HomeMy WebLinkAbout7.1 A RESOLUTION AUTHORIZING THE MAYOR TO SIGN AN INTERGOVERNMENTAL AGREEMENT WITH THE ILLINOIS DEPARTMENT OF NATURAL RESOURCES (IDNR) TO HELP FUND CONSTRUCTION OF A SUPPLEMENTAL STORM WATER PUMPING STATION AT LEVEE 37.Item Cover Page
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wubject A RESOLUTION AUTHORIZING THE MAYOR TO
SIGN 1 INTERGOVERNMENTAL
•R1 1 R
WITH THE ILLINOIS DEPARTMENT OF NATURAL
RESOURCES (IDNR) TO HELP FUND
CONSTRUCTION OF A SUPPLEMENTAL STORM
WATER PUMPING STATION AT LEVEE 37,
Meeting April 20, 2021 - A. MEETING OF THE MOUNT
PROSPECT BOA.
Impact
_'
lb•llar Amount $305,558-00
Ludget Source•• • •l Construction Fund
Category
Type Resolution
Levee 37 was designed to protect homes from inundation by the Des Plaines
River. The levee wall serves as w physical :w between• !river crestsand
the adjacent residential neighborhoods. It was designed and constructed by the
U.S. Army Corps of Engineers (USACE). Local partners included the Illinois
Department of Natural Resources (IDNR), the Illinois Department of
Transportation, the City of Prospect Heights, and the Village of Mount Prospect.
Construction .substantiallycompleted 2011.
The design of the levee system includes four (4) pumping stations. Two (2) of
these pumping w • are w ' • in Mount Prospect(Pump w • w • Pump
Station
The levee provides effective protection from river flooding. It was tested by the
record Des Plaines River crest in 2013 and several subsequent elevated crests that
would have generated flooding conditions if the levee were not constructed. It is
effective because it forms a complete seal between the river and adjacent land.
This seal prevents the river from overtopping its banks. It also prevents rain
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water collected in the storm sewers tributarydischarging
river.
When the river level rises, backwater valves on the storm sewer discharge pipes
close; isolating the storm sewers from the river. These devices prevent river water
from flooding adjacent neighborhoods via the storm sewer system. This mode of
flooding occurred during a river crest in 1987 that damaged dozens of homes and
rendered local streets impassable for days.
When the storm sewer backwater valves are closed, rainwater that falls in the
neighborhoods near the levee is diverted to the pumping stations. The pumping
stations were designed and constructed by the USACE as part of the levee project.
The pumps have capacity to discharge water at a combined rate of 42 cubic feet
! _ • !' (CFS).
Under normal weather and river conditions,, rainwater is collected by the storm
sewer system and conveyed to the river via gravity discharge (no pumping
stations) at a rate of approximately 240 CFS.
The original !''! of e levee assumed that the circumstance
river level is high, storm sewer backwater valves are closed, and significant rain
falls in adjacent neighborhoods was rare. However, it is our experience that this
condition is much more commonplace. Street and structure flooding occurs
because of the inadequate pump station discharge rate.
USACEI IDNR, and the Village have agreed that the discharge rate of the pumping
stations should be increased from approximately 42 CFS to as close to 240 CFS as
practical.
constructAfter final accounting was completed,, USACE determined it was owed almost $3
million from IDNR for certain expenditures made during levee construction.
Pursuant to prior agreements between USACE and IDNR, some of these
expenditures were the responsibility of IDNR-
IDNR, USACE,, and the Village agreed to use these excess funds to design and
. • ! pumping ! Lafor Levee 37.
IDNR has remitted $2,971,130-18 to USACE. Subsequently,, USACE has developed
,letailed plans, specifications, and bid documents necessary to let a Levee 37
pump station improvement project for public bidding.
The project scope includes the construction of one (1) supplemental pump station
adjacent to Pump Station 2. The attached plans and bid specifications define the
2
This supplemental pump station will work in conjunction with the existing pump
stations to increase discharge capacity by 120 CFS. The total discharge capacity
for the levee pumping system will increase from 42 CFS to 162 CFS.
USACE has utilized $424,231.44 to date for design and engineering associated
with project development leaving approximately $2,,546,898-74 available for the
proposed • •n contract and USACE constructionengineering •
On March 10,, 2021,, USACE issued a notice of award to Rausch Infrastructure., LLC
*f Des Plaines,, Illinois construct the supplementalr station at a cost• •
exceed• 111addition,estimates --d $450,,000 foe
construction engineering, contract administration, and contingencies. The total
cost to construct the supplementalpump station is $4, 111 • '•
previously, USACE presently has $2,,546,,898-74 available; resulting in a
$1,590,101.26 ! • gap.
However, IDNR has agreed to provide substantial additional funding for the
project. Specifically, IDNR has pledged $1,284,543 of new money to the project
thereby reducing the funding gap to $305,,558-26.
This gap can be mitigated further by eliminating a portion of the proposed scope
of work.Specifically,part of the project r-• - • • an existing storm
Howeversewer connection between the junction chamber behind backflow structure #1 and
the existing pump station #2. This work is indicated on the attached plan sheet.
! this portion of the work# likely limit the ability•
convey storm. • . . • hamper anticipated increases
pump discharge r.
Therefore, staff does not recommend reducing the scope of work for the
supplemental pump station. Instead, staff recommendsfunding the.! with fund
agreementbalance from the Flood Control Construction Fund.
Attached for the Village Board's consideration,, is a proposed intergovernmental
. . mechanism for! • disburse funds• IDNR for
'' purpose of constructing the supplemental• . pump station.
resolutionAlternatives
1. Pass a i ing the Mayor to sign an intergovernmental
agreement with IDNR to help fund construction
pumpingwater i .
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2. Action at the discretion • the Village Board.
Staff Recommendation
Staff
• that the Village Board approve a resolution authorizing the
Mayor to sign an intergovernmental agreement with IDNR to help fund
construction of a supplemental storm water pumping station at Levee 37.
ATTACH M E NTS:
IFA Exhibits A-D.pdf
Possible Scope Reducation Plan Sheet. pdf
3-10-21 DRAFT - LC IDNR-Mt Prospect Joint Funding Agreement - Pump Station Extra
Funds 003.pdf
Resolution INDR agreeement levee 37.pdf
Exhibit A
PROJECT COOPERATION AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
STATE OF ILLINOIS DEPARTMENT OF NATURAL RESOURCES
FOR CONSTRUCTION OF THE
DES PLAINES RIVER, ILLINOIS PROJECT
THIS AGREEMENT 'is entered into the day of
20,61 by and between the Department of the Army (hereinafter the
"Government"), represented by the District Engineer, and State of Illinois Department of
Natural Resources, hereinafter the "Non -Federal Sponsor, represented by the Director, State
of Iiiin is/Department of Natural Resources (hereinafter the "Non -Federal Sponsor").
ES SETH, THAT:
WHEREAS, construction of the Des Plaines River Project in northeastern Illinois,
'f in
more speci ically, along the upper Des Pla' 6s River and tributaries from the Wisconsin
border in Wadsworth, Illinois, southward to Riverside, Illinois, was aiithonzed by the Water
Resources Development Act (WRDA) of 1999, Section 10 1 (b)(1 0), dated August 17, 1999"
WHEREAS, the Government and the Non -Federal Sponsor des -ire to enter 'Into a
Project Cooperation Agreement for construction of the Des Plaines River Project
(hereinafter the "Project", as defined in Article I.A. of this Agreement),
WHEREAS, Section 103 of the Water Resources Development Act of 1986, Public
Law 99-662, s amended, speci fies the cost-sharing equirements applicable to the Project,
. WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611, as
amended, and Section 103 of the Water Resources Development Act of 1986,Public Law
99-662, as amended, provide that the Secretary of the Army shall not commence
construction of any water resources project, or separa I o I te element thereof, until each
non -Federal sponsor has entered into a writte'n agreement to furnish 'its required cooperation
for the proi &ct or separable element,
WHEREAS, Section 104 of the Water Resources Development Act of 1986, Public
Law 99-662 authorizes the Assistant Secretary of the Army (Civil Works) to afford a credit
for work accomplished by the Non -Federal Sponsor,
*WHEREAS, the Non -Federal Sponsor does not qualify for a reduction ot the
maximum non -Federal 6ost share pursuant to the guidelines that implement Section 103(m)
of the Water Resources Development Act of J 9 8 6, Publ ic Law 99-662, as amended';
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WHEREAS, Section 902 of Public Law 99-662 establishes the maximum amount of
costs for the fees Plaines River Project and sets forth procedures for adjusting such
maximum amount; and
WHEREAS, the Government and Non -Federal Sponsor have the fall. authority and
capability to perform as hereinafter set forth and intend to cooperate in cost-sharing and
financing ofthe construction of the Project in accordance With the terms of this Agreement.
NOW, THEREFORE, the Govemment and the Non -Federal Sponsor agree as .
folios:
ARTICLE I -DEFINITIONS AND GENERAL PROVISIONS
For purposes ofthis Agreement:
A. The terra "Project" roject" shall mean the six segments, which are: 1 Buffalo Creek
Reservoir expansion, 2 Big Bend Lake expansion, including a pump station and berm,
(3) Levee 37 construction including a pumpin station and gravitydrainage facilities, (4)
Rand Road Levee 50, consisting of an earthen levee, floodwall, or sealed embankment,
plus gravity drainage facilities and pumping pla t, 5 Van Patton 'woods lateral storage
facility, North Fork bill Creep dans mo ific tion; all as generally described in the
Upper Des Plaines Flood Darnage Reduction StLid r, Limited Reevaluation Report dated
March, 2007, approved by the Great Lakes and Ohio Diver Division Commander on June,
F o, 2007. The Project includes the Section 104 work described in Article I.K of this
Agreement.
B. 'The tern. "total project costs" shall mean all costs incurred by the Non -Federal
Sponsor and the Government in accordance with the to xas of this Agreement directly
related to construction of the Project. Subject to the provisions of this Agreement, the terra
F shall include, but is not necessarily limited : continuing planning and enginoeri ag costs
incurred after October 1, 1985; advanced engineering and design costs; preconstruction. .
engineering and design costs; engineering and desip costs dung construction; the costs of
investigations to identify the existence and extent of hazardous substances in a ccor dance
with Article XV.A. of this Agreement; costs of historic preservation 'activid s in accordance
with Article XVUI.A:. of this Agreement; actual construction costs, including the costs o
alteration, lowering, raising, or replacement and attendant removal of existing railroad
bridges and approaches thereto; the- credit amount for the Section 104 work performed by
the Non -Federal Sponsor afforded in accordance with Axtiele H. .5. of this'Agreement;
supervision and administration costs; costs of participation in the Project Coordination Team
in accordance with Article V of this Agreement; costs of contract dispute settlements or
awards; the value of lands, easements, rights-of-way, relocations, and suitable borrow and
dredged or excavated material disposal areas for which the Govemment affords credit in
accordance with Article Ill of this Agreement; and costs of audit in accordance witb Article
X of this Agreement. The term does not include any costs for operation, maintenance,
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repair, replacement, or rehabilitation; any costs due to betterments; or any costs of dispute
resolution under Article VII of this Agreement.
C. The terra "financial obligation for construction's shall mean a financial obligation
of the Government or a financial obligation of the Non -Federal Sponsor for Section 104
work, other than an obligation pertaining to the provision of lands, casements, rights- o-wa
relocations, and borrow and dredged or excavated material disposal areas, that results or
would result in a cost that is or would be included in total project costs,
D. The term "nog, -Federal proportionate hare" shall mean the rano of the Non -
Federal Sponsor's total cash cont ibution required in accordance with Articles 1I.D. 1. and
If.D.. of this Agreement to total financial obligations 'or construction asro.� `ected b the
Government.
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E. The term "Period of construction" shall mean the time from the date the
Go m e t first notifies the Non -Federal Sponsor in vesting, in accordance with Article
VI.. of this Agreement, of the scheduled date for issuance of the solicitation for the first
construction contract to the date that the U.S. Amy Engineer for the Chicago District
(hereinafter the "District Engineer") notifies the Non -Federal Sponsor in writing the
Governments determination that construction of the Project is completer
F. 'h -e term "highway" shall mean any Public highway, r adway, street, or way,
fine lu ` � a
ding any bridge thereof.. y
G. , h terra "relocation" shall� mean Providing a functionally e ui valent facilityto
s s
the owner of n existing utility, cemetery, highway or other Public facility, or railroad
(excluding existing railroad bridges and approaches thereto) when such 4etion is authorized
in accordance Frith -applicable legal Principles ofjust compensation or as otherwise provided
*
in the authorizing ,g legislation for the Project or any report referenced therein. Providing a
functionally equivalent facility may take the form of alteration, lowering, raisin , or
relacernnt and attendant removal of the affected facility or Part thereof`.
H. The term "fiscal year" shall mean one fiscal year of the Govemment. The
Govemment fiscal year begins on October 1 and ends on Se ten'ber 30.
Ia The terra "functional portion of the Project' shall mean a ,portion of the Project
that is suitable for tender to' the Non -Federal Sponsor to operate and maintain in advance of
completion ofthe entire Prjectr For a portion of the Project to be suitable for tender, the
District Engineer must notify the Non -Federal Sponsor in iArritffig of the Go emme tis
determination that the portion of the Project is complete and can function independently and
for a useful purpose, although the balance of the Project is not complete.
