City Council Packet 2024 10-08-24 - revised information
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Agenda Item Summary Memo
Title:
Meeting and Date:
Synopsis:
Council Action Previously Taken:
Date of Action: Action Taken:
Item Number:
Type of Vote Required:
Council Action Requested:
Submitted by:
Agenda Item Notes:
Revised the resolution for the water purchase and sale contract agreement: the waiver of bidding
reference was removed. In addition, a Supermajority vote is no longer required.
Reviewed By:
Legal
Finance
Engineer
City Administrator
Community Development
Purchasing
Police
Public Works
Parks and Recreation
Agenda Item Number
Mayor’s Report #3
Tracking Number
CC 2024-80
DuPage Water Commission Agreements
City Council – October 8, 2024
Majority
Approval
Please see the attached memo.
Bart Olson Administration
Name Department
Revised Information – distributed 10/4/24
Summary
Consideration of four agreements that will cause Yorkville to join the DuPage Water
Commission (DWC).
Background
This item was last discussed by the City Council at the September 24th City Council
meeting, when the City Council approved an amendment to the second escrow agreement
between the City and the DWC which allowed certain project costs to be covered by the existing
escrow. Prior to that meeting, the City Council heard a verbal update at the September 10th
meeting that the final DWC agreements were expected to be ready for consideration at the
October 8th City Council meeting.
The four companion agreements included in this agenda item are:
1) Water Purchase and Sale Contract / Yorkville Subsequent Customer Agreement
a. This is the main agreement that allows Yorkville to join the DWC and receive
Lake Michigan water. The terms of this agreement are relatively standard
between all DWC communities, and so Yorkville’s will mirror the terms that were
included in the agreement from Bartlett (the last community to join DWC before
Yorkville). In general, the agreement covers sale of water to Yorkville,
confirmation that the transmission pipe construction is expected to be complete in
2028 with commissioning of the system and use of the water by Yorkville
immediately thereafter, that Yorkville will pay rates as established by the DWC,
that Yorkville agrees to pay our share of the transmission pipe construction costs,
and that Yorkville agrees to pay a ~$8.01m “capital cost recovery charge” (also
known as a connection fee) to DWC. Said capital cost recovery charge is being
financed by DWC at 0% interest rate and may be offset by costs associated with a
future decision by the City to pay for a transmission main oversizing, as described
more fully in the Capital Cost Recovery Charge intergovernmental agreement.
b. Other items to note within this agreement:
i. The City’s use of water is limited by:
1. Our current IDNR Lake Michigan allocation permit amount (or as
modified by the City and IDNR in the future)
2. Any future DWC curtailment agreement, as contemplated by the
DWC Board and all DWC communities
Memorandum
To: City Council
From: Bart Olson, City Administrator
CC:
Date: October 3, 2024
Subject: DuPage Water Commission Agreements
3. The physical capacity of the system
ii. Yorkville is required to maintain proper storage of water in the amount of
2x the City’s daily average water demand. This requirement is driving the
consideration to build a water storage tank near the receiving stations and
in future areas where the water system is being expanded (i.e. Eldamain
Road). Costs of new water storage tanks related to the receiving stations
have been included in prior Lake Michigan project cost estimates. Costs
of new water storage tanks related to the Eldamain corridor are being
estimated, with the intent to require future data center projects to cover the
cost of the tanks.
iii. The City will construct two receiving stations, one near the Grande
Reserve water tower and water treatment plant, and one expected to be
near Route 71 and 126 (site under discussion for acquisition). DWC will
construct and operate two metering stations adjacent to the City’s
receiving stations.
iv. There are currently 13 DWC board members (2 board members from each
DWC district and one at-large board member). The approval of this
agreement will cause the DWC board member count to increase to 15,
with both of the new DWC members coming from Kendall County. One
of the board members will be chosen from Kendall County by the DuPage
County Board Chair, and the other board member will be appointed by a
majority vote of the Yorkville, Oswego, and Montgomery mayors. Any
future towns added to DWC membership in the future will be put into the
Yorkville/Oswego/Montgomery board district, and will share appointing
authority with our mayors.
2) Waterlink Project Escrow Intergovernmental Agreement
a. This is the main construction funding agreement for the transmission main
project. These costs include land acquisition. This agreement requires Yorkville
to fund its 40.22% share of the project costs in advance of DWC incurring costs
(and at a schedule to be determined at a later date once bids have been received)
and to replenish the escrow account anytime it drops below $30m.
b. Other items to note within this agreement:
i. DWC is offering each town a line of credit in the amount of $7m to use for
construction funding. The interest rates for this line of credit are set at
DWC’s highest interest rate on its investments plus 1% - and thus, it is
unlikely to be a better option than WIFIA, state revolving loan fund, or
even the City’s normal bonds. However, this line-of-credit could be used
if any of the other financing options fall short or if the City misses a
construction funding escrow payment. In the latter scenario, DWC would
have the ability to charge the line-of-credit to offset the City’s non-
payment.
3) Intergovernmental Agreement Concerning Development of Connection Facilities to
Implement Water Service
a. This project covers definitions and processes of the actual construction project for
the transmission main:
i. Defines what components are included in the different cost estimates for
the project
ii. Clarifies that DWC will be responsible for designing and constructing the
connection facilities to be housed on the City’s receiving station properties
iii. Declares DWC to be responsible for land acquisition, including eminent
domain processes if needed
iv. Confirms that DWC will do the project design, construction management,
and final acceptance of the transmission main project and connection
facilities
4) Intergovernmental Agreement concerning the Capital Cost Recovery Charge
a. This agreement confirms Yorkville’s ~$8.01m connection fee to join DWC, gives
Yorkville the ability to pay this connection fee at a 0% interest rate over the next
30 years, and to offset this cost through a future decision to pay for a transmission
main oversizing on one section of pipe in the project from a 48” to a 54” pipe.
b. This future decision on oversizing the pipe is on the table because DWC feels that
other communities along this section of pipe may want to tie into the DWC
system at a future date, and they have elected to direct the overall project to
include this 54” pipe section even though it is not needed to serve Yorkville,
Oswego, and Montgomery (i.e. we could be served with the smaller 48”pipe).
Engineers have estimated that the incremental cost of the 54” pipe as compared to
the 48” pipe will be roughly equal to all three communities connection fees.
Thus, DWC has offered to trade the connection fee for the oversizing cost. If
Yorkville elects to pay for the oversizing, both Yorkville and the DWC will
calculate the value of the difference in interest between the 0% connection fee
interest rate vs. an assumed WIFIA loan interest rate for the oversizing cost. The
benefit to both entities is that DWC will not have to pay for the construction costs
of oversizing the pipe, and Yorkville can push more of its costs into a WIFIA loan
(but with an effective interest rate of 0% for this component).
Recommendation
Staff recommends approval of all four agreements: the water purchase and sale
agreement; the escrow intergovernmental agreement; the development of connection facilities
intergovernmental agreement; the capital cost recovery charge intergovernmental agreement.
Approval of all four agreements by Yorkville follows Oswego’s unanimous approval of the
agreements on October 1st, will lead the way for Montgomery to approve the agreements at their
October 14th Village Board meeting, and for the DWC to take them up at their October 17th
board meeting. Following DWC approval, project bids are slated to begin by the end of 2024
with some construction work expected in the region by early 2025. As a general reminder, EEI
is finalizing water rate projections as part of our WIFIA loan, and these water rate projections are
expected to be discussed by the City Council by the end of 2024.
Finally, it should be noted that the approval of these agreements represents a significant
milestone in a project to choose a new water source first discussed by the City Council more than
a decade ago and resulting in a decision around 2016 to begin to move away from the aquifer.
These documents represent thousands of hours of work by staff members, consultants, engineers,
attorneys, lobbyists, elected officials, and others. This decision sets the community up with a
sustainable water source for existing residents and businesses and allows us to recruit future
commercial and industrial development into the area which should lower the tax burden for
residents in the future.
