IGA DuPage Water Com. & County & VOB -Construction & Operation of Emergency Water Deliveries 10-23-2012 {
f
I
I
I
INTERGOVERNMENTAL AGREEMENT
BETWEEN THE DUPAGE WATER COMMISSION,THE COUNTY OF DUPAGE AND THE
VILLAGE OF OAK BROOK
CONCERNING THE CONSTRUCTION AND
OPERATION OF A CONNECTION FACILITY FOR INTERIM AND EMERGENCY
WATER DELIVERIES
1
::.........
i
i
I
I
i
INTERGOVERNMENTAL AGREEMENT BETWEEN THE DUPAGE WATER
COMMISSION, THE COUNTY OF DUPAGE AND THE VILLAGE OF OAK BROOK
CONCERNING THE CONSTRUCTION AND OPERATION OF A CONNECTION
FACILITY FOR INTERIM AND EMERGENCY WATER DELIVERIES
THIS AGREEMENT, made and entered into this day of , by
and between the DU PAGE WATER COMMISSION, a county water commission
i
created and existing under the laws of the State of Illinois (the "Commission"), the
I
COUNTY OF DUPAGE, a unit of local government created and existing under the laws
of the State of Illinois (the "County"), and the VILLAGE OF OAK BROOK, a municipal
corporation created and existing under the laws of the State of Illinois (the "Village"),
I
WITNESSETH:
I
WHEREAS, the Commission was formed and exists pursuant to Division 135 of
Article 11 of the Illinois Municipal Code (65 ILCS 5111-135-1 et agg.1 and the Water
Commission Act of 1985 (70 ILCS 372011 et seqj for the purposes of securing an
adequate source and supply of water for its customers; and
WHEREAS, the Commission operates a water system supplying a number of
municipalities and other customers in DuPage County with water drawn from Lake
Michigan (the"Commission Waterworks System"), and
WHEREAS, the County is constructing a water distribution system, commonly
known as the York Township Facility, (the "County Water System"), which system shall
be supplied with water by the Commission pursuant to the terms of that certain Water
Purchase and Sale Contract for the County Unit System, dated as of the 13th of July,
2006, (the "Subsequent Customer Contract") with the Commission, and which system is
to be connected at a single point to the Commission Waterworks System; and
I
2
i
WHEREAS, it has been determined in the best interest of the Commission and
the County to design and construct this connection as a Joint Facility (the "Joint
i
Facility") which would include all equipment necessary to accomplish the connection
i
described above; and
I
WHEREAS, the County has entered into a design contract for the Joint Facility
where design and construction is anticipated to be completed by June 1, 2013: and
WHEREAS, the construction of the Joint Facility, together with certain
extensions to the County Water System, will enable the County to serve Existing
Properties within the County Water System that currently cannot be adequately served
by the existing County Water System (the" Existing Properties"); and
i
WHEREAS, due to declining well water quality the County desires to serve the
Existing Properties with Lake Water before the Joint Facility is operational; and
WHEREAS, the Village owns and operates a water distribution system (the
"Village Water System"), which system is supplied with water by the Commission
pursuant to the terms of that certain Water Purchase and Sale Contract, dated as of
June 11, 1986 (the "Charter Customer Contract") with the Commission; and
WHEREAS; the County Water System is adjacent to the Village Water System
and, upon having completed the construction of a new connection between the County
Water System and the Village Water System (the "CountyNillage Connection"), at the
intersection of 15th Street and Addison Avenue in unincorporated York Township,
together with certain extensions to the County Water System, the Village Water System
is capable of transmitting and delivering water purchased by the County from the
Commission through the Village Water System to the County Water System for service
i
3
i
to the Existing Properties; and
WHEREAS, the Commission has inspected the County/Village Connection and
has found the County/Village Connection to be suitable for the purposes intended; and
WHEREAS, the Village is willing to provide such alternate delivery of water to
the County until such time as the Joint Facility is operational and only if such alternate
delivery of water does not impair the Village's ability to service its own customers; and
WHEREAS, the Commission has no objection to the interim service
arrangements described above so long as, after the Joint Facility becomes
i
operational, the County/Village Connection will be operated and maintained in j
accordance with the emergency interconnection terms, conditions, and limitations of
I
Subsection 9N of the Subsequent Customer Contract; and
WHEREAS, the Commission, the County, and the Village each have
determined that is it in their respective best interests to set forth in this Agreement their
understandings concerning the construction and operation of the Joint Facility and the
interim and emergency water deliveries; and
WHEREAS, pursuant to the intergovernmental cooperation provisions of Article
VII, Section 10 of the Illinois Constitution of 1970 and the Illinois Intergovernmental
Cooperation Act, 5 ILCS 22011 et seg., and other applicable authority, the
Commission, the County, and the Village are authorized to enter into this Agreement;
NOW, THEREFORE, it is agreed by, between, and among the Commission, the
County, and the Village as follows:
4
i
I
SECTION 1. PREAMBLES
i
The foregoing recitals are by this reference incorporated herein and made a part
hereof as if fully set forth herein.