I The tern "bettenn nt" shah mean a change in the design and construction of an
element of the Pro ject resulting from the application ofstandards that the Govemment
determines ,exceed those that the Government would otherwise apply for accomplishing the
design aril construction of'that element
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K. The terror "Section 104 r " shall mean construction of Levee 50 (also known
as the Rand Park levee), as described in the Upper Des Plaines River, Illinois — (PWI:
010249) — Flood Damage Reductio. Study, Limited Reevaluation Report dated March
20072 and approved in concept by the ,Assistant Secretary of the Army (Civil Works) on
June l 1, 1999. The Section 104 work includes construction of the authoed improvements
as well as planning, engineering, design, supervision and administration, and other activities
-associated with construction, but does not include the construction of betterments or the
provision of lands, easements, rights-of-way, , relocations, or suitable borrow and dredged or
excavated material disposal areas associated with the Section 104 rorl.
ARTICLE I1 -OBLIGATIONS of THE GOVERNMENT AND THE NON- I R -A
SPONSOR
A. The Goverrme t, subject to receiving funds appropriated by the Congress }of the
United States (hereinafter, the "Co 'ngress" and using hose funds and fu ds provided by the
Non -Federal Sponsor, shall expeditiously construct the Project includi g alteration,
lowering, raising, or replacement and attendant removal of existing railroad bridges and
approaches thereto), applying those procedures usually applied to Federal projects, pursuant
to Federal laws, reglati.s, and policies.
1. The Govemment shall afford the Non- Federal Sparser the opportunity t
review and comment on the solicitations for all contracts, including relevant plans and
specifications, prior to the G vem.me fs issuance of such solicitations. The Govemment
shall'not issue the solicitation for the first construction contract until the Non. -Federal
Sponsor has confirmed in writing its willingness to proceed with the 'project. To the extent
possible, the Govemment -shall afford the Non -Federal. Sponsor the opportunity to review
and comment on all contract modifications, including charge orders, .prior to the issuance to
the contractor f a Notice to proceed. In any instance where providing the Non -Federal
Sponsor with notification of a'contract modification or change o d r is -not possible prior t
issuance of the Notice to Proceed, the Gov6mmcnt shall provide such notification in writing .
t the earliest date possible To thQ extent possible, the Govemment also shall afford the
Nora -Federal Sponsor the opportunity to review and comment on all contract claims prior to
resolution' thereof. The Govemment shall consider in good faith the comments of the Non-
eeralp onor, but the contents of solicitations, award of contracts, execution of contract
modifications, issuance of change orders, resolution of contract claims, and performance of
all work on the Project (whether the work is performed under contract or by Govemment
personnel, shall be exclusively within the control of the Govemment.
2. Throughout the period of construction, the District Engineer shall famish
the Non -Federal Sponsor with a copy of the 6ovemment's Written Notice of Acceptance of
Completed 'work for each contract for the project.
. Notwithstanding paragraph A. I. of this A-iticle, if, upon the award of a any
contract for construction of the Project, cumulative financial obligations for all construction
��
:..:.r... and LERDs acquisition would exceed $76,770,000, the Govemment and the Nona -Federal
Sponsor agree to defer award of that contract and all subsequent contracts for construction
of the Project until such time as the Government and the Ton -Federal Sponsor agree to
proceed with further contract awards for. the project, but in no event shall the award of
contracts be deferred for more than three years. Notwithstanding this general provision for
deferral of contract awards, the Government, after consultation with the Dora -Federal
Sponsor, may award a contract or contracts after the Assistant Secretary of the A=(Civil
Works) makes a wiitten determination that the award of such contract or contracts Faust
proceed in order to comply r with law or to protect life or property from imminent
and
substantial harm.
B. The Non -Federal Sponsor may request the Go emment to accomplish
betterments. Such requests shall be writing and shall describe the betterments requested
to he accomplished. �
If the Govemment i.n its sole discretion elects to accomplish the
requested betterments or any portion thereof, it shall so notify the Non ederal Sponsor in a
writing
that sets forth any applicable towns and conditions, which must be consistent with
this Agreement. In the eventf 66nflict between such a writing and this Agreement, this
Agreement shall control. The Non -Federal Sponsor shall be solely responsible for all costs
clue to the requested betterments and shall pay all such costs in accordance with Article i
VI.C. of this Agreement.
C. When the District Engineer determines that the entire Project is complete or that
a portion of the Project has become a functional porion of the Project. -the District Engineer
shall so notify the Ikon -Federal Sponsor in writing and fursh the Non -Federal Sponsor
with an
Operation,, Maintenance, Repair, Replacement, and Rehabilitation Manual
(hereinafter the "OMRR&R Manual's) and with copies of all of the GovemmenVs Written
Notices of Acceptance of Completed Work for all contracts for the Project or 'the functional
portion of the Project that have not been provided preiously.Jpo such notification, the
Non -Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the entire
Project or the functional portion of the Project in accordance with Article VIII of this
Agreement, '
D. The Non -Federal Sponsor shall contribute minimum of 35 percent, but not to
exceed 50 percent, of total p' * ct costs in accordance with the pr r provisions of thisparagraph.
il L The Non -Federal Sponsor shall provide a cash contribution equal to
percent of total project costs In accordance with Article VI.B. of this Agreement.
. In accordance with Article'III ofthi Agreement, the Ion -Federal
Sponsor shall provide all lands, casements, rights-of-way, and suitable borrow and dredged
or excavated matel"lal disposal areas that the Government determines the Non -Federal
Sponsor must provide for the construction, operation, and maintenance of the Project and
shall perforin or ensure performance of all relocations that the Govemment determines to be
necessary for the construction, operation, and maintenance of the Project.
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3. If the Go erg me t projects that the value of the Non -Federal Sponsor's
contributions under paragraphs D. 1. and D.2. of this Article and Articles v, X, and XV.A.. of
this Agreement will be less than 35 percent of total project costs, the Non -Federal Sponsor
shall provide an additional cash contribution, in accordance with Article VI.B. of this
Agreement, in the amount necessary to make the Ion -Federal Sponso 's total contribution
equal to 35 percent of total project costs
4. If the Govern meat determines that the value of the Non -Federal Sponsor's
contributions provided under paragraphs D.2. and D.3. of this Article and Articles V, X, and
XV.A. of this Agreement has exceeded.45 percent oftotal project costs, the Govern me t,.
subject to the availability of funds, shall reimburse the Non -Federal Sponsor for any such
value in excess of 45 percent of total project costs. After such a determination, the
Govern meat, in its sole discretion, may provide any remaining Project lands, easements,
rights-of-way, and suitable borrow and dredged or excavated mater' l disposal areas and
J
perform any remaining Project relocations on behalf of the Nosh --Federal Sponsor.
The Assistant Secretary of the Arm (Civil works) has detemhirhed that
the Section 104 work is compatible with the Project and has approv d a credit in the
estimated amount of $9,317,,000 for the Section 104 work by the Non --Federal Sponsor. The
affording of such credit shall be subject to an on. -site inspection by the Govern meat to ver*f r
that the work was accomplished in a satisfactory manner' and is suitable for inclusion in. the
Project. The actual amount of credit shall be subject to an - audit in accordance with Article
X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs.
To afford such credit, the Govemment skull apply the credit, amount toward any add'tional
cash contribution required under paragraph D.3. of this Article., If the, credit amount exceeds
the +ahhount of such dditional cash contribution, the . Govern meat, subject to the availability
i of funds, shall, on behalf of the Non -Federal lural Sponsor, provide Project lands, easements,
rights- --way, and s It bte borrow and dredged or excavated material disposal areas, or
perform Project relocations, equal in value to such excess credit amount. As an alternative,
'
and in its sole discretion, the Goverh meat may make a payment to the None -Federal Sponsor
in an amount equal to such excess credit amount, up to the value of cont ibutions under
paragraph:. of this Article and Articles V. X, and XV.. ofthi Agreement. tri event
shall the credit amount afforded exceed the lesser of 45 percent of total project costs or the
value of the Noir-Federal Sponsor's contributions required under paragraphs .2. and D.3. of
this Article and Articles V, X, and XV.A, of this Agrement. Solely for construction
contracts awarded after the effective date of this Agreement crediting and/or
reimbursement is subject to satisfactory compliance with applicable federal labor lags
covering noir--Federal construction, including, but not limited to the Davis -Bacon Act 40
USC 276a et seq.), the Contract Work Hours and safety Standards Act 40 USC 327 et seq.)
and the Copeland Anti -Kickback Act 40 USC 276c). Cre liting and/or reimbursement may
be withheld in whole or part, as a result of the non -Federal Sponsor's failure to comply with
its obligation under these laws.
E. The Non -Federal Sponsor may request the Government to provide lairds,
easements, rights-of-way, and suitable Morrow and dredged or excavated material disposal
+ meas or perform relocations on behalf of the Non -Federal Sponsor. Such requests shall be
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in wring and shall describe the srices requested to be perforrned. If in its sole discretion
the Govemmerrt elects to perforin the requested services or any portion thereof, it shall so
notify the Non -Federal Sponsor in a writing that sets forth any applicable terms and
conditions, which must be consistent with this Agreement. In. the event of conflict between
i such a meting and this Agreement, this Agreement shall control. The Non -Federal Sponsor
shall be solely responsible for all costs of the requested services and shall pay all such costs
In accordance with Article VI.C. of this Agreement. Notwithstanding the provision of lards
easements, rights-of-way, and suitable borrow and dredged or excavated material disposal
areas or p rforn ice of relocations by the Govemme.nt, the Mon -Federal Sponsor shall be
responsible, as between the Gove=ent and the Non--Federalp onsor for the costs of
cleanup and response in accordance with Article XV.C■ of this Agreement.
F. The Dove=ent shall perform a final accounting in accordance with'Article
VI.D. of this Agreement to determine the contributions provided by the Mora -Federal
Sponsor In accordance with paragraphs B., D., and E. of this Article and Articles V1 x, and
XV.A.. of this Agreement and to determine whether the Non-Fedr t Sponsor has met its
obligations under paragraphs B., D., and E. of this Article.
G. The Non -Federal Sponsor shall not use Federal funds to meet the Non -Federal
Sponsor's share of total project costs under this Agreement unless the Federal granting
agency vetifres in'writing that the expenditure of such funds is expressly authoriiedby
statute.
H. The Ion -Federal Sponsor agrees to participate In and comply with
g p p ' applicable
Federal floodplain management and flood insurance programs.
L Not less than once each year the Non* Federal Sponsor shall inform affected
interests of the extent of protection afforded by the Project.
J. The Non -Federal Sponsor shall publicize flood lain information in the area
p p
concerned and shall provide this information to zoning and other regulatory agencies for
their use in preventing unwise future development in the flood plain and in adopting such
p g
regulations as may be necessary to prevent, unwise future development ,and to ensure
compatibility with protection levels provided by the Project.
K. The Non --Federal Sponsor shall comply with Section 402 of the Fater
Resources Development Act of 1956, as amended U.S.C. 701b-12which requires
a
Non -Federal Interest to have prepared within one year after the date of signing this
Agreement, a floodplain management plan. The plan shall be designed to reduce the {
11,apacts of future flood events in the project area, including but not limited to addressing
thosc measures to be undertaken by Non -Federal interests to preserve the level of flood
protection provided by this Project. As required by Section 402, as amended, the Non -
Federal interest shall implement such plan not later than one year after completion of '
i N i •
construction of the Project. The on�Federal Sponsor shall provide ars information copy
of the plan to the Govemment upon Its preparation.
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L. The Non -Federal Sponsor shall also prescribe and enforce regulations to prevent
obstruction of or' encroachment on the project that would reduce the level of protection It
affords or that would hinder operation or maintenance of the project.
ARTICLE III --LANDS, RELOCATIONS, TIONS, D S SAL AREAS, AND
PUBLIC LAW 1.646 COMPLIANCE
A. The Govemment, after consultation with the Non -Federal Sponsor, shall
determine the lands, easements,. and rights-of-way required for the construction, operation,
and maintenance of the Project, including those required for relocations, borrow materials,
arra dredged or excavated material disposal. The Government is a timely manner shall
provide the Non -Federal Sponsor with general written descriptions, including maps a
appropriate, of the lands, easements, and rights-of-way that the Government determines the
Non -Federal Sponsor must provide, in detail sufficient to enable the Non -Federal Sponsor to
fulfill its obligations under this paragraph, and shall provide the Non -Federal Sponsor with a
written notice to proceed with acquisition of such lands, easer a .ts, and rights-of-way. Prior
-to the end of the period of construction, the Non -Federal Sponsor shall acquire all lands,
easements, and rights --of=. ay set forth in such descriptions. Furthermore, prior to issuance
of the solicitation for each construction contract, the Non -Federal Sponsor shall provide the
Govemment with, authorization for entry to all lands, easements, and rights-of-way the
Govemment determines the Ion -Federal Sponsor must provide for that contract. For so
long as the Project remains author ed, the Non -Federal Sponsor hall ensure that lands,
easements, and rights-of-way ay that the Govemment determines to be required for the
operation and maintenance of the Project and that were provided by the Non -Federal
Sponsor are retained in public ownership for uses compatible with the authorized purposes
of the' project. .
B. The Government, after consultation with the lion' -Federal Sponsor, shall
determine the improvements required on lands, easements, and rights-of-way o enable the
+ proper disposal of dredged or excavated material associated with the construction, operation,
and maintenance of the Project. Such improvements may include, but are not necessarily
limited to, retaining dikes, wasteweirs, bulkheads, embankments,. monitoring features,,
stilling basins, and de -watering pumps and pipes. The Govemment in a timely manner shall
provide the Noce -Federal Sponsor with general written descriptions of such imppvements in
detail sufficient to enable the lora-Federal Sponsor to fulfill its obligations under this
paragraph, and shall provide the Non -Federal Sponsor with a written notice to proceed with
construction of such improvements. Prior to the end of the period of construction, the Non
Federal Sponsor shall provide all improvements set forth in such descriptions. Furthennore,
prior to issuance of the solicitation for -each Government constriction contract, the Non- .
