Full Text of SB3749 96th General Assembly
SB3749ham002 96TH GENERAL ASSEMBLY
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Rep. Renée Kosel
Filed: 5/4/2010
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| AMENDMENT TO SENATE BILL 3749
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| AMENDMENT NO. ______. Amend Senate Bill 3749 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Illinois Municipal Code is amended by | 5 |
| changing Sections 11-124-5 and 11-139-12 as follows: | 6 |
| (65 ILCS 5/11-124-5) | 7 |
| Sec. 11-124-5. Acquisition of water systems by eminent | 8 |
| domain. | 9 |
| (a) In addition to other provisions providing for the | 10 |
| acquisition of water systems or water works, whenever a public | 11 |
| utility subject to the Public Utilities Act utilizes public | 12 |
| property (including, but not limited to, right-of-way) of a | 13 |
| municipality for the installation or maintenance of all or part | 14 |
| of its water distribution system, the municipality has the | 15 |
| right to exercise eminent domain to acquire all or part of the | 16 |
| water system, in accordance with this Section. Unless it |
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| complies with the provisions set forth in this Section, a | 2 |
| municipality is not permitted to acquire by eminent domain that | 3 |
| portion of a system located in another incorporated | 4 |
| municipality without agreement of that municipality, but this | 5 |
| provision shall not prevent the acquisition of that portion of | 6 |
| the water system existing within the acquiring municipality. | 7 |
| (b) Where a water system that is owned by a public utility | 8 |
| (as defined in the Public 16
Utilities Act) provides water to | 9 |
| customers located in 2 or more municipalities, the system may | 10 |
| be acquired by any either or all of the municipalities by | 11 |
| eminent domain if there is in existence an intergovernmental | 12 |
| agreement between the municipalities served providing for | 13 |
| acquisition . If the system is to be acquired by more than one | 14 |
| municipality, then there must be an intergovernmental | 15 |
| agreement in existence between the acquiring municipalities | 16 |
| providing for the acquisition. | 17 |
| (c) If a water system that is owned by a public utility | 18 |
| provides water to customers located in one or more | 19 |
| municipalities and also to customers in an unincorporated area | 20 |
| and if at least 70% of the customers of the system or portion | 21 |
| thereof are located within the municipality or municipalities, | 22 |
| then the system, or portion thereof as determined by the | 23 |
| corporate authorities, may be acquired, using eminent domain or | 24 |
| otherwise, by either a municipality under subsection (a) or an | 25 |
| entity created by agreement between municipalities where at | 26 |
| least 70% of the customers reside. For the purposes of |
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| determining "customers of the system", only retail customers | 2 |
| directly billed by the company shall be included in the | 3 |
| computation. The number of customers of the system most | 4 |
| recently reported to the Illinois Commerce Commission for any | 5 |
| calendar year preceding the year a resolution is passed by a | 6 |
| municipality or municipalities expressing preliminary intent | 7 |
| to purchase the water system or portion thereof shall be | 8 |
| presumed to be the total number of customers within the system. | 9 |
| The public utility shall provide information relative to the | 10 |
| number of customers within each municipality and within the | 11 |
| system within 60 days after any such request by a municipality. | 12 |
| (d) In the case of acquisition by a municipality or | 13 |
| municipalities or a public entity created by law to own or | 14 |
| operate a water system under this Section, service and water | 15 |
| supply must be provided to persons who are customers of the | 16 |
| system on the effective date of this amendatory Act of the 94th | 17 |
| General Assembly without discrimination based on whether the | 18 |
| customer is located within or outside of the boundaries of the | 19 |
| acquiring municipality or municipalities or entity, and a | 20 |
| supply contract existing on the effective date of this | 21 |
| amendatory Act of the 94th General Assembly must be honored by | 22 |
| an acquiring municipality, municipalities, or entity according | 23 |
| to the terms so long as the agreement does not conflict with | 24 |
| any other existing agreement. | 25 |
| (e) For the purposes of this Section, "system" includes all | 26 |
| assets reasonably necessary to provide water service to a |
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| contiguous or compact geographical service area or to an area | 2 |
| served by a common pipeline and include, but are not limited | 3 |
| to, interests in real estate, all wells, pipes, treatment | 4 |
| plants, pumps and other physical apparatus, data and records of | 5 |
| facilities and customers, fire hydrants, equipment, or | 6 |
| vehicles and also includes service agreements and obligations | 7 |