SECTION 2. INTERIM WATER DELIVERIES
i
A. Until such time as the Joint Facility becomes operational, any water
i
transmitted and delivered through the CountyNillage Connection shall be treated as
water purchased by the County from the Commission. Notwithstanding any
requirement of the Subsequent Customer Contract to the contrary, the Commission
shall bear no responsibility for the contamination of such water or deterioration of water
quality occurring beyond the Commission's point of delivery to the Village Water
System and title to all such water supplied by the Commission shall remain in the
Commission to the point of delivery to the Village Water System and thereupon shall
pass to the Village and the County as their interests may appear.
B. The County shall furnish, install, and when necessary replace at the
CountyNillage Connection all necessary meters, strainers, and instrumentation for
measuring properly the quantity of water delivered through the CountyNillage
Connection. The County shall have all duty, responsibility, and liability to maintain and
repair the CountyNillage Connection facilities including but not limited to the vault
structure, access hatches, and all other appurtenances.
C. Until such time as the -Joint Facility becomes operational, the
Commission shall have exclusive access to the CountyNillage Connection; provided,
however, that the County and the Village shall have access to the CountyNillage
Connection at reasonable times as approved by the Commission for purposes of
5
I
examination and inspection, but the readings of the meters for billing purposes,
I
calibration, and adjustment of the equipment therein shall be done only by the
i
employees or agents of the Commission. !
i
D. Until such time as the Joint Facility becomes operational, the
's
Commission shall read the meter at the County/Village Connection and the amount of
water delivered to the County Water System through the County/Village Connection
shall be paid to the Commission directly by the County at the rates applicable pursuant
t
to, and in accordance with, the Subsequent Customer Contract.
E. If at any time before the Joint Facility becomes operational it becomes �
I
necessary for the Commission to limit its delivery of Lake Water to the County for any
reason pursuant to the Subsequent Customer Contract and specifically related to the
County, then the Commission may, and shall be entitled to, make or cause the County
or the Village to make all necessary and appropriate adjustments to the CountyNillage
Connection, to assure that the appropriate amount of water is delivered to the County
during such period of curtailment.
G. Until such time as the Joint Facility becomes operational, the rate of
withdrawal from the County/Village Connection shall not exceed the rate allowed by
Subsections 3A and 9M of the Subsequent Customer Contract.
H. The County and the Village each do hereby acknowledge and agree that
the Commission shall not be liable either to the County or to the Village for, and each of
the County and the Village do hereby release and agree to indemnify and hold
harmless the Commission from, any damages occasioned by or in any way related to
any interruption of, limitation on, or delay in, the delivery of water to them or to the
I
f
6
I
I
I
CountyNillage Connection.
i
I. The County shall reimburse the Commission for the full actual cost
incurred by the Commission in connection with preparation, consideration, and review
of this Agreement, including without limitation all legal, engineering, consulting, and
administrative fees, costs, and expenses associated therewith. DuPage County shall
reimburse the Commission for such fees, costs, and expenses, and payment shall be
due within thirty (30) days after receipt of an invoice therefor from the Commission.