Resolution No. 2024-____
Page 1
Resolution No. 2024-_____
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-____
Page 2
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-____
Page 3
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-____
Page 4
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
____ day of __________________, A.D. 2024.
______________________________
CITY CLERK
KEN KOCH _________ DAN TRANSIER _________
ARDEN JOE PLOCHER _________ CRAIG SOLING _________
CHRIS FUNKHOUSER _________ MATT MAREK _________
SEAVER TARULIS _________ RUSTY CORNEILS _________
APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois
this ____ day of __________________, A.D. 2024.
______________________________
MAYOR
Attest:
______________________________
CITY CLERK
Resolution No. 2024-____
Page 1
Resolution No. 2024-_____
A RESOLUTION AUTHORIZING THE EXECUTION OF WATERLINK PROJECT
ESCROW INTERGOVERNMENTAL AGREEMENT BETWEEN THE VILLAGE OF
MONTGOMERY, THE VILLAGE OF OSWEGO, THE UNITED CITY OF
YORKVILLE, AND THE DUPAGE WATER COMMISSION
WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City"), the
Village of Oswego (“Oswego”) and the Village of Montgomery (“Montgomery”) are duly
organized units of government of the State of Illinois within the meaning of Article VII, Section
10 of the 1970 Illinois Constitution (collectively, the “WaterLink Communities”); 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 DuPage Water Commission (the “Commission”) is a county water
commission and public corporation under Division 15 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 3720/0.01 et seq.;
and
WHEREAS, the Commission has been organized under the Acts to supply water within
its territorial limits; and
WHEREAS, the WaterLink Communities currently own and operate municipal drinking
water systems served by wells that extract source water from the Ironton-Galesville aquifer;
and
WHEREAS, the WaterLink Communities are within the territorial limits of the
Commission; and
Resolution No. 2024-____
Page 2
WHEREAS, the WaterLink Communities intend to change from the Ironton-Galesville
groundwater source to Lake Michigan source water, through water purchase and sale
agreements with the Commission, and have applied for and been awarded Lake Michigan Water
Allocation Permits from the State of Illinois Department of Natural Resources, Office of Water
Resources for each discrete and non-contiguous service area served by each WaterLink
Community’s Unit System; and
WHEREAS, the WaterLink Communities have conducted extensive study and have
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 Commission owns and maintains a waterworks system as a supplier of
Lake Michigan water to member customers that contract for such service (“Commission’s
Waterworks System”); and
WHEREAS, the parties seek to complete the improvements necessary to connect the
Commission’s Waterworks System to the WaterLink Communities’ individual Unit Systems in
2028; and
WHEREAS, the Commission has entered into a Water Supply Contract with the City of
Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the
Commission and its customers; and
WHEREAS, the Commission’s Water Supply Contract with the City of Chicago is set to
expire in 2041, and the Commission is currently: (1) exploring an alternative solution to
obtaining Lake Michigan water; and (2) in discussions and negotiations with the City of
Resolution No. 2024-____
Page 3
Chicago for a new Water Supply Contract; and
WHEREAS, the Commission will be required to incur certain costs, as defined in the
attached Agreement, in pursuit of connecting the WaterLink Communities to the Commission’s
Waterworks System (the “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 1 and Phase 2 Services; and
WHEREAS, the Commission requires the WaterLink Communities to establish an
additional escrow fund with the Commission to provide a funding source for the Commission
Expenses beyond those incurred for the Phase 1 and Phase 2 Services, the WaterLink Project
Escrow Agreement (the “Agreement”), substantially in the form attached hereto as Exhibit A;
and
WHEREAS, the WaterLink Communities will be responsible for the Connection
Facilities Cost; and
WHEREAS, the WaterLink Communities have previously agreed to each Municipality’s
percentage share of the Connection Facilities Cost pursuant to an Intergovernmental Cost Share
Agreement (the “Cost Share Agreement”) and the WaterLink Communities agree that the costs
paid into the escrow account under this Agreement will mirror the Division of Financial
Responsibilities/Allocation of Costs set forth in the Cost Share 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
Resolution No. 2024-____
Page 4
WHEREAS, the parties deem it to be in their best interests to approve this WaterLink
Project Escrow Agreement.
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. The Mayor and City Council hereby approve the WaterLink Project Escrow
Agreement, and the Mayor and City Clerk are authorized and directed to execute on behalf of the
United City of Yorkville the WaterLink Project Escrow Agreement for the United City of
Yorkville 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.
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
____ day of __________________, A.D. 2024.
______________________________
CITY CLERK
KEN KOCH _________ DAN TRANSIER _________
ARDEN JOE PLOCHER _________ CRAIG SOLING _________
CHRIS FUNKHOUSER _________ MATT MAREK _________
SEAVER TARULIS _________ RUSTY CORNEILS _________
Resolution No. 2024-____
Page 5
APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois
this ____ day of __________________, A.D. 2024.
______________________________
MAYOR
Attest:
______________________________
CITY CLERK
Resolution No. 2024-____
Page 6
WATERLINK PROJECT
ESCROW INTERGOVERNMENTAL AGREEMENT
This WaterLink Project Escrow Intergovernmental Agreement (the “WaterLink Project
Escrow Agreement” or this “Agreement”)) is dated the 17th day of October 2024 between the
Village of Montgomery (“Montgomery”), the Village of Oswego (“Oswego”), and the United City
of Yorkville (“Yorkville”) (Oswego, Montgomery, and Yorkville are collectively referred to
herein as the “WaterLink Communities”) and the DuPage Water Commission (the “Commission”),
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
3720/0.01 et seq. (the “Acts”).
WITNESSETH:
WHEREAS, the Commission has been organized under the Acts to supply water within its
territorial limits; and
WHEREAS, the WaterLink Communities currently own and operate municipal drinking
water systems served by wells that extract source water from the Ironton-Galesville aquifer; and
WHEREAS, the WaterLink Communities are within the territorial limits of the
Commission; and
WHEREAS, the WaterLink Communities intend to change from the Ironton-Galesville
groundwater source to Lake Michigan source water, through water purchase and sale agreements
with the Commission, and have applied for and been awarded Lake Michigan Water Allocation
Permits from the State of Illinois Department of Natural Resources, Office of Water Resources for
each discrete and non-contiguous service area served by each WaterLink Community’s Unit
System (“Service Area”); and
WHEREAS, the WaterLink Communities have conducted extensive study and have
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
WaterLink Project Escrow IGA
Page 2 of 14
WHEREAS, the Commission owns and maintains a waterworks system as a supplier of
Lake Michigan water to member customers that contract for such service (“Commission’s
Waterworks System”); and
WHEREAS, the parties seek to complete the improvements necessary to connect the
Commission’s Waterworks System to the WaterLink Communities’ individual Unit Systems in
2028; and
WHEREAS, the Commission has entered into a Water Supply Contract with the City of
Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the
Commission and its customers; and
WHEREAS, the Commission’s Water Supply Contract with the City of Chicago is set to
expire in 2041, and the Commission is currently: (1) exploring an alternative solution to obtaining
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 create a method of
providing an adequate supply of Lake Michigan water to the Service Area, the Commission and
each of the WaterLink Communities, contemporaneously with this Agreement are entering into
Water Purchase and Sale Contracts (the “Water Purchase Agreements”) and this Agreement
incorporates the defined terms of the Water Purchase Agreements unless otherwise specified
herein; and
WHEREAS, to become a member of the Commission and comply with the Water Purchase
Agreements, each WaterLink Community must pay its proportional share of the costs for the
property owned by the Commission; and
WHEREAS, contemporaneously with this Agreement, the WaterLink Communities and
the Commission are each entering into a Capital Cost Recovery Agreements that establish the
terms and conditions for financing each WaterLink Community’s proportional share of the costs
for the property owned by the Commission; and
WaterLink Project Escrow IGA
Page 3 of 14
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 4 of 14
WHEREAS, pursuant to the Development Agreement, the WaterLink Communities will
be responsible for the Connection Facilities Cost; and
WHEREAS, the WaterLink Communities have previously agreed to each Municipality’s
percentage share of the Connection Facilities Cost pursuant to an Intergovernmental Cost Share
Agreement (the “Cost Share Agreement”). The WaterLink Communities agree that the costs paid
into the escrow account under this WaterLink Project Escrow Agreement will mirror the Division
of Financial Responsibilities/Allocation of Costs set forth in the Cost Share Agreement.
