Member will be reassigned to the withdrawing Member by the Agency. Upon dissolution and termination of the Agency, all .wWater aAllocations assigned to the Agency by Members shall be reassigned by the Agency to the respective Members. Section 18. By -Laws. The Board of Directors shall adopt By -Laws for the Agency which shall, among other matters, set forth provisions for the holding, notice, call and conduct of meetings of the Board ofDirectors- and - the -L eeu,tzv° .:ittee, the adoption of annual budgets and appropriations, and the entering into of contracts and purchase by the Agency. The By -Laws mayshall be adopted only upon the concurrence of all of the members of the Board of Directors and mayshall be amended upon the concurrence of all of the members of the Board of Directorsonly- _ By s -ypro ode— add ional --- refund procedures - wit# - espeet -te ndt o€-t By -Laws. Section 19. Water Supply. (a) Upon the acquisition of the Common Pipeline, and subject to the terms of this Agreement, for a period of forty (40) years, the Agency shall sell either to the Members directly or, if IAWC or an IAWC successor or assignee owns and operates the local water distribution system serving the Member's- residentscustomers in the service area, then to IAWC or its successor or assignee, an amount of Lake Michigan water necessary from time to time to serve -19- the Member's residents!customers' Full Water Requirements: Lake Michigan Wwater hereunder shall be limited to a maximum annual amount equivalent to such then current Water Allocation and to a maximum rate of Lake Michigan Wwater in any one hour equal to_1.7 times such wWater aAllocation divided by 24. Except for Woodridge, Lemont and Romeoville, no Member shall distribute or sell potable water to the Member's customers or to any other person or entity, other than Lake Michigan Wwater provided by the Agency, without an amendment having been made to this Agreement. No Member shall mix Lake Michigan Wwater with well water except in case of an emergency, and all water distributed shall have Lake Michigan as its source. (b) The Agency shall use its best efforts to furnish Lake Michigan Wwater . to the Members as hereinabove provided, but its obligation hereunder shall be limited by (i) the amount of Lake Michigan Wwater from time to time available to the Agency; (ii) the capacity of the Common Pipeline; and (iii) ordinary transmission loss including standard metering error, between the source of supply and the points of delivery; (iv) the maximum amount of Lake Michigan Wwater available under the Village of Bedford Park Water Supply Contract; or (v) an event which would decrease the amount of Lake Michigan Wwater then being supplied in the future to the Members. (c) The Agency undertakes to use reasonable care and diligence to provide a constant supply of Lake Michigan Wwater as herein provided for, but reserves the right at any time temporarily to turn off the Lake Michigan Wwater in its mains for emergency and maintenance purposes. The Agency shall give the Members notice not less than forty- eight (48) hours in advance of any such turnoff, except that in emergencies it shall give notice which is reasonable, under the particular circumstances. (d) If it becomes .necessary for the Agency to limit its delivery of Lake Michigan Wwater for any reason, each Member shall be entitled to the fullest extent possible to receive - 20 - during such period of curtailment its pro rata share of Lake Michigan water available as determined by the ratio of its total Lake Michigan Wwater use during the prior Fiscal Year to the sum of Lake Michigan Wwater use during the prior Fiscal Year of all Members entitled to Lake Michigan Wwater during such period of curtailment. Nothing in this Agreement shall be construed to prohibit each Member from serving its customers in cases of emergency or when the Agency for whatever reason is unable to meet such Full Water Requirements, from any source, including wells owned by such Member and maintained for emergency use. (e) The Agency fiirther undertakes to provide Lake Michigan Wwater so as to meet the requirements of any federal, state or local agency as shall have jurisdiction from time to time for the operation of public water supplies. The Agency shall supply each Member with Lake Michigan Wwater of a quality commensurate with that furnished other Members and meeting state and federal water quality standards. The Agency bears no responsibility for the contamination of Lake Michigan Wwater or deterioration of water quality occurring beyond the points of delivery to the Members. (f) Each Member that operates its own water distribution system agrees to operate its System from the points of delivery on to the consumer in such a manner as at no time to place the Agency in jeopardy of failing to meet the regulations of any agency or governmental authority having jurisdiction for its operation of public . water supplies. Each Member also agrees to notify the Agency as promptly as possible of all emergency and other conditions that may directly or indirectly affect the quantity or quality of the Lake Michigan Wwater received hereunder. (g) The Agency shall furnish, install, own, operate, maintain, repair and replace at its expense all necessary metering equipment and devices of