Resolution 2024-48 Resolution No. 2024-48
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 ofthe 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. 2024-48
Page 1
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. 2024-48
Page 2
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. 2024-48
Page 3
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. 2024-48
Page 4
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
81h day of October, A.D. 2024.
Y CLERK
KEN KOCH AYE DAN TRANSIER AYE
ARDEN JOE PLOCHER AYE CRAIG SOLING AYE
CHRIS FUNKHOUSER AYE MATT MAREK AYE
SEAVER TARULIS AYE RUSTY CORNEILS AYE
APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois
thisgi day of 6(/tbt,( , A.D. 2024.
- � J
MAYOR
Attest:
i
C Y CLERK
Resolution No. 2024-48
Page 5
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").
WITNESSETH:
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-1GA Capital Cost Recovery Charge
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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
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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
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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 75t' 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,913, 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
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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
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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 parry 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
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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: rriay((Wpw•c.org
With a copy to:
Phillip A. Luetkehans
Luetkehans, Brady, Garner& Armstrong
2700 International Drive, Suite 305
West Chicago, IL 60185
Email: pal'(r,lbgalaw.coin
If to the City:
City Administrator
United City of Yorkville
651 Prairie Pointe Drive
Yorkville, IL 60560
Email: bolsori a,,yorkville.il.us
With a copy to:
City Attorney
Kathleen Field Orr
Kathleen Field Orr& Associates
1804 North Naper Blvd., Ste. 350
Naperville, IL 60563
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With a copy to:
Irene Schild Caminer
Caminer Law, LLC
2612 W. Sunnyside Ave.
Chicago, IL 60625
Email: Irene((Lcaminerlaw.corn
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.
1. 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.
ATTE . DuPAGE WATER COMMISSION
rn By:
Its: C, Its:
ATTEST: UNITED Y OF YORKVILLE
By: By:
Its: Its: PA o
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