Specifically, Montgomery commits and agrees to pay 24.42%, Yorkville commits and agrees to
pay 40.22%, and Oswego commits and agrees to pay 35.36%. The Commission is not a party to
the Cost Share Agreement and has no responsibility or liability as to any true-up or adjusted
accounting between the WaterLink Communities; and
WHEREAS, pursuant to Article VII, Section 10 of the Illinois Constitution of 1970, and
the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq., the Commission and the WaterLink
Communities are authorized to enter into this WaterLink Project Escrow Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual
covenants and agreements herein contained, the WaterLink Communities and the Commission
hereby agree as follows:
1. The foregoing recitals are by this reference incorporated herein and made a part
hereof as if fully set forth herein. Further, to the extent any capitalized terms in this Agreement
are set forth as a defined term in the Water Purchase Agreements, the capitalized terms in this
Agreement shall have the same meaning in this Agreement as the definition in the Water Purchase
Agreements.
2. The Commission will establish a segregated escrow account for the sole purpose of
funding the Connection Facilities Cost (the “Waterlink Project Escrow Account”). The
WaterLink Communities will each deposit into the Waterlink Project Escrow Account all
payments necessary to fund the Connection Facilities Cost. Any remaining 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 II Services, when those phases are complete, may be transferred
WaterLink Project Escrow IGA
Page 5 of 14
to the WaterLink Project Escrow Account, unless otherwise directed by the WaterLink
Communities.
3. The Commission will draw from the WaterLink Project Escrow Account to pay for
or reimburse any Connection Facilities Cost incurred.
4. The WaterLink Project Escrow Account will be insured and interest-bearing, and
the Commission will provide the WaterLink Communities with Quarterly Statements within
twenty-one (21) days after the end of each quarter: (1) showing the starting and ending balances
for that quarter in the WaterLink Project Escrow Account; and (2) detailing the costs of Connection
Facilities Cost incurred for that quarter including any amounts received or paid from the
WaterLink Project Escrow Account. The WaterLink Communities will have the right to conduct
audits for three years after the termination of this WaterLink Project Escrow Agreement relative
to the WaterLink Project Escrow Account.
5. The Commission will keep a record of all pay requests from the WaterLink Project
Escrow Account for reimbursement of Connection Facilities Cost incurred (the “Pay Request”)
and sufficient documentation of the Connection Facilities Cost incurred in support of the Pay
Request. The documentation will be retained for review by the WaterLink Communities upon
request and included within the Quarterly Statements issued by the Commission.
If at any time during the term of this WaterLink Project Escrow Agreement, the balance in
the WaterLink Project Escrow Account is less than Thirty Million Dollars ($30,000,000.00) (the
“Minimum Balance Amount”), the Commission will notify the WaterLink Communities. Within
thirty (30) days of the Commission notifying the WaterLink Communities under this Paragraph 5,
the WaterLink Communities will each pay the Commission its proportionate share (as set forth in
the Cost Share Agreement) of the request to ensure that the Minimum Balance is met. Failure to
make such payment when required under this Paragraph 5 shall be considered a default of this
Agreement by the WaterLink Communities.
6. The Commission will, 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
WaterLink Project Escrow IGA
Page 6 of 14
(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 1 – 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
WaterLink Project Escrow IGA
Page 7 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 1st 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 10th 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
10th 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 day’s irrevocable notice to the
WaterLink Project Escrow IGA
Page 8 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, 9B, 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 full accounting has been
completed of the expenditures incurred under this WaterLink Project Escrow Agreement.
WaterLink Project Escrow IGA
Page 9 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: may@dpwc.org
WaterLink Project Escrow IGA
Page 10 of 14
With a copy to:
Phillip A. Luetkehans
Luetkehans, Brady, Garner & Armstrong, LLC
105 E. Irving Park Road
Itasca, IL 60143
Email: pal@lbgalaw.com
If to the WaterLink Communities:
Village Administrator
Village of Oswego
100 Parkers Mill
Oswego, IL 60543
Email: info@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@montgomeryil.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 IGA
Page 11 of 14
City Administrator
United City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
Email: bolson@yorkville.il.us
With a copy to:
Kathleen Field Orr & Associates
Kathleen Field Orr
2024 Hickory Road, Suite 205
Homewood, IL 60430
With a copy to:
Irene Schild Caminer
Caminer Law, LLC
2612 W. Sunnyside Ave.
Chicago, IL 60625
Email: Irene@caminerlaw.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 for 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 12 of 14
b. Except as provided herein, the WaterLink Communities and the Commission will
not assign this WaterLink Project Escrow Agreement or any right or privilege any
WaterLink Communities and the Commission may have under this WaterLink
Project Escrow Agreement without the prior written consent of all Parties hereto,
not to be unreasonably withheld conditioned or delayed.
c. This WaterLink Project Escrow Agreement shall be governed by and construed
exclusively under the applicable laws, but not the conflict of laws rules, of the
State of Illinois. Venue for any litigation arising out of this Agreement shall only
be proper in the Eighteenth Judicial Circuit Court, DuPage County, Illinois.
d. The person(s) executing this WaterLink Project Escrow Agreement on behalf of
the Parties hereto warrant that: (i) each WaterLink Community and the
Commission are duly organized and existing; (ii) the individual signing is duly
authorized to execute and deliver this WaterLink Project Escrow Agreement on
behalf of said WaterLink Community or the Commission; (iii) by so executing
this WaterLink Project Escrow Agreement, such WaterLink Community and the
Commission are formally bound to the provisions and conditions contained in this
WaterLink Project Escrow Agreement; and (iv) the entering into this WaterLink
Project Escrow Agreement by a WaterLink Community and the Commission does
not violate any provision of any other agreement to which said WaterLink
Community and the Commission is bound.
e. Each WaterLink Community and the Commission acknowledge that it may be
necessary to execute documents other than those specifically referred to herein in
order to complete the objectives and requirements that are set forth in this
WaterLink Project Escrow Agreement. Each WaterLink Community and the
Commission hereby agree to cooperate with each other by executing such other
documents 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 WaterLink Community and the Commission as evidenced by this
WaterLink Project Escrow Agreement.