SECTION 3. PRICES, TERMS, PAYMENT.
A. The County shall make all required payments to the Commission in
accordance with the terms of the Subsequent Customer Contract. To the extent that
such payments depend upon the amount of Lake Water delivered to the County
Water System, The County payments to the Commission pursuant to the Subsequent
Customer Contract shall be based on readings taken by the Commission of the
CountyNillage Connection Meters.
B. Village's Payments to the Commission. The Village shall make all
required payments to the Commission in accordance with the terms of the Charter
Customer Contract. To the extent that such payments depend on the amount of Lake
Water delivered to the Village System, the Village's payments to the Commission
pursuant to the Charter Customer Contract shall be based on the difference between
the readings taken by the Commission of the Village System Meters and the readings
taken by the Commission of the CountyNillage Connection Meters. If, for any billing
period, the measurement of the amount of Lake Water delivered through the
CountyNillage Connection Meters to the County Water System exceeds the
I
I
7
measurement of the amount of Lake Water delivered through the Village System Meters,
then the difference between such readings shall be deemed to be zero.
C. The County Payments to the Village. During the first twelve (12) months
from the date The County begins accepting water from the Village, The County shall j
i
pay to the Village, for the water transmission, delivery and storage services provided j
under this Agreement, the amount of $2.73 (two dollars and seventy-three cents) per
thousand gallons of water, or fraction thereof, metered by the County/Village
1
Connection Meters (the "wheeling rate"). The Village shall invoice The County monthly
for such services, and payment shall be due within thirty (30) days after invoicing by
the Village. The wheeling rate will be adjusted in the same proportion that the
Village's water rate to its customer base increases. If the Village can demonstrate to l
The County that the Village's actual proportionate increase in a specific cost of
providing the use of the Village system to The County is greater than the proportionate
increase for the same specific cost used in determining the Village's water rate to its
i
retail customers, the Village may propose in writing a higher rate increase. This
I
proposed rate increase shall not become effective unless mutually agreed to by both.
The Village agrees to give The County sixty (60) days written notice prior to any rate
change going into effect.
If The County desires to dispute any payment, or part thereof, due or claimed to
be-due under this Subsection 3C, The County shall nevertheless pay the full amount
of any such payment when due and include with such payment written notification to
the Village 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,
f
8
or within a reasonable period from the time The County knew or should have known
of the facts giving rise to the dispute. It is expressly understood and agreed that no
E
E
dispute over payments due or claimed to be due under this Subsection 3C shall be
referred to arbitration for review or settlement. Upon receipt of a notification of j
E
dispute, representatives of the Village shall meet promptly with representatives of The
County to resolve such dispute. If the Village and The County determine that all or a
portion of the disputed payment should be refunded to County, then such sum shall be
1
refunded. Either party may seek judicial relief relating to such monetary dispute.
Any late payment under this Subsection 3C shall bear interest at the rate of two
percent (2%) per month with the minimum late payment charge being for a one (1)
month period.
SECTION 41 WATER STORAGE CAPACITY. j
The Village shall maintain, during the entire term of this Agreement and any
renewal or extension of it, effective water storage capacity equal to the water storage
capacity required by the Charter Customer Contract for the Village System plus the
storage capacity required for the County Water System pursuant to Subsection 4C of the
County Customer Contract. If at any time the Village's effective water storage capacity
is not sufficient to meet the storage requirements of both the Charter Customer
Contract and the Subsequent Customer Contract as a result of increased storage
requirements of the County Water System (but not. the Village System), then the
deficiency, up to the maximum requirement, of Subsection 4C of the Subsequent
Customer Contract, shall be deemed to be attributable to the County Water System
and shall be corrected, up to the maximum requirement of Subsection 4C of the
Subsequent Customer Contract, by The County pursuant to the terms of the
9
1
Subsequent Customer Contract, unless, by amendment to this Agreement the Village
agrees to correct such deficiency.