Federal Sponsor shall prepare plans and specifications for all improvements the Govemment
determines to he required for the proper disposal of dredged or excavated material under that
* contract submit suchplans and specifications to the Govemment for approval, and provide
such'improvements in accordance with the approved plans and specifications.
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C. The Govemment, after consultati
disposal areas to the extent that such items are provided using Federal funds unless the.
+ Federal granting agency verifies in writing that such credit is expressly authorized by
statue.
B. For the sole purpose of affording credit in accordance with this Agreement, the
value of lands, easements, and n*ghts-of-way, including hose necessary for relocations,
borrow materials, and dredged or excavated material disposal, shall be the fair marl et value
of the real roperty' intere ts, plus certain incidental costs of ac lring those interests, as
determined in accordance with the provisions of this paragraph.
1. Date of Valuation. The fair market value of lands, easements, or rights-
of-way owned by the Ikon -Federal Sponsor on the effective date of this Agreement shall be
the fair market value of such real propel interests as of. the date the Non -Federal Sponsor
provides the Govemment with authorization for entry thereto. However, for lands,
easements, or rights-of-way owned by the Non -Federal Sponsor on the' effecti e date of this
Agreement that are required for the construction of the Section 104 work, fair market value i
shall be the value of such real'property interests as of the date the Noxi -Federal Sponsor
awards the first 'co struction contract for the Section 104 work, or, if the Non -Federal
eral
Sponsor performs the construction with its own labor, the date that the Non -Federal Sponsor
begins construction of the Section 104 work. The fair market value of lards, easements, or
Tights -of - q acquired by the Noy. -Federal Sponsor after the effective date of this
Agreement shall be the fair market value of such areal propel interests at the time the
interests are acquired. }
2.� General valuation Procedure. Except as provided in paragraph B.3. 6f
this Article, the fair market value of lands, easements, or rights-of-way shall be determined
it accordance with paragraph ,2.a. of this article, unless thereafter different amount is
determined to represent fair market value in accordance with paragraph ] , .b. of this
Article,
. a. The Non -Federal Sponsor shall obtain., for each real propel
interest, an appraisal that is prepared by a qualified appraiser who .is acceptable to the Non -
Federal Sponsor and the Goyemmnt. The appraisal must be prepared in accordance with
the applicable rules of just cot pen at.ion, as specified by the Government. The fair market
value hall be the amount set forth in the Ikon -Federal Sponsor's appraisal, if such appraisal
is ap roved by the Government. In the event the Gov mment does not approve the Non -
Federal Sponsor's appraisal, the Igor -Federal Sponsor may obtain a second appraisal, and
the fair market value shall be the amount set forth In the Non -Federal Sponsor's second
appraisal, if such appraisal is approved by the Govemment. In the event the Go eminent
does not approve the Noxi -Federal Sponsor's second appraisal, or the Non -Federal Sponsor
chooses not to obtain a second appraisal, the Govcment shall obtain an appraisal, and the
fair market value shall 'b e the amount set forth lir the Governments appraisal, if such.
appraisal is approved by the Nor -Federal Sponsor. In the evert the Non -Federal Sponsor
does' riot approve the torment's appraisal, the Government, after consultation with the
Non -Federal Sponsor, shall consider the G vemmenft and the Non. -Federal Spon o?s
10
14
appraisals'and determine ars amount based thereon, which shall be deemed to be the fair
market value.
b. where the amount paid or proposed to he paid by the Nora -Federal
Sponsor for the real property interest exceeds the amount determined pursuant to paragraph
.2.. of this Article, the Govemment, at the request of the Non-federal Sponsor, shall
consider all factors relevant to determining fair market value and, in its sole discretion, after
consultation with the Non -Federal Sponsor, may approve in writing an amount greater than
the amount determined pursuant to paragraph .2.a. of this Article, but not to exceed the
amount actually paid or proposed to be paid. If the Government approves such ars amount,
the Fair market value shall be the lesser of the approved amount or the amountp aid bythe
Non -Fede Sponsor, but 'no less than the amount determined pursuant to paragraph .2.a.
of this Article.
. Eminent Domain Valuation procedure. For lards, easements, or rights-
of-way acquired by eminent domain proceedings instituted after the effective date of this
Agreement, the Nora -Federal Sponsor shall, prior to ingtituting such proceedings, submit to
the Govemment notification in writing of its intent to institute such proceedings and a
appraisal of the specific real property interests to be acquired in such proceedings. The
Government shall have 60 days after receipt of such a notice and appraisal within which t
review the appraisal, if not previously approved by the Govemment in writing.
. If the Govemment previously has approved the appraisal i y
i writing, or if the Goverment provides written approval of or takes no action. -ori the
appraisal within such 60 -day period, the Non -Federal Sponsor shall use the amount set forth
in such appraisal as the estimate of just compensation for the purpose of instituting the
4
eminent domain proceeding.
h. If the GovOmment provides written disapproval of the appraisal,
includixig the reasons for disapproval, within sucho-d period, the Government and
p � the
Non -Federal Sponsor shall consult in good faith to promptly resolve the issues or areas of
disagreement that are identified in the Govemmenfs written disapproval. If, after such good
pp
faith consultation, the Government and the Nora -Federal Sponsor agree as to ars appr9priate
amount, thea the Nora -Federal Sponsor shall use that amount as the estimate of just
compensation for the purpose of instituting the emi
4. Incidental Costs. For lards, easements, or rights-of-way acquired by the
Non -Federal Sponsor within a fire -year period preceding the effective date of this
Agreement, or at any time- after the effective date of this Agreement, the value of the interest
shall include the documented incidental costs of acquiring the interest, as determined by the
Go eminent, subject to an.audit in accordance with Article X.C. of this Agreement to
determine reasonableness, allocability, and allowability of costs. Such incidental costs shall
include, but not necessarily be limited to, closing and title costs, appraisal costs, survey
costs, atto yts fees, plat maps, and mapping costs, as well as the actual amounts expended
.for payment of any Public Law 1-646 relocation assistance benefits provided in accordance
with Article III.E. of this Agreement.
C. After consultation with the Non -Federal Sponsor, the Gove=ent shall
determine the value of relocations in accordance wiih the provisions of this paragraph.
1. For a relocation other than a highway, the value shall be only that portion
of relocation cosh that the Dove meat determines is necessary to provide a functionally
e ui al nt facility, reduced by depreciation, as applicable, and by the salvage value of any
removed items. .
2. For a relocation of a highway, the value shall be only that portion of
relocation costs that would be necessary to accomplish the relocation in accordance with the
design standard that the State of Illinois would apply under similar conditions of geography
and traffic load, reduced by the salvage value of any removed items.
. Relocation costs shall include, but not necessarily be limited to, actual
costs of performing the relocation; planning, engineering and design costs; supervision and
administration costs; and documented incidental costs associated with performance. of the
relocation, but shall not include any costs due to betterments, as.determined by the
Govemmeiit, nor any additional cost of using new material when suitable used material is
available. Relocation costs shall be subject to an audit in accordance with Article X.C. of
this Agreement to determine reasonableness, allocability, and allowability of cosh.
4. Solely for construction contracts awarded after the effective date of this
Agreement, crediting for relocations performed within the Project boundaries is subject to
satisfactory compliance with applicable federal labor laws covering non -Federal
construction, including, but not limited to the Davis --bacon Act (40 SC 276a et seq), the
Contract Work Hours and Safety Standards Act 40 USC 327 et se, and the Copeland
Anti -Kickback Act 40 USC 276c). Crediting may be withheld, in whole or in part, as- a.
result of the Non -Federal Sponsor's failure to comply Frith its obligations under hese
laws.
D. The value of the improvements made to lands, easements, and rights -of -gray for i
therop er disposal of dredged or excavated material shall be the costs of the improvements,
as determined by the Govemment, subject to an audit in accordance with Article X.C. of this
Agreement to determine reasonableness, allocability, and alto rabil it y of costs. Such costs
t
16
t
f shall rrcl de,'but not necessarily be llr ited to, actual costs of prov'ding the improvements;
planning, engineering and design costs; supervision and administration costs; and
documented incidental costs associated with providing the improvements, but shall not
include any costs due to betterments, .ts, determined by the Govemment.
ARTICLE V -PROJECT COORDIXATION TEAM
A. To provide for consistent and effective communication, the Non -Federal Sponsor
and the Government, not later than 30 days after the effective date of this Agreement, shall
appoint named senior representatives to a Project Coordination Team.. Thereafter, the
Project Coordination Team shall meet regularly until the end of the period of construction.
The Go er. me it's Project Manager and a counterpart named by the Non -Federal Sponsor
shall co-chair the Protect Coordination Team.
B. The Go emment's Project Manager and the Non -Federal Sponsor's counterpart
shall keep the Project Coordination Team informed of the' progr ss of construction and of
sighifi pending issues and .actions, and shall seely the views of the Project Coordination
'T'eam on matters that the Project Coordination Team generally oversees, .
C. Until the end of the period ofconstruction, the Project Coordination Team shall"
generally oversee the Project, including issues gelated to desi n;lans and ecifrca ions -
p p
scheduling; real property and relocation requirements; real property acquisition; contract
..... awards and modifications; contract costs# the application of and compliance with the
Travis -Bacon Act, Contract Work Hours and Safety Standards Act and the Copeland
Anti -Kickback c Act for relocations and construction portion of the non -Federal Section
104 work; the Go emment's oast projections; final *n pection of the entire Project o F .
functional portions of -the Project; preparation of the proposed MRM& 'Ma . al;
anticipated requirements and needed capabilities for performance of operation, maintenance,
repair, replacement, and rehabilitation of the Project; and other related matters. This
oversight shall be consistent witha project management *Plan de eloped by the Govemment
after consultation with the Non -Federal Sponsor.
D. The Project Coordination Team may make recommendations that it deems
warranted to the District trict ngineer on matters that the Project Coordination Teamsg enerall
oversees} including suggestions to avoid potential sources of dispute. The Govemment in
good faith shall consider the recommendations of the Project Coordination Team. The
Go em ent.. having the legal authority and responsibility for construction of the Project
has the discretion to accept, rejec(or modify the Project Coordination Team}s
recommendations.
E. The costs ofParticipation in the Project Coordination Team, shall be included
in total.project costs and cost shared in accord r ee with the pro'v'isions of thisreement.
Ag
1
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ARTICLE VI -METHOD of PAYMENT
A. The Go err ment shall maintain current records of contributions provided by the
parties and current projections of total project costs and costs due to betterments. By August
of each year and at least quarterly thereafter, the Govemment shall provide the Non -Federal
Sponsor with a report setting forth all contributions provided to date and the current
projections of total pro* ect costs, of total costs due to betterments, of the maximum amount
r
of total project costs determined in accordance with Article XIX of this Agreement, of the
components of total project costs, of each party's share of total project costs, of the Non -
Federal Sponsor's total casks contributi ns required in accordance with Articles If.I ., 11.D.,
and II.E. of this Agreement, ofthe non -Federal proportionate share, and off'the funds the
Go eminent projects to be required from the Non -Federal Sponsor for the upcoming fiscal
year. on the effective date of this Agree ent, total project costs are projected to b
$72,435,000 and the Non -Federal Sponsor's estimated contribution required under Article
H.D. of this -Agreement is projected to be $25,400,000 consisting of Section 104 credits of
$145711 1,000, LERDs credits of $7,067,000 and a cash contribution of $ ,622,00. Such
amounts are estimates subject to adjustment by the Govemment and are not -to be construed
s the total financial responsibilities of the Government and the Non -Federal Sponsor.
B. The Non -Federal Sponsor shall provide the cash contribution required under
Articles H. D.1. and II.D. 3. of this Agreement in accordance with the provisions of this
paragraph.
1. Not less than 30 calendar days prior to the scheduled date for issuance of
the solicitation for the first construction contract; the Govemment shall notify the Non -
Federal Sponsor in writing of such scheduled date and the funds the Cove=6nt, after
consideration of any credit afforded pursuant to Artier r.,. of this Agreement,
determines to be required from the Non -Federal Sponsor to meet the iron -Federal
proportionate share of projected financial obligations for construction through- the first fiscal
year of construction, including e non -Federal proportionate share of financial obligations
for construction incurred prior to the commencement of the period of construction. -Not later
than such scheduled date, the Non -Federal Sponsor shall provide the Govemment with the
full amount of the required.fuuds by delivering a check payable to "FAO,. USAED,
Chicago" 'to the District Engineer or verifying to. the satisfaction oft .e Govenu ent that the
Non -Federal Sponsor has deposited the required funds in an escrow or other account
acceptable to the Go emme nt, with interest accruing to the Non -Federal Sponsor or -
presenting the Government with an irrevocable letter of credit acceptable to the Govemmefit
for the required funds or providing an Electronic Funds Transfer in accordance with
procedures established by the Go emm nt.
2. For the se.cond and subsequent fiscal years of construction, the
Govemment shall notify the Non -Federal Sponsor in writing, no later than 60 calendar days
-prior to the beginning of that fiscal year, of the funds the Go 'eminent, after consideration of
any credit afforded pursuant to Article ff... of this Agreement, determines t be required
from the Non -Federal Sponsor to meet the non -Federal proportionate share of projeeted
I
18
financial obligations for construction for that fiscal year. No later than 30 calendar da
ys
prior
the beginning of the fiscal year, the Nor. -Federal Sponsor shall male the full. amount
of the required funds for that fiscal year available to the Govemment through any of the
payment mechanisms specified in Article VI.B. 1. of this Agreement.