WaterLink Project Escrow IGA
Page 13 of 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
_________________________ BY: ________________________
ATTEST: Village of Oswego
_________________________ BY: ________________________
ATTEST: United City of Yorkville
_________________________ BY: ________________________
WaterLink Project Escrow IGA
Page 14 of 14
EXHIBIT A
CONNECTION FACILITIES COST
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
Resolution No. 2024-____
Page 1
Resolution No. 2024-_____
A RESOLUTION AUTHORIZING THE EXECUTION OF AN
INTERGOVERNMENTAL AGREEMENT CONCERNING DEVELOPMENT OF
CONNECTION FACILITIES TO IMPLEMENT WATER SERVICE BY AND
BETWEEN THE VILLAGE OF MONTGOMERY, THE VILLAGE OF OSWEGO, THE
UNITED CITY OF YORKVILLE, AND THE DUPAGE WATER COMMISSION
WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City"), the
Village of Oswego (“Oswego”) and the Village of Montgomery (“Montgomery”) are duly
organized units of government of the State of Illinois within the meaning of Article VII, Section
10 of the 1970 Illinois Constitution (collectively, the “WaterLink Communities”); 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 DuPage Water Commission (the “Commission”) is a county water
commission and public corporation under Division 15 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 3720/0.01 et seq.;
and
WHEREAS, the Commission has been organized under the Acts to supply water within
its territorial limits; and
WHEREAS, the WaterLink Communities currently own and operate municipal drinking
water systems served by wells that extract source water from the Ironton-Galesville aquifer;
and
WHEREAS, the WaterLink Communities are within the territorial limits of the
Commission; and
Resolution No. 2024-____
Page 2
WHEREAS, the WaterLink Communities intend to change from the Ironton-Galesville
groundwater source to Lake Michigan source water, through water purchase and sale
agreements with the Commission, and have applied for and been awarded Lake Michigan Water
Allocation Permits from the State of Illinois Department of Natural Resources, Office of Water
Resources for each discrete and non-contiguous service area served by each WaterLink
Community’s Unit System; and
WHEREAS, the WaterLink Communities have conducted extensive study and have
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 Commission owns and maintains a waterworks system as a supplier of
Lake Michigan water to member customers that contract for such service (“Commission’s
Waterworks System”); and
WHEREAS, the WaterLink Communities seek to connect their individual Unit Systems
to the Commission’s Waterworks System; and
WHEREAS, beginning in 2028 the WaterLink Communities seek to have completed
the improvements to certain of their WaterLink Communities’ individual Unit Systems
necessary to connect to the Commission’s Waterworks System (the “Connection Facilities”);
and
WHEREAS, the Commission has entered into a water supply contract with the City of
Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the
Commission and its customers (“Water Supply Contract”); and
Resolution No. 2024-____
Page 3
WHEREAS, the Commission’s Water Supply Contract with the City of Chicago is set to
expire in 2041 and the Commission is currently: (1) exploring an alternative solution to obtaining
Lake Michigan water; and (2) in discussions and negotiations with the City of Chicago for a new
Water Supply Contract; and
WHEREAS, the construction of certain improvements to the Commission’s
Waterworks System will enable the WaterLink Communities to provide water to the Individual
Unit Systems (the “Improvements”); and
WHEREAS, to carry out their duties and responsibilities, and desiring to create a
method of providing an adequate supply of Lake Michigan water to the Individual Unit
Systems, the Commission and the WaterLink Communities, contemporaneously with this
Agreement, are entering into a Water Purchase and Sale Contract dated October 17, 2024 (the
“Water Purchase Agreement”); and
WHEREAS, it is in the best interests of the Commission and the WaterLink
Communities to coordinate and implement the supply of Lake Michigan water to the Individual
Unit Systems in accordance with the Water Purchase Agreement; and
WHEREAS, the Commission and the WaterLink Communities desire to set forth their
understanding regarding such coordination and implementation in an Intergovernmental
Agreement Concerning Development of Connection Facilities to Implement Water Service,
substantially in the form attached hereto as Exhibit A; and
WHEREAS, the matters set forth in this Agreement will serve the public interest and
assure that the residents of the Individual Unit Systems are provided safe water to the greatest
extent possible; and
WHEREAS, contemporaneously with this Agreement, the WaterLink Communities
Resolution No. 2024-____
Page 4
and the Commission are entering into other agreements including but not limited to a WaterLink
Project Escrow Intergovernmental Agreement to fund the construction of the Connection
Facilities; and
WHEREAS, the WaterLink Communities have previously agreed to each
Municipality’s percentage share of the Connection Facilities Cost pursuant to an
Intergovernmental Cost Share Agreement (the “Cost Share Agreement”). The WaterLink
Communities agree that the costs paid for the Connection Facilities will mirror the Division of
Financial Responsibilities/Allocation of Costs set forth in the Cost Share Agreement; and
WHEREAS, the parties deem it to be in their best interests to approve this
Intergovernmental Agreement Concerning Development of Connection Facilities to Implement
Water Service.
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. The Mayor and City Council hereby approve the Intergovernmental Agreement
Concerning Development of Connection Facilities to Implement Water Service, and the Mayor
and City Clerk are authorized and directed to execute on behalf of the United City of Yorkville the
Intergovernmental Agreement Concerning Development of Connection Facilities to Implement
Water Service, 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.
Resolution No. 2024-____
Page 5
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
____ day of __________________, A.D. 2024.
______________________________
CITY CLERK
KEN KOCH _________ DAN TRANSIER _________
ARDEN JOE PLOCHER _________ CRAIG SOLING _________
CHRIS FUNKHOUSER _________ MATT MAREK _________
SEAVER TARULIS _________ RUSTY CORNEILS _________
APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois
this ____ day of __________________, A.D. 2024.
______________________________
MAYOR
Attest:
______________________________
CITY CLERK
INTERGOVERNMENTAL AGREEMENT CONCERNING DEVELOPMENT OF
CONNECTION FACILITIES TO IMPLEMENT WATER SERVICE
This Intergovernmental Agreement, (the “Agreement”) is dated the 17th day of October,
2024 (the “Effective Date”), by and between the Village of Montgomery (“Montgomery”), the
Village of Oswego (“Oswego”), and the United City of Yorkville (“Yorkville“) (Oswego,
Montgomery, and Yorkville are collectively referred to herein as the “WaterLink Communities”)
and the DuPage Water Commission, (the “Commission”) 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 3720/0.01 et seq. (the “Acts”).
W I T N E S S E T H:
WHEREAS, the Commission has been organized under the Acts to supply water within its
territorial limits; and
WHEREAS, the WaterLink Communities currently own and operate municipal drinking
water systems served by wells that extract source water from the Ironton-Galesville aquifer; and
WHEREAS, the WaterLink Communities are within the territorial limits of the
Commission; and
WHEREAS, the WaterLink Communities intend to change from the Ironton-Galesville
groundwater source to Lake Michigan source water, through a water purchase agreement with the
Commission, and have applied for and been awarded a Lake Michigan Water Allocation Permit
(“Permit”) from the State of Illinois Department of Natural Resources, Office of Water Resources)
for each discrete and non-contiguous service area served by each WaterLink Community’s Unit
System; and
EXHIBIT A
IGA DEVELOPMENT OF CONNECTION FACILITIES
TO IMPLEMENT WATER SERVICE
Page 2 of 14
WHEREAS, the WaterLink Communities have 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 Commission owns and maintains a waterworks system as a supplier of
Lake Michigan water to member customers that contract for such service (“Commission’s
Waterworks System”); and
WHEREAS, the WaterLink Communities seek to connect to their individual Unit Systems
to Lake Michigan through the Commission; and
WHEREAS, beginning in 2028 the WaterLink Communities seek to have completed the
improvements to certain of their WaterLink Communities’ individual Unit Systems necessary to
connect to the Commission’s Waterworks System (the “Connection Facilities”); and
WHEREAS, the Commission has entered into a water supply contract with the City of
Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the
Commission and its customers (“Water Supply Contract”); and
WHEREAS, the Commission’s Water Supply Contract with the City of Chicago is set to
expire in 2041 and the Commission is currently: (1) exploring an alternative solution to obtaining
Lake Michigan water; and (2) in discussions and negotiations with the City of Chicago for a new
Water Supply Contract; and
IGA DEVELOPMENT OF CONNECTION FACILITIES
TO IMPLEMENT WATER SERVICE
Page 3 of 14
WHEREAS, the construction of certain improvements to the Commission’s Waterworks
System will enable the WaterLink Communities to provide water to the Individual Unit Systems
(the “Improvements”); and
WHEREAS, to carry out their duties and responsibilities, and desiring to create a method
of providing an adequate supply of Lake Michigan water to the Individual Unit Systems, the
Commission and the WaterLink Communities, contemporaneously with this Agreement, are
entering into a Water Purchase and Sale Contract dated October 17, 2024 (the “Water Purchase
Agreement”); and
WHEREAS, it is in the best interests of the Commission and the WaterLink Communities
to coordinate and implement the supply of Lake Michigan water to the Individual Unit Systems in
accordance with the Water Purchase Agreement; and
WHEREAS, the Commission and the WaterLink Communities desire to set forth their
understanding regarding such coordination and implementation in this Agreement; and
WHEREAS, the matters set forth in this Agreement will serve the public interest and assure
that the residents of the Individual Unit Systems are provided safe water to the greatest extent
possible; and
WHEREAS, pursuant to Section 10 of Article VII of the Illinois Constitution of 1970, the
provisions of the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq., and other applicable
authority, the Commission and the WaterLink Communities are authorized to enter into this
Agreement; and
WHEREAS, contemporaneously with this Agreement, the WaterLink Communities and
the Commission are entering into other agreements including but not limited to a WaterLink
IGA DEVELOPMENT OF CONNECTION FACILITIES
TO IMPLEMENT WATER SERVICE
Page 4 of 14
Project Escrow Intergovernmental Agreement to fund the construction of the Connection Facilities
(the “WaterLink Escrow Agreement”); and
WHEREAS, the WaterLink Communities have previously agreed to each Municipality’s
percentage share of the Connection Facilities Cost pursuant to an Intergovernmental Cost Share
Agreement (the “Cost Share Agreement”). The WaterLink Communities agree that the costs paid
for the Connection Facilities will mirror the Division of Financial Responsibilities/Allocation of
Costs set forth in the Cost Share Agreement. Specifically, Montgomery commits and agrees to
pay 24.42%, Yorkville commits and agrees to pay 40.22% and Oswego commits and agrees to pay
35.36%. The Commission is not a party to the Cost Share Agreement and has no responsibility or
liability as to any true-up or adjusted accounting between the WaterLink Communities.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth, the Commission and the WaterLink Communities hereby agree
as follows:
SECTION 1. INCORPORATION OF PREAMBLES AND DEFINITIONS FROM
WATER PURCHASE AGREEMENT
The foregoing recitals are by this reference incorporated herein and made a part hereof as
if fully set forth herein. Further, to the extent any capitalized terms in this Agreement are set forth
as a defined term in the Water Purchase Agreement, the capitalized terms in this Agreement will
have the same meaning in this Agreement as the definition in the Water Purchase Agreement.