SECTION 5. EMERGENCY WATER DELIVERIES
A. Upon completion of the Joint Facility construction and the Joint Facility !
becomes operational, the CountyNillage Connection shall be operated, and maintained
in accordance with the following terms, conditions and limitations, with the exception of
paragraph B(i) below : '
B. Future CountyNillage connections shall not be constructed, operated,
or maintained except in accordance with the following terms, conditions and limitations:
(i) The Village and the County shall submit to the Commission, for its review
and approval, within 60 days following construction of the CountyNillage
Connection, a report detailing the exact location of the CountyNillage
Connection, the manner in which the CountyNillage Connection has j
been and will be operated and maintained, and the terms of any written
or oral agreement for the operation and maintenance of the
CountyNillage Connection. Such report shall include as-built drawings of
the CountyNillage Connection and exact duplicates of any written
agreement for the operation and maintenance of the CountyNillage
Connection. The CountyNillage Connection shall not be operated unless
and until the Commission shall have approved such report. No approval
of such report shall be withheld unless the.CountyNillage Connection, or
any agreement for the operation and maintenance of the CountyNillage
Connection, violate the Charter Customer Contract, the Subsequent
Customer Contract, the Chicago Contract, or applicable laws or
regulations, or pose a threat to the Commission or the Commission
Waterworks System.
(ii) The CountyNillage Connection 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 Village or the County specifically related to the Village or the
County pursuant to the Charter Customer Contract or the Subsequent
Customer Contract, as the case may be, and the CountyNillage
Connection shall not be utilized to circumvent the provisions of any
agreement approved by the Commission for the Alternate Delivery of
Lake Water pursuant to Subsection 4B of the Subsequent Customer
Contract.
10
The CountyNillage Connection shall be operated and maintained in
such a manner as at no time to place or threaten to place the
Commission or the Commission Waterworks System in jeopardy of
failing to meet the terms of the Charter Customer Contract, the
Subsequent Customer Contract, the Chicago Contract, or the regulations
of any agency or governmental authority having jurisdiction over the
operation 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
CountyNillage Connection. The CountyNillage Connection shall not 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 CountyNillage Connection
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 Lake Water through the CountyNillage
Connection for each such emergency condition.
(vi) The Village and the County shall keep a joint record of the amount of
Lake Water delivered through the CountyNillage Connection, a copy of
which shall be provided to the Commission within five days following
termination of the use of the CountyNillage Connection for each such
emergency condition and, in any case, every five days where the
CountyNillage Connection is in continuous operation for more than five
days.
(vii) The amount of Lake Water delivered to the Village Water System or to
the County Water System through the CountyNillage Connection, as the
case may be, shall be paid to the Commission directly by the party
receiving Lake Water through the CountyNillage Connection at the rates
applicable pursuant to, and in accordance with, that party's water
purchase and sale contract with the Commission. In case of service
curtailment, the Village's flow of water through the CountyNillage
Connection shall be considered as a portion of the Village's allocation
from the Commission. In case of service curtailment, the County's flow of
water through the CountyNillage Connection shall be considered as a
portion of the County's allocation from the Commission.
11
. i
I
(viii) The Commission shall have the right to inspect the County/Village I
Connection, and its operation and maintenance. The Commission shall I�
have the right to install seals or such other devices as the Commission, in I
its sole and absolute discretion, determines are necessary to determine i
the operation of the County/Village Connection, and all equipment
required to be installed to allow the installation of the seals or such other !
devices shall be installed at the County's sole cost and expense.
i
(ix) The Commission shall bear no responsibility for, and the Village and the
County shall and do hereby release the Commission from, and agree
that the Commission shall not be liable for, and agree to indemnify and
hold the Commission harmless from, any claims, damages, liabilities,
and litigation that may be occasioned by, connected with, or in any way
related to the construction, operation, and maintenance of the Second
County/Village Connection. The Village and the County shall and do
hereby agree 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 5B.