. The Govemment shall draw from the funds provided by the Noir-Federal
Sponsor such sums as the Govemment after consideration of any credit afforded pursuant to
Article 1 . . # of this Agreement, deems necessary to cover: the noir-Federal
proportionate share of financial bIigatious for construction incurred prior t the
commencement of the period of constriction; and (b)the non -Federal proportionate share of
financial obligations for construction as they are incurred during the period of construction.
. If at any bine during the period of construction the Govemment
4etermines that additional finds will be needed from the Nona ederal Sponsor to cover the
non -Federal proportionate share ofprojected financial obligations for construction for the
current fiscal year, the Goverament shall notify the Non -Federal Sponsor in writing of the
additional funds required, and provide an explanation of why additional funds are required,
and the Non -Federal Sponsor, no later than 60 calendar days from receipt of such notice,
shall .make the additional required funds available through any of the payment mechanisms
. py
specified in Article V . .1. of this Agreement.
C. In advance of the Government incurring any financial obligation associated with
additional work under Article I .B. or ILE. of this Agreement, the Non -Federal Sponsor
shall provide the Govemment with the full amount of the funds required to pay for such
additional work through any of the payment mechanisms specified in Article VI. B.1. of this
Agreement. The Govemment shall draw from the funds provided by the Non -Federal
Sponsor such suras as the Govemment dee'ms necessary to cover the Government's financial
obligations for such additional wbrk as they are incurred, In the event the Govemment
determines that the Ion -Federal Sponsor must provide additional funds to meet its cash
contribution, the Govemment shall notify the Non -Federal Sponsor in writing of the
additional funds required and provide an explanation of why additional Winds are required.
Within 30 calendar days thereafter, the NonTederal Sponsor shallp rovi c the'Government
with the full amount of the additional required funds through any of the p ym ent
mechanisms specified in Article VIR 1. of this Agreement. i
. Upon completion of the Pro'ect or termination o this Agreement, g naerat, and upon
resolution of all relevant claims and appeals, the Government shall conduct a final
accounting and fumi h the Noir-Federalorsor with the results of
p the final accoutrg.
The final accounting shall determine total project costs, each party's contribution provided
thereto, and each pai-ty's required share th;",r of. The. final accounting determine
also shalt deteine
costs due W # etterments and the Non- o ral Sponsor's cash contribution provided pursuant
to Article H.B. of this Agreement.
I . In the event the final. accounting shows that the total contribution provIded
by the Non -Federal Sponsor i
less than its required share of total
� ro ect costs plus costs
p
u due to air betterments provided in accordance nee nth Article H.B. of this Agreement, the
1
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Nora -Federal Sponsor shall, no later than 90 calendar days after r6ceipt 'ten notice,
make a cash payment to the Government of whatever sum is required to meet the Ion -
Federal Sp nsor's required share of total project costs plus costs due to any betterments
provided in accordance with Article H.B. of this Agreement by delivering a check payable
t `FAO, USAED, Chicago" to the District Engineer or providing an Electronic Funds
Transfer in accordance with procedures established by the Government.
. In the event the final accounting shows that the total contribution
provided by the Non -Federal Sponsor exceeds its required share of total project costs plus
costs due toany betterments provided in accordance with Artiele II,. of this Agreement,
the rov mment shall, subject. to the availability of fands, refund the excess to the Non -
Federal Sponsor no later than 90 calendar days after the final accounting is complete;
however, the Non -Federal Sponsor shall not be entitled to any refand of the 5 percent cash
contribution required pursuant to Article I .I .1. of this Agreement. - In the event existing
funds are not available to refand the excess to the Non -Federal Sponsor, the Gov m ent
shall seek such appropriations as are necessary to make the refund.
ARTICLE VII -DISPUTE RESOLUTION
As a condition 'precedent to a party bringing any suit for breach of this
Agreement, that party must first notify the other party in writing of the nature of the
purported breach and seek in good faith to resolve the dispute through negotiation. If the
parties cannot resolve the dispute through negotiation, they may agree to a mutually
acceptable method of non-binding alternative dispute resolution with a qualified third
party acceptable to both parties. The parties shall each pay 50 percent of any costs for the
services provided. by such a third party as such costs are incurred. The existence of a
dispute shall not excuse'the parties from performance pursuant to this Agreement.
.
ARTICLE VTT - OPERATION, MAINTENANCE, REPAIR, REPLACEMENT,
ANIS .REHA ILITATI N oMRR&R
A. Upon notification in accordance with Article H.C. of this Agreement and for so
long as the Project remains authorized, the Non -Federal Sponsor sell operate, maintain,
repair, replace, and rehabilitate the entire Project or the uncti nl portion of the Project, at
no cost to the Govemment, in a manner compatible with the Project's authorized purposes
and in accordance with applicable Federal and Mate laws as provided in Article XI of this
Agreement and specific directions prescribed by the Government in the OMRR&R Manual
and any subsequent amendrnerits thereto.
B. The Ion -Federal Sponsor hereby gives the Dove=ent a right to enter, at
reasonable times and in a reasonable manner, upon property that the lion -Federal Sponsor
owns or. controls for access to the Project for the purpose of inspection and, if necessary, for
the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the
Project. If an inspection shows that the Non -Federal Sponsor for any reason is failing to
1
20
_.,_... perform its obligations under this Agreement, the Government shall send a written notice
. describing the non-perfonnance to the Non. -Federal Sponsor. If, after 30 calendar days from
receipt of notice, the Nora -Federal Sponsor contInLICs to fail to perform, then the
Government shall have the right to enter, at reasonable times and in a Treasonable manner,
upon property that the Ikon -Federal Sponsor owns or controls for access to the Project for
the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the
Project. No completion, operation, maintenance, repair, replacement, or rehabilitation by,
the Govem ent shall operate to relieve the Non -Federal Sponsor of responsibility to meet
the Non -Federal Sponsor's obligations as set forth in this Agreement, or to pri cili e the
Government from pursuing any other remedy at lair or equity to ensure faithful performance
purSUant to this Agreement.
.RTC X -INDEMNIFICATION
Subj ct to the provisions ofArticle XX of this Agreement, the Ikon -Federal Sponsor
shall hold and save the Govemment free from all damages arising from. the con tniction,
operation, maintenance, repay, replacement, and rehabilitation of the Project and any
Project -related betterments, except for damages due to the fault or negligence of the
Government or Its contractors.
.RTIC X -MAINTENANCE OF RECORDS AND AUDIT
A. Not later than 60 calendar days after the effective date of this Agreement, the
Government and the lore -Federal Sponsor shall develop procedures for keeping boobs,
records, documents, and ager evidence pertaining to costs and expenses incurred pursuant
to this Agreement. These procedures shall incorporate, and apply as appropriate, the
standards for financial management s rstems set forth in the Uniform AdmM* 1strativo
Requirements for Grants and Cooperative Agreements to Mate and Local Govemments at
3 2 C.Q.R. Section 33,20. The Govemment and the Non -Federal Sponsor shall maffitain
such books, records, documents, arra other evidence in accordance with hese procedures
and for a minim -Lim of three years after the period of construction arra resolution of all
relevant claims arising therefrom. To the extent permitted under applicable Federal lags
and regulations, the G vemment and the Dion -Federal Sponsor shall each allow the other to
inspect such boobs, documents, records, and other evidence.
B. Pursuant to 32 CY.R. Section 33.263 the Non -Federal Sponsor is responsible for
complying with the Single Audit Act of 1984, 31 U.S.C. Sections X501.7507, as
implemented b ffic of Management and Budget (COMB) Circular No. A- 13 3 an
epartmeno t of Defense Directive 7600. 10. Upon request of the Nora -F denal Sponsor and to
the extent permitted under applicable Federal laws and regulations, the Government shall
provide to the Nora -Federal Sponsor and independent auditors any information necessary to
enable an audit of the Non -Federal Sponsor's activities under this Agreement. The costs of
any nog. --Federal audits performed in accordance with this paragraph shall be allocated in
accordance with the provisions of OMB Circulars A-87 and .-I33, and such costs as are
17
21
allocated to the Project shall be included in total project costs and cost shared in accordance
with the provisions of this Agreement.
C. In accordance with 31 U.S.C. Section 7503, the Govear ment may conduct audits
in addition to any audit that the Non -Federal Sponsor is required to conduct under the SM gle
Audit Act. Any such G vem ent audits shall be conducted in accordance with
Go eminent Auditing Standards and the cost principles in OMB Circular No. A-87 and
other applicable cost pn*nciples and regulations. The costs of Govenune .t audits perlforined
m accordance with this paragraph shall be included in total project costs and cost shared i
accordance with the provisions of this Agreement.
ARTICLE X1- ER -AL AND STATE LAWS
In the exercise of their respective rights and obligations under this
Agreement, the Non -Federal Sponsor and the Govem ent agree to comply with all
applicable Federal and State laws and tegulations, including, but not limited to, Section
601 ofthe Civil Rights Act of 1964, Public Law -'352 2 J.S.C. 2d, and
Department o lees Directive 5500.11 issued pursuant thereto, as well as An -n
Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs
and Activities Assisted. or Conducted by the Department of the Anny." The Nora -Federal
Sponsor is also required to comply with all applicable Federal labor standards
requirement - including, but not limited to the Davis -B aeon Act USC 27 6 a et seta the
Contract Work Hours and Safety Standards Act 40 USC 327 et se and the Copeland
Anti -Kickback Act 40 USC 27c.
ARTICLE XII -RELATIONSHIP OF PARTIES
A. In the exercise of their respective rights and obligations under this Agreement,
the Govermnent and the Nan -Federal Sponsor each act in an independent capacity, and
neither is to be considered the officer, agent, or employee of the other.
B. In the exercise of its rights and obligations under this Agreement, neither party'
shall provide, without the consent of the other party, any contractor with a release that
waives or purports to waiveany rights such other party may have to seek relied` or redress
against such contractor either pursuant to any cause of action that such other party may have
or for violation of any lave.
ARTICLE XIII -OFFICIALS NOT TO BENEFIT
No me.mher of or delegate to the Congress, nor any resident commissioner, shall be
admitted to any share or part of this Agreement, or to any benefit that may arise there r6in.
22
l
•
ARTICLE XIV -T RMMA.TION OR SUSPENSION
A. If at any time the None Federal Sponsor fails to fulfi11 its obligations under Article
I. ., H.D., I .E., V, or XVII . . of this Agreement, the Assistant Secretary of the Amy
(Civil works) shall terminate this Agreement or suspend future performance tinder this
Agreement iless he determines that continuation of work on the Project is in the interest o
the United States or is neves ary in order to satisfy agrecrnents with any other non -Federal
eral
interests in connection with the Project.
B. If the Government fails to receive annual appropriations in amounts sufficient to
meet project expenditures for the then -current or upcoming fiscal year, the Govemment
shall so notify the Non -Federal Sponsor in writing, and 60 calendar days thereafter either
party may elect without penalty to terminate this ,Agreement or to suspend future
performance under this Agreement. In the event that either paw elects to suspend future
performance under this Agreement pursuant to this paragraph, such suspension shall remain
in effect until such time as the Govemment receivesu ficient appropriations or until.either
the Government or the Non -Federal Sponsor elects to terminate this Agreement.
C. In the event that either party elects to terminate this Agreement pursuant to this
Article or; Article XV of this Agreement., both parties shall conclude their act"vibes relating
to the Project and proceed to a final accounting in accordance with Article VI.r . of this
Agreement.
D. Any termination of this Agreement or suspension of f iture Performance under
this A.gr e .ent in accordance with this Article or Article XV of this Agreement shall not
relieve the parties of liability for any- obligation previously incurred. Any delinquent
payment shall be- charged interest at a rate., to be. determined by the Secretary of the
Treasury, equal to 150 per centum of the average bond equivalent rate of the 13-week.'
Treasury bills auctioned immediately prior to the date on which such payr rpt became
delinquent, or auctioned immediately prior io the beginning ofeach additional -month
period if the period of delinquency exceeds 3 rnonffi .
ARTICLE XV - HAZARDOUS SUBSTANCES
A. After execution of this'Agreement and upon direction by the District Engineer,.
the lion -Federal Sponsor shall perfon-n, or cause to be performed, any investigations -for
hazardous substances that the Govemment or the Non -Federal Sponsor determines to b
necessary to identify the existence, and extent of any hazardous substances regulated under
the Compreh insive Environmental Response, Colnerg ation, and Liability Act hereinafter
CE RUA"), �1-2. U.S.C. S cct ons 601-9675, that ria , exist in, on fr under lands,
easements, and rights -of -gray that the Govemment determines, pursuant to Article III of -this
Agreement, to be required for the construction, operation, and maintenance of the Project.
However, for lards that the Govemment determines to be subject to the navigation'
scnrit de, only the Government shall perform such investigations unless the District
Engineer provides the Mon -Federal Sponsor with prior specific written direction, in which
23
case the Non -Federal Sponsor shall perf r as such investigations in accordance with such
written direction. All actual costs incurred by the Ion- edea l Sponsor for such
investigations for hazardous substances shall be included in total project costs and cost
shared in accordance with the provisions of this Agreement, subject to an audit in
accordance with Article X.C. of this Agreement to determine reasonableness, allocabilit ,
and allowability of costs.