SECTION 2. CONSTRUCTION OF IMPROVEMENTS; EXTENSION OF SERVICE
A. Description of the Connection Facilities. For purposes of this Agreement, the
Connection Facilities will include the water mains, metering station(s), and appurtenances
necessary to be built by the Commission to provide water to the WaterLink Communities,
IGA DEVELOPMENT OF CONNECTION FACILITIES
TO IMPLEMENT WATER SERVICE
Page 5 of 14
including portions of the Waterworks System constructed by the Commission to initially connect
the WaterLink Communities’ individual Unit Systems to the Commission’s existing Waterworks
System as depicted in preliminary plans attached to the Water Purchase Agreement as Exhibits B-
1 and B-2.
B. Design of the Connection Facilities. As outlined in the Water Purchase Agreement,
the Commission will be the contracting party with the design engineer and will administer the
design contract for the benefit of both the Commission and the WaterLink Communities for the
Connection Facilities. The Commission will keep the WaterLink Communities advised as to the
progress of the design work. The Commission and the WaterLink Communities will confer upon
issues regarding the details of such design work. The final design of the Connection Facilities will
be subject to the review of both the Commission and the WaterLink Communities.
C. Land Acquisition. The Commission will be responsible for the acquisition and
divestment of lands, easements, and rights of way over lands and waters necessary for the
construction, installation, removal, relocation, replacement, extension, and/or improvement of the
Connection Facilities outside the corporate limits of the WaterLink Communities and all
administrative, title, surveying, and legal fees, costs and expenses associated therewith, including,
if necessary, exercising the power of eminent domain to procure any necessary easements, which
expenses will be added to the Connection Facilities Cost amount that the WaterLink Communities
will pay the Commission. The Commission will keep the WaterLink Communities advised of all
land acquisition costs and any necessary condemnation proceedings. All land acquired and costs
associated therewith within the WaterLink Communities will be the sole responsibility of the
WaterLink Communities.
IGA DEVELOPMENT OF CONNECTION FACILITIES
TO IMPLEMENT WATER SERVICE
Page 6 of 14
D. Construction and Acceptance of the Connection Facilities. The Commission will
solicit bids for the construction of the Connection Facilities. The Commission’s standard form of
bidding and construction contract documents will be used. The Commission will solicit, award,
and administer all contracts for the project in the best interest of both the Commission and the
WaterLink Communities and will consult with, and keep advised, the WaterLink Communities’
officials regarding the progress of the work and any problems encountered or changes
recommended. Once the winning contractor(s) and the construction costs have been determined,
the Commission will enter into a construction contract(s) with the selected contractor(s) and will
administer such construction contract(s) in conformance with this Agreement. Any change orders,
as well as final acceptance and approval of the completed Connection Facilities, will be subject to
the final approval of the Commission.
E. Connection Facilities Cost. In accordance with the WaterLink Project Escrow
Intergovernmental Agreement, the Commission, will make available in the form of a Line of Credit
to the WaterLink Communities funds needed for the Connection Facilities Cost, up to the amount
of the Commitment Amount as that term is defined therein, and the WaterLink Communities agree
to reimburse the Commission for those costs.
SECTION 3. DEFAULTS AND REMEDIES
A. Commission Defaults. The occurrence of the following will constitute a default by
the Commission under this Agreement: The failure by the Commission to observe and/or perform
any covenant, condition, and/or agreement on its part to be observed and/or performed under this
Agreement, and the continuation of said failure for thirty (30) days after the Commission’s receipt
of written notice thereof from the WaterLink Communities. However, if said failure cannot be
remedied by the Commission within said thirty (30) day period, and the Commission has diligently
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pursued the resolution of the failure during said thirty (30) days, the period will be extended by
such additional time as may be reasonably required by the Commission to cure or correct said
failure. In no event will the period be extended by more than ninety (90) days. In the event of a
default by the Commission under this Agreement, the WaterLink Communities will have the same
remedies as are provided for, and only the remedies provided for, in the Water Purchase Agreement
for a default by the Commission.
B. WaterLink Communities Defaults. The occurrence of the following will constitute
a default by the WaterLink Communities under this Agreement:
1. The failure by the WaterLink Communities to observe and/or perform any
covenant, condition, and/or agreement on its part to be observed and/or performed
under this Agreement, and the continuation of said failure for thirty (30) days after
the WaterLink Communities’ receipt of written notice thereof from the
Commission. However, if said failure cannot be remedied by the WaterLink
Communities within said thirty (30) day period, and the WaterLink Communities
will have diligently pursued the resolution of the failure during said thirty (30) days,
the period will be extended by such additional time as may be reasonably required
by the WaterLink Communities to cure or correct said failure. In no event will the
period be extended by more than ninety (90) days; or
2. A default by the WaterLink Communities under the WaterLink Project
Escrow Intergovernmental Agreement; or
3. A default by any of the WaterLink Communities under the
Intergovernmental Agreements with each individual WaterLink Community
Concerning Capital Cost Recovery Charge.
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In the event of one of the above defaults, the Commission will: (i) be paid its reasonable
attorneys’ fees and costs incurred in connection with that default, in addition to any attorneys’ fees
and costs incurred in enforcing the terms of this Agreement; (2) be entitled to the right to enforce
a lien against all income derived from the WaterLink Communities individual Unit Systems, other
than that income necessary to pay any loans to the Government of the United States, of the State
of Illinois or their agencies for the construction of the WaterLink Communities individual Unit
Systems, until the line of credit referenced in the WaterLink Project Escrow Intergovernmental
Agreement is paid back in full; and (3) will have the same remedies as are provided for in the
Water Purchase Agreements for a default by the individual WaterLink Communities.