a type meeting the standards of the American Waterworks Association for measuring properly the quantity of Lake Michigan -Wwater delivered. Meters shall be calibrated at least annually. (h) A Member or Participant may, at its option and its own expense, install and operate a check meter to check each meter installed by the Agency, but the measurement of Lake Michigan Wwater for the purpose of this Contract shall be solely by the Agency's meters, except in the cases hereinafter specifically provided to the contrary. All such check meters shall be of standard make and shall be subject at all reasonable times to inspection and examination by any employee or agent of the Agency, except during any period when a check meter may be used under the provisions hereunder for measuring the amount of water delivered, in which case the calibration and adjustment thereof shall be made by the Agency with like effects as if such check meter or meters had been furnished and installed by the Agency. (i) Notwithstanding the foregoing, if the Agency or any Member or Participant at any time observes a variation between a delivery meter and a check meter, if any such check meter shall have been installed, or any other evidence of meter malfunctions, such party shall promptly notify the other party, and the Agency shall then cooperate to procure an immediate calibration test and adjustment of such meter to accuracy and shall jointly observe any such adjustment. The party who discovers such variation shall give the other party notice of not less than forty - eight (48) hours prior to the time of all tests of meters (which tests shall be conducted during normal working hours) so that the other party may conveniently have a representative present. If said representative is not present at the time set in such notice, calibration and adjustment may, notwithstanding any other provision of this paragraph, proceed in the absence of said representative. If, upon any test, the percentage of inaccuracy of any meter is found to be in excess of two percent (2 %), an adjusted registration thereof shall be corrected by agreement of the Agency based upon the best and most recent data available. - 22 - Section 20. Amendment. This Agreement may be amended by written agreement of all Members, authorized by ordinances adopted by their respective corporate authorities, certified copies of which shall be filed with the Secretary of the Agency. Promptly upon there being any amendment to this Agreement, the Secretary of the Agency shall cause a copy of the amendment to be filed in the office of the Secretary of State of Illinois. Notwithstanding the foregoing, Exhibit 1 shall be amended annually when new customer connection data is provided by the Members pursuant to Section 13. Section 21. Enforcement. The Agency shall have the right to enforce this Agreement, the By -Laws or any agreement among or between the Agency and any one or more Members or Participants, against any Member or Participant and to compel payment of rate fees and charges as provided in this Agreement, the By -Laws or any such other agreements. If suit is necessary to compel enforcement of provisions of this Agreement, the By -Laws or any such other agreement or to compel payment of fees and charges of the Agency, the defaulting Member or Participant shall pay the Agency's reasonable legal fees, expert fees, consulting fees, prejudgment interest, and costs pertaining to said default. Section 22. Ordinance Authorizing Agreement. Prior to executing this Agreement, this Agreement shall be approved by ordinance adopted by the corporate authorities of each Original Member, and each Original Member shall have delivered to each other Original Member a certified copy of such ordinance, which ordinance shall also specifically authorize and direct the execution of this Agreement on behalf of such Original. Member. Section 23. Effective Date. This Agreement shall become effective on the date when it is executed by all the villages which are the eOriginal mMembers. Section 24. Filing with Secretary of State. Promptly upon this Agreement becoming effective, a copy of this Agreement shall be filed by the Secretary of the Agency with the Secretary of the State of Illinois. Section 25. Severability. If any part of this Agreement shall be held invalid for any reason, the remainder of this agreement shall remain valid to the maximum extent possible. IN WITNESS WHEREOF, the undersigned Members have executed this Agreement by the signatures of their respective officers as reflected on the dates set forth below. This Agreement may be signed in duplicate originals. VILLAGE OF BOLINGBROOK, ILLINOIS ATTEST: Village Clerk ATTEST: Village Clerk ATTEST: Village Clerk ATTEST: . Village Clerk ATTEST: Village Clerk Mayor VILLAGEQF- R13A- INFIELB;ILLIN OIS- Village• President VILLAGE OF HOMER GLEN, ILLINOIS Village President VILLAGE OF WOODRIDGE, ILLINOIS Village President VILLAGE OF ROMEOVILLE, ILLINOIS Village President VILLAGE OF LEMONT, ILLINOIS ATTEST: Village President Village Clerk •I- S$74 /RhV 26/ 14$ 102 /REV1h11-N8MI3148440140B/Jl)/11 - 25 - EXHIBIT 1 Member Water Connections as of January 1, 2010 COMM UNITY TAPS PERCENT _ Bolingbrook 23,000, 78.7% Homer Glen 6,000 20.6% Woodridge 200 0.7% Romeoville 3 >0.1% Lemont 17 >01% TOTAL 29;220