B. In the event it is discovered tlu-ough any investigation for hazardous substances
r other means that hazardous substances -regulated under CERCLA exist in, on, or under
any lands,, easements, or rights-of-way that the Govemment tenni e , pursuant to Miele
III of this Agreement, to be required for the construction, operation, and maintenance of the
Project, tSe Non -Federal Sponsor and the Govemment ment shall provide prompt written notice
to each other, and the Ikon -Federal Sponsor shall not proceed with the acquisition of the real
pro erty interests until both parties agree that theNon-Federal Sponsor should proceed.
C. Govemment and the Non -Federal Sponsor shall determine whether t
i
ARTICLE XVI -NOTICES
. A. Any notice, request, demand, or other communication required or permitted to be
given under this Agreement shall be deemed to have been duly given if in meting arta either
delivered personally or by telegram or mailed byfirst-class, registered, or certified mail, as
Follows.
If to the Non -Federal Sposor:
Director
State of Illinois bepartment of Natural Resources
One Natural Resources Way
Springfield, 162702
If to -the Gover ment:
District E.ngineer
United States Army Corps of Engineers
I I North Canal Street, Suite boo
i Chicago, IL 60606-7206
B. A party may change the address to which such communications are to be
directed by giving written Notice to the other party in the manner provided in this Article.
C. Any notice, request, demand, or other communication ru dep ursuant to this
Article shall be deemed to have been received by the addressee at the earlier of such time a
it is actually received or seven calendar days after it is mailed.
t
ARTICLE XVII, -CONFIDENTIALITY
To the extent permitted by the laws governing each pay, the parties agree t
maintain the confidentiality of exchanged information when requested to do so by the
providing party.
. F ARTICLE XVIII - HISTORIC RESERV A ION
A. The costs of identification, suer y and eval'-.1ation of historic properties shall be
i c1uded in total proj&A costs and cost shared M aecor f_1� ce with the provisions of this
Agreement.
B. As specified in Section a of Pubtic Lave 93-291 16 U.S.C. Section469c(a)),
the costs of mitigation and data recovery activities associated with historic reservation shall
e borne entirely by the Government and shall not be included in total project costs, up to
21
25
the statutory limit of one percent of the total amount authorized to be appropriated for the
Prof ect.
C. The. Govemmrpt shall not incur costs for mitigation and data recovery that
exceed the statutory one percent limit specified in paragraph B.'of this Article unless and
until the Assistant Secretary of the Arm(Civil Works) has waived that limit in accordance
with Section 208(3) of Public Law 96-515 (1 U.S.C. Section 469c-2(3)). Any costs of
mitigation and data recovery that exceed the one percent limit shall not be included in total
project costs but shall be cost shared between- the Non -Federal Sponsor and the Govemment
consistent with the minim -Lim non -Federal cost sharing requirements for the underlying flood
control purpose, as follows: 35 percent borne by the Non -Federal Sponsor, and 65 percent
borne by the `rovemment. t
ARTICLE XIX -SECTION 902 PROJECT COST LIMITS
The Non -Federal Sor'so�r has reviewed the provisions set forth in Section 902 of
Public Law 99-662, as amended, and understands that Section 902 establishes the maximum
amount of total prof ect costs for the Des Plaines River Project, I twfthstanding any other
provision of this Agreement, the Government shall not rake a new Project financial
obligation, make a Project expenditure, or afford credit toward total, project costs for the
value of any contribution provided by the Non -Federal Sponsor, if such obligation, .
expenditure, or credit would result in total project costs exceeding this r.a.a imum.amount,
unless otherwise authorized by law. On the effective date of this Agreement, this maximum
amount is estimated to be $76,770,000, as calculated in accordance with ER 1105-2-100
using October 1, 2006 price levels and allowances for projected future inflation. The
oven meat .shall adAu t this maximum amount ire accordance with Section 902.
ARTICLE XX - -OBLIGATIONS OF FUTURE APPROPRIATIONS
A. Nothing herein shall constitute, nor be deemed to constitute, ars obligation of
future appropriations by the Legislature of the State of Illinois,
B. The Non -Federal Sponsor intends to satisfy its obligations under this
Agreement. The Non -Federal Sponsor shall include in its budget request or otherwise
propose, for each fiscal period, appropriations sufficient to cover the Non -Federal
Sponsor's obligations under. this Agreement for each year, and will use all reasonable and
lawful means to secure the appropriations for that year suffrcieit to make the payffients
necessary to fulf�r l Jts obligations hereunder. The Non -Federal Sponsor reasonably
believes that funds in amounts sufficient to discharge these obligations can and will
lawfully be appropriated and made available for this purpose. In the event the budget or
other means of appropriations sloes not provide funds in sufficient amounts to discharge
these obligations, the Non -Federal Sponsor shall use its best efforts to satisfy any
requirements for payments under this Agreement from any other source of funds legally
available for this purpose. Further, if the Non -Federal Sponsor is unable to satisfy its
22
26
obligations hereunder, the Government may exercise any legal Frights it has to protect the
Goer ne is interests related to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this -Agreement,
which skull become effective upon the date it is signed by the District Comer.
The Department of the ,A.rny State of Illinois
Department of Natural Resources
BY:
let Sam Flood
Di i hg neer Acting ire for
Date; 1. 16 Date.-
Recommended:
ate. ecomme ded:
Gary R. , P.E., irctor
Office of Water Resources
Date:_912401200-7
Approved:
f Ellen King -itra
Chief Fiscal Pfficer
` f '
Date:. to I0
Approved:
.4
- Lgj
William Richarrson
General 4::. Linse
Bate o
2
27
k
- r
CERTIFICATE OF AUTHORITY
WilliaM' Richardson, do hereby certify that I arra the principal legal officer of'
-the State of Illinois/Department of Natural Resources, that the State o
Illinois/Department of Natural Resources is.a lega l r constituted public body with
full authority and legal capability to perform the terms of the Agreement between
the Department of thekArmy and the State of f li of Department of Natural
ral .
Resources in connection with the Upper Des Plaines Kiger-Flood Damage Reduction
Pro ect; and to pay damages in accordance with the terms of this Agreement, i
necessary, in the event of the failure to er `orm, a required bar �e tion � � o 11
Law 91-611 2 U.S.C. Sectio. 1962d-5b), gad that the persons who have executed
-this Agreement on behalf of the State of Illinois/Department of Natural Resource's
have acted within their statutory authority.
EN4 WITNS WHEREOF, I ham made and executed this certification this
day of Or, ' 2
r
BYV
Wilha' rn Richardson
Chief Legal Counsel
DATE: /3co —jz-
2
28
Exhibit B
INTERGOVERNMENTAL AGREEMENT
between the
STATE of ILLINOIS DEPARTMENT of NATURAL RESOURCES
and the
STATE of ILLINOIS/DEPARTMENT of TRANSPORTATION
and the
CITY of PROSPECT HEIGHTS
and the
VILLAGE of MOUNT PROSPECT
for the
UPPER DES PLAINES RIVER FLOOD DAMAGE REDUCTION PROJECT ELEMENT,
LEVEE37
Contract N. oW„243
This AGREEMENT ENT I made between the City of Prospect Heights, hereinafter referred to
as the "CITY”, the Village of Mount Prospect, hereinafter referred to as the `VILLAGE"r the
State of Illinois/Department of Natural Resources, hereinafter referred to as "NATURAL
RESOURCES", and the state of Illinois/Department of Transportation, hereinafter referred
to as "TRANSPORTATION" 4
Witnesseth*
WHEREAS, the CITY, VILLAGE , NATURAL RESOURCES and TRANSPORTATION are
all legal entities organized and existing under the laws of the state of Illinois having among
their powers the authority to perform such undertakings as desorl ed herein under the
"Intergovernmental Cooperation Act,, ILLS 220 2002 State Bar Edition); and
WHEREAS, NATURAL RESOURCES has approved participation in flood control projects
to the extent allowed by its statutory authority under the "Flood Control Act of 945,#" 615
I LCS (20 02 state Bar Edition); and
WHEREAS, the U.S. Array Corps of Engineers; hereinafter referred to as the "CO PS";
has completed the Upper Des Plaines River Flood Damage Reduction Project study which
recommends construction of North Fork M14II Creek Reservoir, Van Patton Woods Lateral
Storage Area, Buffalo Creep Reservoir Expansion, Bich led Lake Expansion, Levee 3
and Levee 50, these six components hereinafter referred to as "PROJECT" as described
in the report "Executive s rrmary, Upper Des Plaines river Flood Damage Reduction
Study, Interim Feasibility Report and Environmental Impact Statement, June 1999' filed
with the General Assembly; and
WHEREAS, NATURAL RESOURCES and CORPS have entered into a Project
Cooperation Agreement for construction of the PROJECT, hereinafter referred to as "PCA''
and attached to this AGREEMENT as ATTACHMENT 1- and
29
WHEREAS, TRANSPORTATION would be required to provide 27,205 cy of compensatory
floodway storage for their proposed work at Milwaukee ee Road if that work was not part of a
regional flood control project; and
WHEREAS, the CITY, VILLAGE, TRANSPORTATION and NATURAL RESOURCES
desire to complete the Levee 37 Project Element, hereinafter referred to a "LEVEE 3
PROJECT ECT ELEMENT", which includes approximately 550 lineal feet of earth levee and
7,550 lineal feet of fl od rall along the east side of Des Plaines River Road beginning 320
feet north of the centerline of Euclid Avenue and ending at Palatine Road; 1,400 lineal feet
of fleodwall along the north side of a section of Palatine Road located west of Milwaukee
Avenue; a 125 foot wide hinged closure structure across Milwaukee Avenue located
approximately 80 feet north of the Palatine Road overpass; fourteen structures for interior
drainage consisting of pump stations, closure structures, backflow structures and sluice
gates; two reptile crossings and two environmental mitigation areas located on property
owned by the Forest Preserve District of Cook County and desire to share responsibilities
defined as "non-federal" in the PCA; and
WHEREAS, the CITY, VILLAGE, TRANSPORTATION and NATURAL URAL RESOURCES
desire TRANSPORTATION to complete, in order to accommodate the Levee 37 Project
Element, modifications to Milwaukee Avenue which include a segment of Milwaukee
Avenue raised to the elevation of the profile of the fi odwall and improved conveyance
through the bridge opening, hereinafter referred to a "MILWAUKEE E AVENUE
IMPROVEMENTS"; and
WHEREAS, the PCA, defines the "non-federal" financial responsibility to be the acquisition
of all lards, easements, rights-of-way, relocations and disposal sites required for
construction, operation, maintenance, repair, rehabilitation and replacement of the
PROJECT hereinafter referred to as "LEERDs", a cash payment equal to 5 of the total
PROJECT cost and any additional cash payment necessary to raise the "non-federal" cost
to a minimum of 35% of the total PROJECT cost; and
WHEREAS, the COMPS has estimated the total cost of the LEVEE 37 PROJECT
ELEMENT IT to be $18,026,400, the value of LEVEE 37 PROJECT ELEMENT LEER 's t
e $221,845,, the value of the 5% cash contribution to be $901 X320 and the value of the
additional cash required to be $6, 186,074; and
WHEREAS, NATURAL RESOURCES will receive credit from the CORPS for the
construction of the Levee 50 Project Element as afforded in Section 104 of the Water
Resources Development Act of 1986, Public Lair -662. The value of the Section 104
creditsis estimated to be $142711 000 and Is subjectto change during a final audit, by the
CORPS, of the Levee 50 Project Element costs; and
WHEREAS, NATURAL RESOURCES will apply a portion of its Section 104 credits
towards the additional cash requirement of the LEVEE 37 PROJECT ELEMENT; and
WHEREAS, the Illinois General Assembly appropriated funds to NATURAL RESOURCES
under Public Act 5-0348, Article 485, Section 105 for the PROJECT; and
WHEREAS, NATURAL RESOURCES has determined that the execution of this
AGREEMENT is subject to the signature requirements of the "State Finance Act," 3 ILCS
105/9.02 (1 988 State Bar Edition).
30
NOW THEREFORE, for and in consideration of the benefits to be derived from the
completion of the PROJECT, the sufficiency of which is hereby acknowledged, It is agreed
between the parties hereto as follows:
PART A. SPECIAL CONDITIONS
1- The recitals set forth are incorporated by reference and made a part hereof, the
same constituting the factual basis for this transaction.
2. NATURAL RESOURCES' CES' funding obligation under this AGREEMENT is 5% o
the LEVEE 37 PROJECT ELEMENT cost and i's estimated to be $901,320. NATURAL
RESOURCES' CES' funding obligation will terminate upon the completion of the LEVEE 3
PROJECT ELEMENT, when NATURAL RESOURCES'cost share is expended, or June
3o, 2015, whichever cones first. NATURAL RESOURCES, at its sole option, may
terminate or suspend this contract, in whole or in part, without penalty or further payment
being required, if the Illinois General Assembly or the federal funding source fails to make
an appropriation sufficient to pay such oblig ation, or if funds needed are insufficient for any
reason.
3. TRANS s o TATI N's roadway improvement construction obligation under this
AGREEMENT is limited to those expenses associated with MILWAUKEE AVENUE
IMPROVEMENTS.
. All provisions of this AG EEMEi T Will be binding upon the successors and
assigns of the principal parties hereto.
. This AGREEMENT may only be modified, assigned, supplemented, amended or
extended by mutual agreement, in writing, by the parties hereto.
. Attached hereto, marked "ATTAC MEDIT 2", consisting of four pages and made
part hereof by reference, is a listing of certifications, which must be completed by CITY
and VILLAGE.