C. Force Majeure. In case by reason of a force majeure event, a party to this
Agreement will be rendered unable wholly or in part to carry out its obligation under this
Agreement, then if such party will give notice and full particulars of such force majeure event in
writing to the other party within a reasonable time after occurrence of the event or cause relied on,
the obligation of the party giving such notice, so far as it is affected by such force majeure event,
will be suspended during the continuance of the inability then claimed, but for no longer period,
and any such party will endeavor to remove or overcome such inability with all reasonable
dispatch. The term “force majeure event” as employed in this Agreement will mean acts of God,
strikes, lockouts, or other industrial disturbances, acts of 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 or of the WaterLink
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Communities to deliver Lake Michigan water, or of the WaterLink Communities to receive Lake
Michigan water, on account of any other causes not reasonably within the control of the party
claiming such inability. The settlement of strikes and lockouts will be entirely within the discretion
of the party having the difficulty and the above requirement that any “force majeure event” will
be remedied with all reasonable dispatch will 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.
SECTION 4. LEGAL RELATIONSHIPS AND REQUIREMENTS
A. Supplemental Agreement. This Agreement will be deemed to supplement the
Water Purchase Agreement in connection with the supply of Lake Michigan water to Oswego’s
Unit System. If there is any other conflict or inconsistency between the terms of this Agreement
and the terms of the Water Purchase Agreement, then the terms of this Agreement will control.
The WaterLink Communities will at all times comply with all terms and conditions of the Water
Purchase Agreement except as otherwise provided in this Agreement.
B. Term of Agreement. This Agreement will continue in full force and effect from the
Effective Date until the Line of Credit is paid in full by the WaterLink Communities.
C. Cooperation and Further Agreements. The Commission and Oswego 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 in this Agreement.
D. Assignment. This Agreement may not be assigned by any party, in whole or in
part, without the prior written consent of the other party.
E. Notices. Any notices under this 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
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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: may@dpwc.org
With a copy to:
Phillip A. Luetkehans
Luetkehans, Brady, Garner & Armstrong
2700 International Drive, Suite 305
West Chicago, IL 60185
Email: pal@lbgalaw.com
If to the WaterLink Communities:
Village Administrator
Village of Oswego
100 Parkers Mill
Oswego, IL 60543
Email: info@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@montgomeyil.org
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With a copy to:
Laura M. Julien
Village Attorney
Mickey Wilson, Weiler, Renzi, Lenert, & Julien, PC
140 Municipal Drive
Sugar Grove, IL 60554
City Administrator
United City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
Email: bolson@yorkville.il.us
With a copy to:
Kathleen Field Orr & Associates
Kathleen Field Orr
2024 Hickory Road, Suite 205
Homewood, IL 60430
With a copy to:
Irene Schild Caminer
Caminer Law, LLC
2612 W. Sunnyside Ave.
Chicago, IL 60625
Email: Irene@caminerlaw.com
By notice complying with the requirements of this Section 4.E, the Commission
and the WaterLink Communities each will have the right to change the address or addressee or
both for all future notices to it, but no notice of a change of address will be effective until actually
received.
F. No Oral Agreements. No oral agreements exist by or between the Commission and
the WaterLink Communities with respect to this Agreement, nor was the making and execution of
this Agreement induced by any representation, statement, warranty, agreement, or action other
than those expressed or explicitly referenced in this Agreement.
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G. No Waiver. No course of dealing or failure of the Commission or the WaterLink
Communities to enforce strictly any term, right, or condition of this Agreement will be construed
as a waiver of such term, right, or condition. No express waiver of any term, right, or condition
of this Agreement will operate as a waiver of any other term, right, or condition.
H. No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit
of the contracting parties, and nothing in this Agreement is intended, either expressly or impliedly,
to provide any right or benefit of any kind whatsoever to any person or entity who is not a party to
this Agreement, or to acknowledge, establish, or impose any legal duty to any third party.
I. Governing Law and Venue. This Agreement will be governed by and construed
exclusively under the applicable laws, but not the conflict of laws rules, of the State of Illinois.
Venue for any litigation arising out of this Agreement will only be proper in the Eighteenth Judicial
Circuit Court, DuPage County, Illinois.
J. Counterparts. This Agreement may be executed in several counterparts, each of
which will be deemed to be an original, and all of which will constitute but one and the same
instrument. Any such counterpart may be signed by one or more of the parties hereto so long as
each of the parties hereto has signed one or more of such counterparts.
K. Authority. The person(s) executing this Agreement on behalf of the Parties hereto
warrant that: (i) such The WaterLink Communities and the Commission are duly organized and
existing; (ii) the individual signing is duly authorized to execute and deliver this Agreement on
behalf of said WaterLink Communities or the Commission; (iii) by so executing this Agreement,
such WaterLink Communities and the Commission are formally bound to the provisions and
conditions contained in this Agreement; and (iv) the entering into this Agreement by the
WaterLink Communities and the Commission does not violate any provision of any other
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agreement to which said WaterLink Communities and the Commission is bound.
L. Mutual Cooperation. The WaterLink Communities and the Commission
acknowledge that it may be necessary to execute documents other than those specifically referred
to herein in order to complete the objectives and requirements that are set forth in this Agreement.
the WaterLink Communities and the Commission hereby agree to cooperate with each other by
executing such other documents 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 the
WaterLink Communities and the Commission as evidenced by this Agreement.
M. Amendment. This 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 Municipality and the
Commission.
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IN WITNESS WHEREOF, The WaterLink Communities 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, all on the date set opposite their
respective corporate names.
ATTEST: DuPage Water Commission
_________________________ BY: ________________________
ATTEST: Village of Montgomery
_________________________ BY: ________________________
ATTEST: Village of Oswego
_________________________ BY: ________________________
ATTEST; United City of Yorkville
_________________________ BY: ________________________
Resolution No. 2024-____
Page 1
Resolution No. 2024-_____
A RESOLUTION AUTHORIZING THE EXECUTION OF AN
INTERGOVERNMENTAL AGREEMENT CONCERNING CAPITAL COST
RECOVERY CHARGE BETWEEN THE UNITED CITY OF YORKVILLE
AND THE DUPAGE WATER COMMISSION
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 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 DuPage Water Commission (the “Commission”) is a county water
commission and public corporation under Division 15 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 3720/0.01 et seq.
(the “Acts”); and
WHEREAS, the Commission has been organized under the Acts to supply water within
its territorial limits; and
WHEREAS, the City currently owns and operates a municipal drinking water system
(“Yorkville Unit System”) served by wells that extract source water from the Ironton-Galesville
aquifer; and
WHEREAS, the City is within the territorial limits of the Commission; and
WHEREAS, the City intends to change from the Ironton-Galesville groundwater source
to Lake Michigan source water, through a Water Purchase and Sale Contract with the DuPage
Resolution No. 2024-____
Page 2
Water Commission, and has applied for and received a Lake Michigan Water Allocation Permit
(“Permit”) from the State of Illinois Department of Natural Resources, Office of Water Resources;
and
WHEREAS, the City has conducted extensive study and has concluded that the most
sustainable alternative water source to serve the City through the municipal waterworks system
currently serving the City, as well as any extensions or improvements of that system, is Lake
Michigan water from the Commission; 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 (“Commission’s
Waterworks System”); and
WHEREAS, the City is seeking to obtain water for its residents beginning in 2028 from
the Commission in the incorporated areas within the City (the “Service Area”); and
WHEREAS, the City seeks to connect to Lake Michigan through the Commission; and
WHEREAS, the Commission has entered into a water supply contract with the City of
Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the
Commission and its customers; and
WHEREAS, the Commission’s water supply contract with the City of Chicago is set to
expire in 2041 and the Commission is currently: (1) exploring an alternative solution to obtaining
Lake Michigan water; and (2) in discussions and negotiations with the City of Chicago for a new
water supply agreement; and
WHEREAS, to carry out their duties and responsibilities, and desire to create a method of
providing an adequate supply of Lake Michigan water to the Yorkville Unit System, the
Commission, and the City, concurrent with the Intergovernmental Agreement Concerning Capital
Resolution No. 2024-____
Page 3
Cost Recovery Charge, substantially in the form (the “Agreement”), attached hereto as Exhibit A,
are entering into the Water Purchase and Sale Contract dated October 17, 2024, WaterLink Project
Escrow Intergovernmental Agreement, and an Intergovernmental Agreement Concerning
Development of Connection Facilities to Implement Water Service; and
WHEREAS, to become a member of the Commission and comply with the Water
Purchase and Sale Contract, the City must pay its proportional share of the costs for the property
owned by the Commission (the “Capital Cost Recovery Charge”); and
WHEREAS, the Commission previously enacted Resolution R-79-04 allowing the
Commission the ability to finance the Capital Cost Recovery Charge for potential Subsequent
Customers (customers other than its original customers) requesting such accommodation on a
case-by case basis; and
WHEREAS, the matters set forth in the Agreement will serve the public interest, and the
Commission and the City deem it to be in each of their best interests for the Commission to provide
financing to the City for the money necessary to pay the Capital Cost Recovery Charge and enter
into the Agreement.