(x) The operation and maintenance of the County/Village Connection shall
comply in all other respects with the Water Commission Act of 1985, the
Charter Customer Contract, the Subsequent Customer Contract, the
Chicago Contract, and Commission Resolution No. R-13-90, entitled "A
Resolution Expressing the Policy of the DuPage Water Commission
Regarding Subsequent Customers," as clarified by Commission
Resolution No. R-29-95, entitled "A Resolution Clarifying Resolution No.
R-13-90, being A Resolution Expressing the Policy of the DuPage Water
Commission Regarding Subsequent Customers," 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 County/Village
Connection, the County/Village Connection shall be operated and
maintained only in accordance with this Section 5 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 County/Village
Connection to be discontinued, and the Village and the County shall and
do hereby agree to discontinue such use, at any time the terms,
12
I
conditions, and limitations of this Section 5A 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.
C. This Agreement shall constitute the Commission's written approval, as
required by Paragraph 513(ii) above, for the Village to utilize the existing CountyNillage
Connection to transmit and deliver water purchased by the County from the
Commission through the Village Water System to the County Water System for service
to the Existing Properties under non-emergency conditions until, and only until, the
Joint Facility becomes operational; provided, however, that any such use of the
County/Village Connection before the Joint Facility is operational shall be subject to I
the terms, conditions, and limitations set forth in Section 2 of this Agreement; and
provided further, however, that in the event this Agreement is sooner terminated
pursuant to Subsection 6D of this Agreement, the Commission's approval for the
Village to utilize the County/Village Connection under non-emergency conditions shall
be null and void and of no further force or effect.
SECTION 6. LEGAL RELATIONSHIPS AND REQUIREMENTS
A. This Agreement shall be deemed to supplement the Subsequent
Customer Contract to provide for interim and emergency water deliveries to the DuPage
County Unit System, as defined in the Subsequent Customer Contract, of the County.
Except where expressly provided in this Agreement, nothing in this Agreement shall be
construed to be, or applied in any manner, inconsistent with the terms of the Charter
Customer Contract or the Subsequent Customer Contract, and if there is any conflict or
inconsistency between the terms of this Agreement and the terms of either one or both
of those Contracts, then the terms of those Contracts shall control. The Village shall at
all times comply with all terms and conditions of the Charter Customer Contract, and the
13
(
i
i
County shall at all times comply with all terms and conditions of the Subsequent
Customer Contract, including without limitation the making of all payments due
thereunder promptly to the Commission. Under no circumstances shall any dispute of
i
any nature under this Agreement, or the inability to receive water through the
County/Village Connection provided by this Agreement, excuse, delay, or in any other
way affect the Village's or the County's performances under such Contracts, including
i
without limitation the making of all such payments.
Notwithstanding anything to the contrary contained in the Subsequent Customer
Contract, the Commission and the County expressly acknowledge and agree that the
County owns the County/Village Connection and that the County shall not be entitled to
payment or reimbursement from the Commission or the Village for the design, bidding,
contracting, managing, and actual construction, installation, removal, relocation,
replacement, extension, maintenance or improvement of the County/Village
Connection.
B. The Commission, the County, and the Village agree to meet and
cooperate in good faith throughout the term of this Agreement to implement the letter
and spirit of the provisions set forth herein. The Commission, The County and the
Village agree and acknowledge that further details regarding the construction and
operation of the County/Village Connection may be subject to a future agreement.
C. This Agreement may not be assigned by any party, in whole or in part,
without the prior written consent of the other parties, which consent, with respect to the
County and the Village, shall not be unreasonably withheld.