PART B. CITY AND VILLAGE
1. The CITY and VILLAGE, in accordance with CORPS requirements for
acquisition of LEE 's, will each acquire I in the name of the CITY or VILLAGE and
without cost to NATURAL RESOURCES, all properties, easements or rights-of-way
(hereinafter referred to as ig property rights") necessary for the construction, operation,
maintenance, repair, rehabilitation and replacement of the LEVEE 37 PROJECT
ELEMENT. The approval of all acquisitions relating only to the LEVEE 37 PROJECT
ELEMENT IT ill be required by NATURAL RESOURCES before olo ng and will be
coordinated by NATURAL AL ES URGES Division of Project Implementation in conjunction
with the CORPS. should litigation be necessary to quiet title in the purchase of any
property, the CITY and/or VILLAGE will be responsible for all costs associated with the
litigation. It is understood that any required property rights now owned by a unit of local or
state government or school district may remain In the name of such unit of local or state
31
R government or school district. However, the CITY and VILLAGE must obtain a permanent
right of entry on any such property rights that will allow for the construction, operation,
maintenance, repair, rehabilitation and replacement of the LEVEE 37 PROJECT
ELEMENT by the CITY and VILLAGE,
2. The CITY and VILLAGE hereby grants to NATURAL RESOURCES, or its
assigns, the right to eater upon any LEVEE 37 PROJECT ELEMENT property rights, hold
in the name of the CITY or VILLAGE, for the purposes of construction, construction
inspections and maintenance inspections.
3. The CITY and VILLAGE will be responsible to abide by all federal, state,, and
local laws and regulations during construction, operation, maintenance, repair,
rehabilitation and replacement of the LEVEE 37 PROJECT ELEMENT, T, and to satisfy all
state environmental laws, regulations, and executive orders that apply because of state
funds being used on the LEVEE 37 PROJECT ELEMENT. The CITY and/or VILLAGE will
e responsible for obtaining any local permits and the IDOT traffic access permit required
for the LEVEE 37 PROJECT ELEMENT.
. The CITY and/or VILLAGE, in accordance with CORPS' requirements for
acquisition of LEEPID' , will be responsible for, without cost to NATURAL RESOURCES,
all utility alterations or relocations, and for all fence removal and/or replacement required
as a result of the LEVEE 37 PROJECT ELEME T construction, including any utility and
fence related work shown on the plans. Utilities include, but aro not Bruited to, electrical,
cable television, and communication lines and oil, gas, sewer, and water pipelines.
5. The CITY and VILLAGE gill -assume responsibility for the operation,
maintenance, repair, rehabilitation and replacement of the LEVEE 37 PROJECT
ELEMENT as long as the LEVEE 37 PROJECT ELEMENT remains authorized by the
CORPS within their respective corporate limits, once NATURAL JI AL PES J CES has
determined that the entire LEVEE 37 PROJECT ELEMENT is complete or that a portion of
the LEVEE 37 PROJECT ELEMENT has become a functional portion of the LEVEE 3
PROJECT ELEMENT. The operation, maintenance, repair, rehabilitation and replacement
will be performed in accordance with the "Operation, Maintenance, Repair, Rehabilitation
and Replacement Manual" attached to this AGREEMENT as ATTACHMENT 3, hereinafter
referred to as "OMManual". All subsequent changes to the OMRRR Manual will be
reviewed and become effective upon approval in writing by the CITY, VILLAGE,
TRANSPORTATION r TATION and NATURAL AL. RESOURCES, Rehabilitation or replacement of
more than 100 lineal foot of the floodwall shall be the primary responsibility of CITY and
VILLAGE and shall be eligible for planning, design and fiscal assistance from NATURAL
RESOURCES, NATURAL RESOURCES reserves the right to make periodic inspections
subsequent to the completion of the LEVEE 37 PROJECT ELEMENT T ire order to ensure
that adequate maintenance is being performed on the LEVEE 3 PROJECT ELEM ENT by
the CITY and VILLAGE, in accordance with the.OMRRR Manual attached to this
AGREEMENT. ENT. Should NATURAL RESOURCES and/or the CORPS determine that a
maintenance problem exists; a joint inspection will be scheduled and made by the CITY,
VILLAGE, CORPS, and NATURAL RESOURCES. r CES. Failure of the CITY and VILLAGE to
properly maintain the LEVEE 37 PROJECT ELEMENT in accordance with the OMRRR
Manual, as indicated by a written report of such 'inspection, will permit NATURAL
RESOURCES, upon thirty 3 days written notice and continued failure of the CITY and
VILLAGE to perform the accessary maintenance work, to enter upon any of the LEVEE 37
x P POJ ECT ELE Ii ENT property rights for the purpose of performing such nnal tenance
32
work. In this instance -the CITY and VILLAGE will reimburse NATURAL RESOURCES
for any and al costs that ray be incurred by NATURAL R ESCES in connection
r{r' therewith.
6. The CITY will operate the hinged closure structure across Milwaukee Avenue
during flood events in accordance with Attachment C of the OMRRR Manual, Operation
of the hinged closure structure across Milwaukee Avenue as part of routine
maintenance will require an I oT traffic access permit. The CIT is responsible for
detour planning and costs associated with traffic detour routings associated with closing
of the hinged closure structure across Milwaukee Avenue. The CITY and the VILLAGE
agree to maintain or caused to be maintained all existing highway appurtenances from
the back of curb to the Fight of way line in their entirety within the LEVEE 37 PROJECT
ELEMENT limits as long as LEVEE 37 PROJECT ELEMENT remains authorized by the
CORP.
'. The CITY and VILLAGE will maintain for a minimum of three years after
completion of the LEVEE 37 PROJECT ELEMENT, adequate boobs, records, and other
supporting documents to verify the amounts, recipients, and uses of all disbursements
of funds paid in conjunction with this AGREEMENT in accordance with the PCA. Not
later than 60 days after the effective date of this AGREEMENT, the COMPS,
DEPARTMENT, TMENT, the CITY and the VILLAGE shall develop procedures for keeping
books, records, documents, and other evidence pertaining to costs and expenses
incurred pursuant this AGREEMENT.
The CITY and VILLAGE will maintain eligibility in the National Flood
Insurance Program. The CITY'and VILLAGE will continue to adopt and enforce required
ordinances, satisfactory to the Federal Emergency Management Agency and NATURAL
RESOURCES, I CES, relat€ e to the development in the fioodpiains ander the jurisdiction and
control of the CITY and/or VILLAGE. The CITY and VILLAGE will be responsible,
without cost to NATURAL Jr AL r ESOU CES, for updating any flood insurance studies
related to the LEVEE 37 PROJECT ELEMENT.
. The CITY and VILLAGE shall engage in only the proposed work approved
herein, and subject to the hazards incident to such activities, assumes all risks
associated therewith. The CITY and VILLAGE assume full and strict liability for the
actions of themselves, all parties in interest, their agents and employees, contractors,
subcontractors and consultants. The CITY and VILLAGE and all parties in interest shall
sere, defend, hold harmless and indemnify the state of Illinois, NATURAL
RESOURCES, TRANSPORTATION and each of their officers, agents, employees,
invitees and others associated with therm (collectively, the state of Illinois) from and
against any and all suits, claims, actions, losses, injuries, damages, judgments and
expenses that are based on, or that arise or are alleged to have risen out of the
performance of the work approved herein, including, but not limited to, any act, willful or
intended, or negligence of the CITY and VILLAGE and any partiesin interest, its agents
and employees, contractors, subcontractors and consultants whether at law, in equity or
common law. In the event the CITY and VILLAGE or any party in interest fall, neglect,
or refuse to comply with any provision of this indemnity, the State of Illinois may tale
any action necessary to protect itself from liability, including any action to pay, settle,
compromise and procure the discharge thereof, in which case the CITY and VILLAGE
or any party in interest, jointly and severally, shall be liable and bound unto the state of
Illinois for any and all expenses related thereto, including attorney's fees.
. After execution of this AGREEMENT and upon direction by NATURAL
RESOURCES, the CITY and VILLAGE shall perform, or cause to be performed, any
investigations for hazardous substances that the CORPS, NATURAL AL RESOURCES,
C ITY or V I LLAG E d eterm ines to be necessary to identify the existence and extent of
33
any hazardous substances regulated under the comprehensive Environmental
l espouse, Compensation, and Liability Act (CERCLA), 42U.S.C. sections 9601-9675,
r. that may exist in, on, or under lands, easements, and rights-of-way that NATURAL
RESOURCES CES determines to be required for the construction, operation} and
maintenance of the LEVEE 37 PROJECT ELEMENT. All actual costs incurred by the
CITY and VILLAGE for such investigations will be cost shared at 17.5% C iTY and
17.5% VILLAGE, with NATURAL RESOURCES forwarding 65 share responsibility to
the CORPS.
1. In the evert It is discovered through any investigation for hazardous
substances or other means, that the hazardous substances regulated under CERCLA
exist in I or under any lands, easements or rights-of-way that FATAL
RESOURCES has determines to be required for the construction, operation, and
maintenance of the LEVEE 37 PROJECT ELEMENT, the CITY, VILLAGE, and
NATURAL RESOURCES shall provide prompt written notice to each other, and the
CITY and/or VILLAGE shall not proceed with the acquisition of the real property
interests until all parties agree that the CITY and/or VILLAGE shall proceed.
12. NATURAL RESOURCES, TRANSPORTATION, the CITY and the VILLAGE
shall determine whether to initiate construction of the LEVEE 37 PROJECT ELEMENT,
r, If already in construction, whether to continue with work on the LEVEE 37 PROJECT
ELEMENT, suspend future performance under this Agreement, or terminate this
Agreement for the convenience of NATURAL RESOURCES, In any case where
hazardous substances regulated under CERCLA are found to exist in, on, or under any
lands, easements, or rl hts-of-gr ay that NATURAL RESOURCES determines to be
required for the construction, operation, and maintenance of the LEVEE 37 PROJECT
ELEMENT. Should NATURAL AL REsoU ROES, TRANSPORTATION, l TATION, the CITY and the
VILLAGE determine to Initiate or continue with construction after considering any liability
that may arise under CERCLA, the CITY and VILLAGE shall be responsible, for the
costs of clean-up and response, to include the costs of any studies and investigations
necessary to determine an appropriate response to the contamination. such costs shall
be the responsibility of the CITY and VILLAGE. In the event the CITY and/or VILLAGE
falls to provide any funds necessary to pay for clean up and response costs or to
otherwise discharge the CITY and VILLAGE"s responsibilities under this paragraph
upon direction by NATURAL RESOURCES, NATURAL RESOURCES may, it its sole
discretion, either terminate this Agreement for the convenience of N ATU RAL
RESOURCES, suspend future performance under this Agreement, or continue work on
the LEVEE 37 PROJECT ELEMENT.
13. The CITY and VILLAGE shall be considered the operator of the LEVEE 37
PROJECT ELEMENT for purposes of CERCLA liability, To the maximum extent
possible the CITY and/or VILLAGE shall operate, maintain, repair, and rehabilitate the
LEVEE 37 PROJECT ELEMENT in a manner that will not cause liability to arise under
CERCLA.
-. Not less than once each year the CIT`{ and the VILLAGE shall inform
affected interests of the extent of protection afforded by the LEVEE 37 PROJECT
ELEMENT.
15. The CITY and VILLAGE shall comply with Section 402 of the Water
F esources I evelopment Act of 1986, as amend d 33 U.S.C. 701 b-12 , which requires
a. ion -Federal interest to have prepared within one year after the date of signing the
PCA, a floodplain management plan. The plan shall be designed to reduce the impacts
}
of future flood everts in the project area, including but not limited to, addressing those
measures to be undertaken by the CITY and VILLAGE to preserve the level of flood
protection provided by this LEVEE 37 PROJECT ELEMENT. As required by section
34
02, as amended, the CITY and VILLAGE shall implement such plan not later than one
year after completion of construction of the LEVEE 37 PROJECT ELEMEl T. The CITY
and VILLAGE shall provide an [information copy of the plan to NATURAL AL RESOURCES
upon its preparation.
16. The CITY and VILLAGE shall also prescribe and enforce regulations to prevent
obstruction of or encroachment on the project that would reduce the level of protection it
affords or that would hinder operation or maintenance of the project.
17. NATURAL RESOURCES, after consultation with the CITY and VILLAGE, shall
determine the improvements emerts required on lands, easements, and rights-of-way to enable
the proper disposal of dredged or excavated material associated with the construction,
operation, and maintenance of the LEVEE 37 PROJECT ELEMENT. Such
improvements may Include, but are not necessarily limited to, retaining dikes, wasteweirs,
bulkheads, embankment , monitoring features, stilling basins, and de -watering pumps and
pipes. NATURAL RESOURCES in a timely manner shall provide the CITY and VILLAGE
with generaI written descriptions of such im ro ements in detail sufficient to enable the
CITY and VILLAGE to fulfill its obligations under th is paragraph, and shall provide the
CITY and VILLAGE with a written notice to proceed with construction of such
improvements. Prior to the end of the period of construction, the CITY and VILLAGE shall
provide all improvements set forth in such descriptions. Furthermore, prior to issuance o
the solicitation for each CORPS construction contract, the CITY and 111 LLAGE s aII
prepare plans and specifications for all improve rents the D EPAI ME NT determines, to be
required for the proper disposal of dredged or excavated material under that contract,
submit such plans and specifications to NATURAL RESOURCES for approval, and
provide such improvements in accordance with the approved plans and specifications.