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. The Mayor and City Council hereby approve the Intergovernmental Agreement
Concerning Capital Cost Recovery Charge, and the Mayor and City Clerk are authorized and
directed to execute on behalf of the United City of Yorkville the Intergovernmental Agreement
Concerning Capital Cost Recovery Charge, 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.
Resolution No. 2024-____
Page 4
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-____
Page 5
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
____ day of __________________, A.D. 2024.
______________________________
CITY CLERK
KEN KOCH _________ DAN TRANSIER _________
ARDEN JOE PLOCHER _________ CRAIG SOLING _________
CHRIS FUNKHOUSER _________ MATT MAREK _________
SEAVER TARULIS _________ RUSTY CORNEILS _________
APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois
this ____ day of __________________, A.D. 2024.
______________________________
MAYOR
Attest:
______________________________
CITY CLERK
Yorkville -IGA Capital Cost Recovery Charge
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INTERGOVERNMENTAL AGREEMENT WITH THE UNITED CITY OF
YORKVILLE CONCERNING CAPITAL COST RECOVERY CHARGE
This Intergovernmental Agreement, (the “Agreement”) is dated the 17th day of October
2024 (the “Effective Date”), by and between the United City of Yorkville (“City”) and the DuPage
Water Commission (the “Commission”), 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 3720/0.01 et seq. (the “Acts”).
W I T N E S S E T H:
WHEREAS, the Commission has been organized under the Acts to supply water within its
territorial limits; and
WHEREAS, the City currently owns and operates a municipal drinking water system
(“Yorkville Unit System”) served by wells that extract source water from the Ironton-Galesville
aquifer; and
WHEREAS, the City is within the territorial limits of the Commission; and
WHEREAS, the City intends to change from the Ironton-Galesville groundwater source to
Lake Michigan source water, through a Water Purchase and Sale Contract with the DuPage Water
Commission, and has applied for and received a Lake Michigan Water Allocation Permit
(“Permit”) from the State of Illinois Department of Natural Resources, Office of Water Resources;
and
WHEREAS, the City has conducted extensive study and has concluded that the most
sustainable alternative water source to serve the City through the municipal waterworks system
currently serving the City, as well as any extensions or improvements of that system, is Lake
Michigan water from the Commission; and
WHEREAS, the Commission owns and maintains a waterworks system as a supplier of
Yorkville -IGA Capital Cost Recovery Charge
Page 2 of 11
Lake Michigan water to member customers that contract for such service (“Commission’s
Waterworks System”); and
WHEREAS, the City is seeking to obtain water for its residents beginning in 2028 from
the Commission in the incorporated areas within the City (the “Service Area”); and
WHEREAS, the City seeks to connect to Lake Michigan through the Commission; and
WHEREAS, the Commission has entered into a water supply contract with the City of
Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the
Commission and its customers; and
WHEREAS, the Commission’s water supply contract with the City of Chicago is set to
expire in 2041 and the Commission is currently: (1) exploring an alternative solution to obtaining
Lake Michigan water; and (2) in discussions and negotiations with the City of Chicago for a new
water supply agreement; and
WHEREAS, to carry out their duties and responsibilities, and desire to create a method of
providing an adequate supply of Lake Michigan water to the Yorkville Unit System, the
Commission, and the City, concurrent with this Agreement, are entering into the Water Purchase
and Sale Contract dated October 17, 2024, WaterLink Project Escrow Intergovernmental
Agreement, and an Intergovernmental Agreement Concerning Development of Connection
Facilities to Implement Water Service; and
WHEREAS, to become a member of the Commission and comply with the Water Purchase
and Sale Contract, the City must pay its proportional share of the costs for the property owned by
the Commission (the “Capital Cost Recovery Charge”); and
WHEREAS, the Commission previously enacted Resolution R-79-04 allowing the
Commission the ability to finance the Capital Cost Recovery Charge for potential Subsequent
Yorkville -IGA Capital Cost Recovery Charge
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Customers (customers other than its original customers) requesting such accommodation on a
case-by case basis; and
WHEREAS, the matters set forth in this Agreement will serve the public interest, and the
Commission and the City deem it to be in each of their best interests for the Commission to provide
financing to the City for the money necessary to pay the Capital Cost Recovery Charge and enter
into this Agreement; and
WHEREAS, pursuant to Section 10 of Article VII of the Illinois Constitution of 1970, the
provisions of the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq., and other applicable
authority, the Commission and the City are authorized to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth, the Commission and the City hereby agree as follows:
SECTION 1. PREAMBLES
The foregoing recitals are by this reference incorporated herein and made a part hereof as
if fully set forth herein.
SECTION 2. COMMISSION FINANCING
A. Capital Cost Recovery Financing. The Commission will, after the execution and
delivery of this Agreement, provide financing to the City in the amount of $8,013,886.00 (the
“Capital Cost Recovery Amount”).
B. Payment Terms.
1. The City will pay the Commission the principal balance of the Capital Cost
Recovery Amount in 360 monthly installments, commencing at the time the
first payment is due under Subsection 7M in the Water Purchase and Sale
Contract (the “Monthly Payment Date”), and continuing in successive
monthly installments on each Monthly Payment Date, with the final
Yorkville -IGA Capital Cost Recovery Charge
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payment of any principal, if not sooner paid, on the 360th Monthly Payment
Date. Each of the 360 monthly installments of principal for the Capital Cost
Recovery Amount will be in the amount of $22,260.79, except that the final
payment will be in the amount of $22,262.39.
2. Interest on the unpaid principal balance of the Capital Cost Recovery
Amount, will accrue at the rate of zero percent (0%) per annum.
C. Tender of Capital Cost Recovery Amount Payments. Payments of the principal of
and interest will be made in lawful money of the United States of America in federal or other
immediately available funds.
D. Asset-in-Kind Contribution. To the extent the City agrees to pay for a portion of
the increase in size of the primary 48” western pipeline (commencing at Book Road and 75th Street
and extending west of the Fox River to a termination point at Orchard Road, also known as “TW
6/25” in the DWC naming convention), from the baseline pipe size to 54”, the value of that
contribution by the City will be mutually agreed upon and set forth in a separate agreement
between the Commission and the City before the closing of the WIFIA Loan.
E. Covenants. The covenants set forth in Subsections 9A, 9B, 9C, and 9D of the Water
Purchase and Sale Contract are incorporated into this Agreement by reference.