D. Either the Commission or the County may terminate this Agreement
14
3
i
I
upon 30 days advance written notice to the other, with a copy to the Village, in the
following situations:
1. In the event the Joint Facility is not constructed and placed into
operation on or before January 1, 2014.
i
2. In the event the County or Village either jointly or severably shall have j
failed or refused to meet fully any of its obligations under this
Agreement or the Charter Customer Contract or DuPage County
i
Contract, respectively.
i
Upon termination, this Agreement shall be void and of no effect; provided,
however, that the County shall remain responsible for all fees, costs, and expenses
incurred or accrued by the Commission prior to termination of this Agreement, and the
provisions of Subsection 5B of this Agreement shall survive any such termination.
E. In case any one or more of the provisions contained in this Agreement should
be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any
respect, the validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby; provided, however, that if
the remaining parts hereof may not reasonably be construed together without the part or
parts so held invalid or unenforceable, the parties agree to negotiate such reasonable
amendments hereto as shall be required to most nearly conform this Agreement, as
thereby amended, to the original intention of the parties.
15
IN WITNESS WHEREOF, the DuPage Water Commission, the County of
DuPage, and the Village of Oak Brook have caused this Agreement to be executed on
their behalf by their duly authorized officers as of the day and year first above written.
COUNTY OF DuPAGE
Date: By:
Daniel J. Cronin, Chairman
(SEAL)
ATTEST: By:
Gary A. g, County Cl
DuPAGE WATER COMMISSION
I
I
Date: By:
Jame WCh
(SEAL)
ATTEST: By: e� �
Carolyn JohnsM, Clerk
VILLAGE OF OAK BROOK
Date: By:
Gopal G. Lalmalani, Village President
ar
Charlotte K. Pruss, Village Clerk
16
I`I'EH G.G.2)
i(
i
i
OF OAk
pG� 9,9 '
v D
p �
G O
CO U ti-TI
i
i
AGENDA ITEM
Regular Board of Trustees Meeting
of
October 23,2012
I
SUBJECT: INTERGOVERNMENTAL AGREEMENT BETWEEN THE DUPAGE WATER
COMMISSION,THE COUNTY OF DUPAGE AND THE VILLAGE OF OAK BROOK
CONCERNING THE CONSTRUCTION AND OPERATION OF A CONNECTION FACILITY
FOR INTERIM AND EMERGENCY WATER DELIVERIES
FROM: Mike Hullihan P.E.,Village Engineer
BUDGET SOURCE/BUDGET IMPACT: None
RECOMMENDED MOTION: I move that the Village Board approve the agreement
entitled "An Intergovernmental Agreement Providing for
the Sale of Water by the Village of Oak Brook to the
County of Du Page."
Backeround/History:
Du Page County has acquired a small well-supplied water system which serves several businesses. It is
located just north of Butterfield Road in the vicinity of Trans Am Plaza. The County intends to operate this
system as part of the York Township Water System,currently under design. Due to the state of disrepair of
the wells and pumps currently supplying the system,the County wishes to purchase water from the Village
to supply water until the York Township system is completed. A proposed intergovernmental agreement
(IG"A)is attached.
Analysis:
The system in question primarily serves three commercial buildings. The service does not include
fire protection systems and is expected to draw around 3,000 gallons per day. This is well within
the Village system's capability. The IGA proposes a reimbursement rate from the County of$2.73
per thousand gallons. This rate is equal to the Village of Oak Brook out of Village rate minus the
Du Page Water Commission water supply rate. The metered usage to the County system will be
�>p
subtracted from the gross Oak Brook metered usage by the Du Page Water Commission (DWC)
before we are billed. DWC will then bill this amount of water at the wholesale rate to Du Page
County.
The Board approved an Intergovernmental Agreement (IGA) with Du Page County with }
essentially the same terms on October 25, 2011. The Du Page Water Commission has requested
that they become a party to the IGA so it conforms to our terms of sale agreement.
i
Recommendation:
i
I recommend that you approve the IGA to provide for temporary sale of water to the County of
Du Page.
i
I
i
i
i
i