PART C. DEPARTMENT of NATURAL RESOURCES
1- In accordance with the PCA, NATURAL RESOURCES CES gill review and make
recommendations regarding the planning and engineering of the LEVEE 37 PROJECT
ELEMENT to assure acceptable project design. NATURAL RESOURCES CES gill also
make recommendations regarding the final design plans, specifications, contract
documents and property rights prior to the advertising for bids. Further, NATURAL.
RESOURCES will review all bids received and .make recommendations regarding the
acceptance of a bid or the rejection thereof, approve all change orders to the contract,
and will make random inspections during the construction of the LEVEE 37 PROJECT
ELEMENT except for those associated with the MILWAUKEE KEE A EI E
IMPROVEMENTS. TS. f ATURAL. RESOURCES will not recommend that the CORPS
proceed until the CITY and VILLAGE are given the op.portunity to provide NATURAL.
RESOURCES with written recommendations on LEVEE 37 PROJECT ELEMENT
activities as described in this paragraph.
2. NATURAL RESOURCES, acting as agent for the CITY and VILLAGE, will be
responsible for obtaining all federal and state permits, except for the ]DOT traffic access
permit which will he obtained by CITY and VILLAGE as stated herein in Part B,
Paragraph 3, in the name of the CITY and/or VILLAGE as may he required for the
construction and maintenance of the LEVEE 37 PROJECT ELEMENT except for those
associated with the MILWAUKEE A EN E IMPROVEMENTS.
3. NATURAL RESOURCES will receive credits from the CORPS for work
. performed on the Levee 50 Project Element of the PROJECT and will apply these
credits to the additional cash requirements of the LEVEE 37 PROJECT ELEMENT.
35
4. NATURAL RESOURCES reserves the right to make periodic inspections
subsequent uent to the completion of the LEVEE 37 PROJECT ECT ELEI ENT in order to ensure
that adequate maintenance is being performed on the LEVEE 37 PROJECT ELEMENT,
`
by the CITY and/or VILLAGE in accordance with the OMRRR Manual. Should
NATURAL RESOURCES and/or the CORPS determine that a maintenance problem
exists a joint inspection gill be s heduled and made by the CITY, VILLAGE, the
CORPS, and NATURAL RESOURCES. Failure of the CIT 'and or VILLAGE to
properly maintain the LEVEE 37 PROJECT ELEMENT in accordance with the
Operation and Maintenance Manual, as indicated by a written report of such inspection,
will permit NATURAL RESOURCES, upon thirty 3 days written notice and continued
failure of the CITY and/or VILLAGE to perform the necessary maintenance work, to
eater upon any of the LEVEE 37 PROJECT JECT ELEMEE T property rights for the purpose
of performing such maintenance work. . Cyr this instance the CITY and/or VILLAGE will
reimburse NATURAL, RESOURCES for any and all costs that may be incurred by
NATURAL RESOURCES in connection therewith.
5. NATURAL L RESOURCES has responsibilities related to the Comprehensive
Environmental Response, Compensation, satlon, and Liability Act CERCLA identified in
Parag r phs B9, B 10, B 11, and B 12 of this AGREE MEi T.
PART D, DEPARTMENT of TRANSPORTATION
1. TRANSPORTATION will prepare the final design plans, specifications, ars
contract documents; ents; advertise fork ids; make the contract award; supervise the
construction (resident engineering); and pay, subject to reimbursement ent other
government agencies, for the construction costs associated exclusively with the
MILWAUKEE AVENUE IMPROVEMENTS, NATURAL RESOURCES will review and
approve in writing the plans and specifications for the MILWAUKEE AVENUE
IMPROVEMENTS as they pertain to the function of LEVEE 37 PROJECT ELEMENT.
2. TRANS RTATI N"s plans will show the designated boundaries of all
properties., easements or rights-of-way (hereinafter referred to as "property rights")
required for the construction, operation, maintenance, repair, rehabilitation and
replacement of the MILWAUKEE AVElelUE IMPROVEMENTS.
3. TRANSPORTATION will be responsible for obtaining all permits from Federal
and state agencies required for the construction, maintenance, rehabilitation and
replacement of the MILWAUKEE AVENUE IMPROVEMENTS.
. TRANSPORTATION will ensure that its construction contractors carry all
necessary insurance during each phase of the MILWAUKEE AVENUE
IMPROVEMENTS.
5. TRANSPORTATION shall cause its contractor to hold and save NATURAL
RESOURCES, C IT`S and VILLAGE free from all damages arising from the construction,
of the MI L vAUKEE AV EN E I M PROVEMEI TS except for damages due to the fault or
negligence of NATURAL RESOURCES.
6. TRANSPORTATION will grant access to their property as shown o
TT CH MEI T 4 to the VILLAGE, CITY, CORPS and NATURAL RESOURCES for the
purpose of construction, operations, inspection, maintenance, ce, repair and rehabilitation
of the LEVEE 37 PROJECT ELEMENT for so long as LEVEE 37 PROJECT ELEMENT
r remains authorized by the CORP. Any actions of the VILLAGE, CITY, and/or
NATURAL RESOURCES for the purpose of inspection , operations, mavi ntenance, repair
and rehabilitation of the LEVEE 37 PROJECT ELEMENT that will impact normal traffic
flows wiII re q u re an I D OT traffic access permit.
36
. TRANSPORTATION reserves the right to make such changes, additions,
} repairs and relocations within its statutory limits to the LEVEE 37 PROJECT ELEMENT
in consultation with NATURAL RESOURCES, VILLAGE and CITY, on the right-of-way
as may at any time be considered necessary to permit the relocation, reconstruction,
widening or maintaining of the highway and for other public roadway purposes and/or
provide proper protection to life and property on or adjacent to TI ANSP TATI N's
right-of-way while preserving the flood protection provided by the LEVEE 37 PROJECT
ELEMENT and provisions of ATTACHMENT 1 .
. TRANSPORTATION TATION is responsible for the operation, Maintenance, repair,
rehabilitation and replacement of the MILWAUKEE KEE A ENUE IMPROVEMENTS. The
operation, maintenance, repair, rehabilitation and replacement will be pei ormed in
accordance with the OMRRR Manual. NATURAL AL RESOURCES reserves the right to
rake periodic inspections subsequent to the completion of the MILWAUKEE AVENUE
IMPROVEMENTS in order to ensure that adequate maintenance is being performed on
the MILWAUKEE AVENUE IMPROVEMENTS by TRANSPORTATION, TATION, in accordance
with the OMRRR Manual attached to this AGREEMENT. All subsequent changes to the
OMRRR Manual will be reviewed and become effective upon approval in writing by the
CITY, VILLAGE, TRANSPORTATION and NATURAL AL ESO CES. should
NATURAL RESOURCES and/or the COMPS determine that a maintenance problem
exists; a joint inspection will be scheduled and rade by TRANSPORTATION, the
CORPS, and NATURAL RESOURCES.
I R ITN Ess WHEREOF, the parties hereto have set their hands and seals the day and
year written, and represent that the signatories below are duly authorized to execute
this AGREEMENT for the UPPER DES PLAINES RIVER FLOOD DAMAGE
REDUCTION -PROJECT ELEMENT, LEVEE 37 on behalf of their respective bodies,
and that the effective date of this AGREEMENT is the date approved and executed by
the Director of NATURAL RESOURCES.
STATE of ILLINOIS/DEPARTMENT OF NATURAL RESOURCES
CES
RECOMMENDED:
Gary , Clark Director
Office of Water Resources
APPROVED:
�y
Ellen King -Piet ak,
Chief Fiscal Officer
APPROVED:
Sam Flood, Acting Director
Department of Natural Resources
Date: -- e
APPROVED.
William Richardson
Chief Legal Counsel
37
VILLAGE OF MOUNT PROSPECT
ATTEST:
Af. ... ... �17ZI' �'dv
M Lis AIS it Cle' r0
APPROVED:
Irvana K. Wilks, ayor
D a '.
CITY OF PROSPECT HEIGHTS
►TTEST:-PVED:
7
ILJAIXIWI..�
�S�
William Kerns Cl r '� #' Patrick LudvigA)n, 'Acting Mayor
C,
D ate:
SEAL ---izz
Co
�.
#! 0r {
STATE F ILLINOIS/DE
'�• - #E� TF NSF TAT N
RECOMMENDED:
C97 A
Christine M. meed, P.E.
Director -Division of Highways
Chid Engineer
Date: 1)
Attachments: 1. Pc
. Certifications
. Operation and Maintenance Manual
. IDOT rights-of-way required for project
APPROVED:
-J
Milton . Sees, P.E.
Secretary of Transportation
ate; 9��'
38
Exhibit C
AMENDMENT NUMBER ONE
to an
AGREEMENT
between the
STATE OF ILLINOIS/DEPARTMENT OF NATURAL RESOURCES
and the
STATE OF ILLINOIS/DEPARTMENT OF TRANSPORTATION
and the
CITY OF PROSPECT HEIGHTS
and the
VILLAGE OF MOUNT PROSPECT
for the
UPPER DES PLAINES RIVER FLOOD DAMAGE REDUCTION PROJECT
ELEMENT,
LEVEE 37
hereinafterTHIS AMENDMENT NUMBER ONE 'i's made among the City of Prospect
referred to as the "VILLAGE", the State of Illinois/Department, of Natural Resources,
hereinafter referred to •s "NATURAL RESOURCES" .
Illinois/Department of Transportation, hereinafter referred to as "TRANSPORTATION"
+d entered this Day of 21
, 14
WHEREAS, the CITY, the VILLAGE, NATURAL RESOURCES ,.
nd
TRANSPORTATION entered into an agreement, hereinafter referred to as the
"AGREEMENT," effective September 16,2008, a copy of which i's attached hereto as,
EXHIBIT A and incorporated herein by reference, covering the construction of the Leved
37 Project Element, hereinafter referred to as the "PROJECT",
,r
circumstancesnd
WHEREAS, additional rights-of-way belonging to TRANSPORTATION are
required for completion of the PROJECT; and
WHEREAS, NATURAL RESOURCES has determined that 1) the
necessitating this AMENDMENT NUMBER ONE were not reasonably foreseeable at the
time the AGREEMENT was originally executed, 2) AMENDMENT NUMBER ONE is
germane to the AGREEMENT as originally executed, and 3) this AMENDMENT
NUMBER ONE and the AGREEMENT are in the bestinterest of NATURAL
RESOURCES
►AMS .. State of Illinois; and
d
39
WHEREAS, NATURAL AL I ES UCES has determined that the execution of this
AGREEMENT is subject to the signature requirements of the `State Finance Act," 30
I LCS 105/9.02; and
11 THEREFORE,, for and in consideration of these premises, the parties
hereto agree to the following modifications therein:
To end of paragraph B.6 of the AGREEMENT, add the following language:
'TRANSPORTATION gill groat access to their property as shown on
EXHIBIT B attached hereto and incorporated herein by reference, which
amends ATTACHMENT 4 to the AGREEMENT the intent herein is to grant
such additional access over and upon the additional easement ent areas
shorn on the amended ATTACHMENT 4 to the VILLAGE, CITY, CORPS
and NATURAL RESOURCES for the purpose of construction, operations,
inspections, maintenance, repair and rehabilitation of the LEVEE 37
PROJECT ELEMENT for so long as LEVEE 37 PROJECT ELEMENT
T
remains authorized by the CORPS. Any actions of the VILLAGE, CIT
and/or NATURAL RESOURCES for the purpose of construction,
operations, inspections, maintenance, repair and rehabilitation of the
LEVEE 37 PROJECT ELE II,EI T that will impact normal traffic flows will
require an ID T traffic access permit."
2. The parties to this AMENDMENT NUMBER ONE and the CORPS have
determined the Levee 37 project limits need to be expanded as shown on
EXHIBIT E. TRANSPORTATION TATION has agreed to expand the easement as
shown. The parties to this AMENDMENT NUMBER ONE have agreed
that the COMPS shall prepare surveys describing the easement area a
expanded by this AMENDMENT NUMBE1 ONE. Upon receipt of the
revised surveys from the CORPS, the parties shall review said documents
and, if all concur, attach the surveys to this AMENDMENT NUMBEI ONE
post execution. Each party shall give its approval in writing. Said approval
shall not be unreasonably withheld. It is understood by the parties hereto
that should the Amended Easement surveys net be prepared, reviewed
and approved within a reasonable time after the execution of this
AMENDMENT ENT NUMBEr ONE, TRANSPORTATION shall have the right to
revolve this Amendment.
3. All other covenants under terms of the September 16, 2008 AGREEMENT
remain unchanged and in full force and effect.
41
007
APP�QVI
cott, Harper
Chief Fis7
Ti ryer
I
43
UNIAM
10,e j
iL
M. Lisa Angell, C16,
99'
Stacey Adamson, Clerk
0 .5
Date. I, t 15 1, 1 1
Omer Os I m a n
Director -Division. o,f'HIghwa,ys
Chief Engineer
..... .... ........
to"
Arlene A. Jurac M�ayor
Village of Mount Prospect
LAI= NO] ILFJ A -03
Fall, a v
"t ,v
�ecretary
45
FP Tc -!n -p
"a b
'11- 4",
Cll'o F1 M E "T" 4
47
T �rnp Ea s e rl"), E ' �11 Ir, S t, a g i r� g A r a
ru
'11- 4",
Cll'o F1 M E "T" 4
47
Cll'o F1 M E "T" 4
47
Exhibit D
rrw;
AMENDMENTTHIS new made ng ,�, Prospect
MM M .
referredHeights, hereinafter .,
Village of Mount
Prospect,
hereinafter -e
referred to as the WILLAGE", the State »:
hereinafter referred to as "NATURESOURCES" and the RAL
Illinois/Department hereinafter
.a rw
«w •`
49
50
37 PROJECT ELEMENT remains authorized by the CORPS. Any actions
of the VILLAGE, CITY and/or NATURAL RESOURCES for the purpose of'
constructioin, operations, inspections, maintenance,, repai�r and
rehabilitation: of the LEVEE 37 PROJECT ELEMENT that will impact
normal traffic flows will require an IDOT traffic access permit."