SECTION 3. DEFAULTS AND REMEDIES
A. Commission Defaults. The occurrence of the following will constitute a default by
the Commission under this Agreement: The failure by the Commission to observe and/or perform
any covenant, condition, and/or agreement on its part to be observed and/or performed under this
Agreement, and the continuation of said failure for thirty (30) days after the Commission’s receipt
of written notice thereof from the City. However, if said failure cannot be remedied by the
Commission within said thirty (30) day period and the Commission has diligently pursued the
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resolution of the failure during said thirty (30) days, the period will be extended by such additional
time as may be reasonably required by the Commission to cure or correct said failure. In no event
will the period be extended by more than ninety (90) days. In the event of a default by the
Commission under this Agreement, the City will have the same remedies as are provided for, and
only the remedies provided for, in the Water Purchase and Sale Contract for a default by the
Commission.
B. City Defaults. The occurrence of the following will constitute a default by the City
under this Agreement:
1. The failure by the City to observe and/or perform any covenant, condition,
and/or agreement on its part to be observed and/or performed under this
Agreement, and the continuation of said failure for thirty (30) days after the
City’s receipt of written notice thereof from the Commission. However, if
said failure cannot be remedied by the City within said thirty (30) day period
and the City has diligently pursued the resolution of the failure during said
thirty (30) days, the period will be extended by such additional time as may
be reasonably required by the City to cure or correct said failure. In no
event will the period be extended by more than ninety (90) days. In the
event of a default by the City under this Agreement, the Commission will
have the same remedies as are provided for, and only the remedies provided
for, in the Water Purchase and Sale Contract for a default by the City;
2. A default under the October 17, 2024 Intergovernmental Agreement
Concerning Development of Connection Facilities to Implement Water
Service; or
Yorkville -IGA Capital Cost Recovery Charge
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3. A default under the October 17, 2024 WaterLink Project Escrow
Intergovernmental Agreement.
In the event of a default by the City, the Commission will: (i) be paid its reasonable
attorneys’ fees and costs incurred in connection with that default, in addition to any attorneys’ fees
and costs incurred in enforcing the terms of this Agreement; (2) be entitled to the right to enforce
a lien against all income derived from the Yorkville Unit System, other than that income necessary
to pay any loans to the State of Illinois or its agencies for the construction of the Yorkville Unit
System, until the City’s Capital Cost Recovery Amount and any amounts due from the City under
the WaterLink Project Escrow Intergovernmental Agreement are paid back in full; and (3) will
have the same remedies as are provided for in the Water Purchase and Sale Contract for a default
by the City.
C. Force Majeure. In case by reason of a force majeure event, either party to this
Agreement will be rendered unable wholly or in part to carry out its obligation under this
Agreement, then if such party will give notice and full particulars of such force majeure event in
writing to the other party within a reasonable time after occurrence of the event or cause relied on,
the obligation of the party giving such notice, so far as it is affected by such force majeure event,
will be suspended during the continuance of the inability then claimed, but for no longer period,
and any such party will endeavor to remove or overcome such inability with all reasonable
dispatch. The term “force majeure event” as employed in this Agreement will mean acts of God,
strikes, lockouts, or other industrial disturbances, acts of 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
Yorkville -IGA Capital Cost Recovery Charge
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failure of water supply, and inability on the part of the Commission or of the City to deliver Lake
Michigan water, or of the City to receive Lake Michigan water, on account of any other causes not
reasonably within the control of the party claiming such inability. The settlement of strikes and
lockouts will be entirely within the discretion of the party having the difficulty, and the above
requirement that any “force majeure event” will be remedied with all reasonable dispatch will 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.
SECTION 4. LEGAL RELATIONSHIPS AND REQUIREMENTS
A. Supplemental Agreement. This Agreement will be deemed to supplement the
Water Purchase and Sale Contract in connection with the supply of Lake Michigan water to the
Yorkville Unit System. If there is any other conflict or inconsistency between the terms of this
Agreement and the terms of the Water Purchase and Sale Contract, then the terms of this
Agreement will control. The City will at all times comply with all terms and conditions of the
Water Purchase and Sale Contract, except as otherwise provided in this Agreement.
B. Term of Agreement. This Agreement will continue in full force and effect from the
Effective Date until the Capital Cost Recovery Amount is paid in full by the City.
C. Cooperation and Further Agreements. The Commission and the City agree to
cooperate in good faith throughout the term of this Agreement to implement the letter and spirit of
the provisions set forth in this Agreement.
D. Assignment. This Agreement may not be assigned by any party, in whole or in
part, without the prior written consent of the other party.
E. Notices. Any notices under this 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
Yorkville -IGA Capital Cost Recovery Charge
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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: may@dpwc.org
With a copy to:
Phillip A. Luetkehans
Luetkehans, Brady, Garner & Armstrong
2700 International Drive, Suite 305
West Chicago, IL 60185
Email: pal@lbgalaw.com
If to the City:
City Administrator
United City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
Email: bolson@yorkville.il.us
With a copy to:
City Attorney
Kathleen Field Orr
Kathleen Field Orr & Associates
2024 Hickory Road, Suite 205
Homewood, IL 60430
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With a copy to:
Irene Schild Caminer
Caminer Law, LLC
2612 W. Sunnyside Ave.
Chicago, IL 60625
Email: Irene@caminerlaw.com
By notice complying with the requirements of this Section 4.E, the Commission and the City
each will have the right to change the address or addressee or both for all future notices to it, but
no notice of a change of address will be effective until actually received.
F. No Oral Agreements. No oral agreements exist by or between the Commission and
the City with respect to this Agreement, nor was the making and execution of this Agreement
induced by any representation, statement, warranty, agreement, or action other than those
expressed or explicitly referenced in this Agreement.
G. No Waiver. No course of dealing or failure of the Commission or the City to
enforce strictly any term, right, or condition of this Agreement will be construed as a waiver of
such term, right, or condition. No express waiver of any term, right, or condition of this Agreement
will operate as a waiver of any other term, right, or condition.
H. No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit
of the contracting parties, and nothing in this Agreement is intended, either expressly or impliedly,
to provide any right or benefit of any kind whatsoever to any person or entity who is not a party to
this Agreement, or to acknowledge, establish, or impose any legal duty to any third party.
I. Governing Law and Venue. This Agreement will be governed by and construed
exclusively under the applicable laws, but not the conflict of laws rules, of the State of Illinois.
Venue for any litigation arising out of this Agreement will only be proper in the Eighteenth Judicial
Circuit Court, DuPage County, Illinois.
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J. Counterparts. This Agreement may be executed in several counterparts, each of
which will be deemed to be an original, and all of which will constitute but one and the same
instrument. Any such counterpart may be signed by one or more of the parties hereto so long as
each of the parties hereto has signed one or more of such counterparts.
K. Authority. The person(s) executing this Agreement on behalf of the Parties hereto
warrant that: (i) such the City and the Commission are duly organized and existing; (ii) the
individual signing is duly authorized to execute and deliver this Agreement on behalf of said City
or the Commission; (iii) by so executing this Agreement, such City and the Commission are
formally bound to the provisions and conditions contained in this Agreement; and (iv) the entering
into this Agreement by the City and the Commission does not violate any provision of any other
agreement to which said City and the Commission is bound.
L. Mutual Cooperation. The City and the Commission acknowledge that it may be
necessary to execute documents other than those specifically referred to herein in order to complete
the objectives and requirements that are set forth in this Agreement. The City and the Commission
hereby agree to cooperate with each other by executing such other documents 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 the City and the Commission as evidenced by this
Agreement.
M. Amendment. This Agreement is the entire agreement between the City and the
Commission regarding its subject matter and may not be changed or amended except pursuant to
a written instrument signed by the City and the Commission.
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IN WITNESS WHEREOF, the City 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: __________________________ By: __________________________
Its: __________________________ Its: __________________________
ATTEST: UNITED CITY OF YORKVILLE
By: __________________________ By: __________________________
Its: __________________________ Its: __________________________