Resolution 2024-40 Resolution No.2024-40
RESOLUTION AUTHORIZING AN AMENDMENT TO THE SECOND ESCROW
INTERGOVERNMENTAL AGREEMENT BY AND AMONG THE UNITED CITY
OF YORKVILLE,THE VILLAGE OF OSWEGO, THE VILLAGE OF
MONTGOMERY 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 "Municipalities"); 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.;
and
WHEREAS, on March 12, 2024, the City Council of the United City of Yorkville
approved Resolution No. CC-2024-17, authorizing the execution of a second escrow
intergovernmental agreement between the Village of Montgomery, the Village of Oswego, the
United City of Yorkville, and the DuPage Water Commission (the"Parties") related to Phase 2
engineering services; and
WHEREAS, the Illinois Department of Transportation ("IDOT") is planning to construct
storm sewer work along the future water transmission main route along Illinois Route 71 for the
Parties' future connection to Lake Michigan water; and
Resolution No. 2024-40
Page 1
WHEREAS, instead of installing reinforced concrete pipe storm sewer in the areas as
planned, IDOT has agreed to install water main quality piping for the storm sewer, which would
allow the Parties to locate their water transmission main in close proximity to IDOT's storm sewer
per the Illinois Environmental Protection Agency's ("IEPA") separation requirements; and
WHEREAS, installation of water main quality piping for the storm sewer would cause
IDOT to incur an additional $90,000 in change orders on the planned sewer work; and
WHEREAS, by paying $90,000 for the IDOT change orders, the Parties have the ability
to install the water transmission main near IDOT's storm sewer, and the Parties would not be
required to undo and reinstall IDOT's storm sewers, causing an estimated saving upwards of
$300,000; and
WHEREAS, while the account established under the second escrow intergovernmental
agreement has funds available to pay for the change order, the agreement does not specifically
include the ability to pay for construction costs out of the account; and
WHEREAS, the Parties deem it to be in their best interests to amend the second escrow
intergovernmental agreement to allow the escrow funds to pay for the IDOT change order.
NOW,THEREFORE,BE IT RESOLVED by the Mayor and City Council ofthe United
City of Yorkville, Kendall County, Illinois, as follows:
Section 1. The recitals set forth above are incorporated into this Resolution as if fully restated
herein.
Section 2.An Amendment to the Second Escrow Intergovernmental Agreement, in the form
attached hereto and made a part hereof, is hereby approved, and the Mayor and City Clerk are hereby
authorized to execute said Agreement.
Section 3. That this Resolution shall be in full force and effect from and after its passage
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and approval as provided by law.
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois
this 241h day of September, A.D. 2024.
I CLERK
KEN KOCH ABSENT 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
this;Wday of , ,("R1/qUrA.D. 2024.
t
MAYOR
Attest:
CLERK
Resolution No. 2024-40
Page 3
EXHIBIT A
AMENDMENT TO THE SECOND ESCROW INTERGOVERNMENTAL AGREEMENT
This Amendment to the Second Escrow Intergovernmental Agreement(the"Amendment")
is dated the 19`h day of September, 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 "Municipalities") 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, on March 24, 2024, the Commission and the Municipalities entered into the
Second Escrow Intergovernmental Agreement (the "IGA") for the purpose of funding an escrow
for Phase 2 engineering services (the "Escrow"); and
WHEREAS, the Commission and the Municipalities are negotiating and intend to enter
into a Water Purchase and Sale Contract(the"Water Purchase Agreement")for the supply of Lake
Michigan Water to the Municipalities; and
WHEREAS, as of the date of this amendment the Escrow maintains a sufficient balance
and is not expected to need to be replenished before the execution of the Water Purchase
Agreement; and
WHEREAS, the Commission is in the process of entering into a Funding Resolution and
Letter of Intent (the "Resolution and LOI") with the Illinois Department of Transportation
("IDOT") for the modification of an IDOT project entitled IL Route 71 Gravity Storm Sewer
Replacement to include a water quality pipe(the "IDOT Project"); and
WHEREAS, the IDOT Project impacts the design and construction of the project to build
a connection between the Municipalities and the DWC facilities; and
WHEREAS, the Water Purchase Agreement will not be finalized before the Commission
needs to enter into the Resolution and LOI; and
WHEREAS, the IDOT Project will save the Municipalities significant engineering and
construction costs as it relates to IEPA and Illinois Pollution Control Board requirements of
minimal separation of non-potable water systems from potable water systems; and
WHEREAS,the IGA does not specifically include the ability to pay for construction costs
out of the Escrow; and
WHEREAS, the parties deem it to be in their best interests to amend the IGA for Phase 2
engineering services to include the funding of the IDOT Project and allow the Escrow funds to
pay for the Phase 2 engineering services, including the IDOT Project.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual
covenants and agreements herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the IGA is hereby amended as follows:
I. The recitals contained in the Preamble above will become a part of this Amendment
to the Second Escrow Agreement as if fully set forth herein.
2. Capitalized terms used, but not otherwise defined herein, shall their respective
meanings in the IGA.
3. Section 3 of the IGA is hereby amended to state as follows:
The Commission will establish a segregated Escrow Account for the sole purpose
of funding Commission Expenses. The Commission will draw from the Escrow
Account to pay for or reimburse the design engineering costs of Commission
Expenses along with the costs expended for the Project. Any remaining funds from
the First Escrow Agreement will remain in the account and can be utilized for Phase
2 activities.
4. Except as expressly amended by this Amendment,the remaining terms, covenants,
conditions, and provisions of the IGA shall remain unchanged and in full force and effect, and this
Amendment and the IGA shall constitute the full, true, and complete agreement between the
parties.
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5. This Amendment shall be binding upon and inure to the benefit of the parties, and
their successors and assigns.
6. If any provision of this Amendment is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision shall be fully
severable. This Amendment shall be construed and enforceable as if the illegal, invalid or
unenforceable provision had never comprised a part of it, and the remaining provisions of this
Amendment shall remain in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance here from. Furthermore, in lieu of such illegal,invalid
or unenforceable provision, there shall be added automatically as a part of this Amendment, a
provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible
and legal, valid and enforceable.
7. This Amendment may be executed in counterparts, each of which shall be deemed
an original instrument, but all such counterparts together shall constitute but one agreement.
Delivery of an executed counterpart signature page by facsimile or electronic transmittal (PDF) is
as effective as executing and delivering this Amendment in the presence of the other parties to this
Amendment.
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IN WITNESS WHEREOF, each Municipality 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
B
ATTEST; United City of Yorkville
BY�
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