The parties to this AMENDMENT NUMBER TWO and the CORPS have
determined that the Levee 37 project limits need to be expanded' as shown
on EXHIBIT C. TRANSPORTATION has agreed to expand the access
area as shown on such EXHIBIT,
4. The existing second sentence of paragraph A,2 of the AGREEMENT shall
be changed to the following-. "'NATURAL; R ESOU RCE,S' funding obligation
under this AGREEMENT will terminate upon the completion of the PUMP
STATION ELEMENT, when the NATURAL RESOURCES' cost share is
expended, or June 30, 2025, whichever comes first."
After the first sentence of paragraph A,2 of the AGREEMENT, the
following sentence shall be added, "Additionally, Natural Resources'
funding obligation shall include the noin-federal cash arnount for the
STATION ELEMENT added to the LEVEE 37 PROJECT ELEMENT,
estimated to be $1)284,543." 1
6. All other covenants under terms of the AGREEMENT remain unchange
and in full force and effect except and to the extent otherwise provided
herein,, I
IN WITNESS WHEREOF, the parties hereto set their hands and seals the day and year
i
written, and represent thatthe signatories below: are duly authorized to execute thi's
AMENDMENT NUMBER TWO on behalf of their respective bodies, and that the
effective date of this amendment is the date approved and executed by the Director of
NATURAL RESOURCES.
mm"'M
11 .................. .................. I
APP ROV,
Renee Snow
APPROVED FOR' EXECrip
TION
D3te: C7,
1-J, 8", of 1,;
"hl
JIM,
R
Al
51
N 4
Date'.
m. �I
mMwawewma �. .. wwrorxtiGwawwww.w.�t�
52
ATTEST-. APPROVED,
,�s.�-/c.�C
Karen Agorands, Clerk
Date:
WAS"
01
46
a
Ml) Helmer yor
Uty 0
Hab,ights
Xes
Datei,-'X'�A
'kj AIML
[mum
TOFORM,
Chief Counsel
R
53
Fart of the East. Half' of the EasL Fialf of SecLion 24,
Towiiship 42 North, Range 11 East of the Third Pricipal
Meridian, Cook County, Illinois.
Exhibit C
54
Perm. Ecsemdm Cwctlnote lable
t Ecist 11200 NAD183
.... . .... .. ..
P 0 C.
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for visual purposes onir no monotomobtis he vo
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d 4 r, 0 lonvo, t , ti t to e*o 4 0 0 1 m g * r .4 uffl of I 4'r y 71 W1, t4v m4pt V 6 NuT, -g r,
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Notes
o 1ho, basis of this survey Orliflnftteg frG"j a survey conducted by
Heeler UngUievria4 LLV for Village
jay of Mt., Prospect and the Caty
of Prompect Heights, recarArd In C"k County 1111naS2 an jamiary in,
i
2000 40 DOC,#0003016040
Original Coordinate Systoom coproma Army Corpo or Eftointars) vaz
to NA0 27, this Pltkt
and DAIrellpondiog courdioates hayt been [�Ohvertod
to NAD 83 11110oia Stato Plane East r120".
No CoordAnate adjustMaisL Is notal.
Ny 5
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Exhibit C
54
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JOINT FUNDING AGREEMENT
between the
STATE OF ILLINOIS/ DEPARTMENT OF NATURAL RESOURCES
and the
VILLAGE OF MOUNT PROSPECT,
for the
SUPPLEMENTAL FUNDING OF THE UPPER DES PLAINES RIVER FLOOD DAMAGE
REDUCTION
PROJECT ELEMENT, LEVEE 37
THIS AGREEMENT is made between the State of Illinois/Department of Natural Resources,
hereinafter referred to as "NATURAL RESOURCES," and the Village of Mt. Prospect
hereinafter referred to as the "VILLAGE", collectively referred to as "PARTIES".
WITNESSETH:
WHEREAS, the U.S. Army Corps of Engineers; hereinafter referred to as the "CORPS";
completed the Upper Des Plaines River Flood Damage Reduction Project study, herein referred
to as the "STUDY," which recommends, in part, construction of Levee 37 to provide flood
protection for the VILLAGE and the City of Prospect Heights;
WHEREAS, NATURAL RESOURCES and CORPS entered into a Project
Cooperation Agreement, hereinafter referred to as "PCA" and attached hereto as EXHIBIT A, for
the construction of certain flood control projects including Levee 37;
WHEREAS, the VILLAGE, NATURAL RESOURCES, the Illinois Department of
Transportation and the City of Prospect Heights entered into agreement OWR 243, and
subsequent amendments numbers One and Two, effective September 16, 2008, January
311 2014, and September 4, 2020, respectively, copies of which are attached hereto as
EXHIBIT B, EXHIBIT C and EXHIBIT D, covering the construction of Levee 37,
hereinafter referred to as the "PROJECT";
WHEREAS, Amendment Number Two included, in part, provisions for the construction
of an additional pump station, herein referred to as the "PUMP STATION ELEMENT,"
to adequately provide flood protection in association with the previously constructed
aspects of the PROJECT;
WHEREAS, the CORPS, upon recently receiving contractor bids for the PUMP
STATION ELEMENT has estimated the total cost of construction to be $4,137,000;
56
WHEREAS, the CORPS presently maintains a PUMP STATION ELEMENT
construction budget of $2,546,898.74;
WHEREAS, the CORPS now requires Natural Resources to pay a non-federal cash
amount for the PUMP STATION ELEMENT of $1,590,101.26;
WHEREAS, the current $1,590,101.26 amount due the CORPS for the PUMP
STATION ELEMENT is a $305,558.26 increase over the PUMP STATION
ELEMENT estimated funding amount of $1,284,543 agreed to by the parties pursuant
to Amendment Number Two;
WHEREAS the VILLAGE will provide funding in the form of a cash payment to the
NATURAL RESOURCES of $305,558.26 for the PUMP STATION ELEMENT increase;
WHEREAS, the VILLAGE represents to NATURAL RESOURCES that the VILLAGE has the
$305,558.26 cash contribution on hand to provide to NATURAL RESOURCES pursuant to this
AGREEMENT;
WHEREAS, the Illinois General Assembly appropriated funds under Public Act, 101-063 8
Article 11, Section 75 in FY21, for expenditure by the Office of Water Resources for Flood
Control and Water Development Projects, which include the subject PUMP STATION
ELEMENT; and,
WHEREAS, NATURAL RESOURCES has determined that the execution of this
AGREEMENT is subject to the signature requirements of the "State Finance Act," 30 ILC S
105/9.02.
NOW THEREFORE, for and in consideration of the benefits to be derived from the completion
of the PUMP STATION ELEMENT, the sufficiency of which is hereby acknowledged, it is
agreed between the PARTIES hereto as follows:
PART A. SPECIAL CONDITIONS
1. All provisions of this AGREEMENT will be binding upon the successors and assigns of the
principal parties hereto.
57
2. This AGREEMENT may only be modified, assigned, supplemented, amended or extended by
mutual agreement, in writing, by the PARTIES hereto.
PART B. VILLAGE OF MT. PROSPECT
1. VILLAGE shall pay NATURAL RESOURCES $305,558.26 for its share of the PUMP
STATION ELEMENT increase immediately upon full execution of this AGREEMENT.
2. VILLAGE will maintain for a minimum of three years after completion of the PUMP
STATION ELEMENT, adequate books, records, and other supporting documents to verify the
amounts, recipients, and uses of all disbursements of funds paid in conjunction with this
AGREEMENT.
3. VILLAGE shall save, defend, hold harmless and indemnify the State of Illinois, NATURAL
RESOURCES, and their officers, agents, employees, invitees and others associated with them
(collectively, the State of Illinois) from and against any and all suits, claims, actions, losses,
injuries, damages, judgments and expenses that are based on, or that arise or are alleged to have
risen out of the performance of the PROJECT, PUMP STATION ELEMENT or this
AGREEMENT, including, but not limited to, any act or omission, willful or intended, or
negligence of VILLAGE and any parties in interest, its agents and employees, contractors,
subcontractors and consultants whether at law, in equity or common law. In the event VILLAGE
or any party in interest fail, neglect, or refuse to comply with any provision of this indemnity, the
State of Illinois may take any action necessary to protect itself from liability, including any action
to pay, settle, compromise and procure the discharge thereof, in which case VILLAGE or any
party in interest, jointly and severally, shall be liable and bound unto the State of Illinois for any
and all expenses related thereto, including attorney's fees.
PART C. DEPARTMENT OF NATURAL RESOURCES
1. NATURAL RESOURCES will receive and retain funds provided by the VILLAGE
into a non -appropriated account until such time as said funds are requested by the
CORPS upon which NATURAL RESOURCES will transfer said funds to the
CORPS to be used to for payment of the PUMP STATION ELEMENT.
2. NATURAL RESOURCES shall pay all non-federal sponsor cost share for the
PROJECT, including the PUMP STATION ELEMENT, above VILLAGE's
$305,558.26 payment, unless a subsequent agreement is made by the PARTIES.
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3. All NATURAL RESOURCES' obligations under this AGREEMENT will terminate upon
the completion of the PUMP STATION ELEMENT, or June 30, 2025, whichever comes
first.
4. This AGREEMENT is contingent upon and subject to the availability of sufficient funds on
the part of NATURAL RESOURCES. NATURAL RESOURCES may terminate or suspend
this contract, in whole or in part, without penalty or further payment being required, if (i)
sufficient State funds have not been appropriated to NATURAL RESOURCES [or
sufficient Federal funds have not been made available to NATURAL RESOURCES by the
Federal funding source], (ii) the Governor or NATURAL RESOURCES reserves
appropriated funds, or (iii) the Governor or NATURAL RESOURCES determines that
appropriated funds [or Federal funds] may not be available for payment or use. NATURAL
RESOURCES shall provide notice, in writing, to the VILLAGE of any such funding failure
and its election to terminate or suspend this AGREEMENT as soon as practicable. Any
suspension or termination pursuant to this Section will be effective upon receipt of notice by
VILLAGE.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year
written, and represent that the signatories below are duly authorized to execute this
AGREEMENT for funding for the PUMP STATION ELEMENT and that the effective date of
this AGREEMENT is the date approved and executed by the Director of NATURAL
RESOURCES.
0
0
Do
STATE OF ILLINOIS/DEPARTMENT OF NATURAL RESOURCES
Colleen Callahan
Director
Renee Snow
General Counsel
Brad Colantino
Chief Fiscal Officer
Date:
Date:
Date:
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ATTEST:
Karen Agoranos, Clerk
Date:
VILLAGE OF MOUNT PROSPECT
APPROVED:
Arlene A. Juracek, Mayor
Village of Mount Prospect
Date:
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RESOLUTION NO.
A RESOLUTION AUTHORIZING THE MAYOR TO SIGN AN
INTERGOVERNMENTAL AGREEMENT WITH THE
ILLINOIS DEPARTMENT OF NATURAL RESOURCES (IDNR) TO HELP FUND
CONTRUCTION OF A SUPPLEMENTAL STORM WATER PUMPING STATION AT LEVEE 37
WHEREAS, both the 1970 Illinois Constitution (Article VII, Section 10) and the Intergovernmental
Cooperation Act (5 ILCS 220/1 et seq.) authorize and encourage intergovernmental cooperation;
and
WHEREAS, the U.S. Army Corps of Engineers completed the Upper Des Plaines River Flood
Damage Reduction Project study, which recommends, in part, construction of Levee 37 to provide
flood protection for the Village of Mount Prospect and the City of Prospect Heights; and
WHEREAS, the Illinois Department of Natural Resources (IDNR) and the U.S. Army Corps of
Engineers entered into a Project Cooperation Agreement for construction of certain flood control
projects including Levee 37; and
WHEREAS, the Village of Mount Prospect will provide funding in the form of a cash payment to
the IDNR of $305,558.26 for the construction of an additional pump station to adequately provide
flood protection in association with the previously construction of Levee 37; and
WHEREAS, the Village finds that it is in the best interest of the Village to enter into the
Intergovernmental Agreement with the Illinois Department of Natural Resources to help fund
construction of a supplemental storm water pumping station at Levee 37.
NOW THEREFORE BE IT ORDAINED/RESOLVED BY THE MAYOR AND BOARD OF
TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS:
SECTION ONE: That the Board of Trustees do hereby authorize the Village of Mount Prospect
to enter into an Intergovernmental Agreement with the Illinois Department of Natural Resources to
help fund construction of a supplemental storm water pumping station at Levee 37 attached hereto
and made part of this Resolution as Exhibit A.
SECTION TWO: That the Mayor is authorized to sign the agreement and the Village Clerk to attest.
SECTION THREE: That this Resolution shall be in full force and effect from and after its passage
and approval in the manner provided by law.
AYES:
NAYS:
ABSENT:
PASSED and APPROVED this 20th day of April, 2021.
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Arlene A. Juracek, Mayor
ATTEST:
Karen M. Agoranos, Village Clerk
Resolution IDNR Levee 37 April 20212/2
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