| derived from use of the assets, whether or not the assets are | 8 |
| contiguous to the municipality, municipalities, or entity | 9 |
| created for the purpose of owning or operating a water system. | 10 |
| (f) Before making a good faith offer, a municipality may | 11 |
| pass a resolution of intent to study the feasibility of | 12 |
| purchasing or exercising its power of eminent domain to acquire | 13 |
| any water system or water works, sewer system or sewer works, | 14 |
| or combined water and sewer system or works, or part thereof. | 15 |
| Upon the passage of such a resolution, the municipality shall | 16 |
| have the right to review and inspect all financial and other | 17 |
| records, and both corporeal and incorporeal assets of such | 18 |
| utility related to the condition and the operation of the | 19 |
| system or works, or part thereof, as part of the study and | 20 |
| determination of feasibility of the proposed acquisition by | 21 |
| purchase or exercise of the power of eminent domain, and the | 22 |
| utility shall make knowledgeable persons who have access to all | 23 |
| relevant facts and information regarding the subject system or | 24 |
| works available to answer inquiries related to the study and | 25 |
| determination. | 26 |
| The right to review and inspect shall be upon reasonable |
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| notice to the utility, with reasonable inspection and review | 2 |
| time limitations and reasonable response times for production, | 3 |
| copying, and answer. In addition, the utility may utilize a | 4 |
| reasonable security protocol for personnel on the | 5 |
| municipality's physical inspection team. | 6 |
| In the absence of other agreement, the utility must respond | 7 |
| to any notice by the municipality concerning its review and | 8 |
| inspection within 21 days after receiving the notice. The | 9 |
| review and inspection of the assets of the company shall be | 10 |
| over such period of time and carried out in such manner as is | 11 |
| reasonable under the circumstances. | 12 |
| Information requested that is not privileged or protected | 13 |
| from discovery under the Illinois Code of Civil Procedure but | 14 |
| is reasonably claimed to be proprietary, including, without | 15 |
| limitation, information that constitutes trade secrets or | 16 |
| information that involves system security concerns, shall be | 17 |
| provided, but shall not be considered a public record and shall | 18 |
| be kept confidential by the municipality. | 19 |
| In addition, the municipality must, upon request, | 20 |
| reimburse the utility for the actual, reasonable costs and | 21 |
| expenses, excluding attorneys' fees, incurred by the utility as | 22 |
| a result of the municipality's inspection and requests for | 23 |
| information. Upon written request, the utility shall issue a | 24 |
| statement itemizing, with reasonable detail, the costs and | 25 |
| expenses for which reimbursement is sought by the utility. | 26 |
| Where such written request for a statement has been made, no |
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| payment shall be required until 30 days after receipt of the | 2 |
| statement. Such reimbursement by the municipality shall be | 3 |
| considered income for purposes of any rate proceeding or other | 4 |
| financial request before the Illinois Commerce Commission by | 5 |
| the utility. | 6 |
| The municipality and the utility shall cooperate to resolve | 7 |
| any dispute arising under this subsection. In the event the | 8 |
| dispute under this subsection cannot be resolved, either party | 9 |
| may request relief from the circuit court in any county in | 10 |
| which the water system is located, with the prevailing party to | 11 |
| be awarded such relief as the court deems appropriate under the | 12 |
| discovery abuse sanctions currently set forth in the Illinois | 13 |
| Code of Civil Procedure. | 14 |
| The municipality's right to inspect physical assets and | 15 |
| records in connection with the purpose of this Section shall | 16 |
| not be exercised with respect to any system more than one time | 17 |
| during a 5-year period, unless a substantial change in the size | 18 |
| of the system or condition of the operating assets of the | 19 |
| system has occurred since the previous inspection. Rights under | 20 |
| franchise agreements and other agreements or statutory or | 21 |
| regulatory provisions are not limited by this Section and are | 22 |
| preserved. | 23 |
| The passage of time between an inspection of the utilities | 24 |
| and physical assets and the making of a good faith offer or | 25 |
| initiation of an eminent domain action because of the limit | 26 |
| placed on inspections by this subsection shall not be used as a |
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| basis for challenging the good faith of any offer or be used as | 2 |
| the basis for attacking any appraisal, expert, argument, or | 3 |
| position before a court related to an acquisition by purchase | 4 |
| or eminent domain.
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| (g) Notwithstanding any other provision of law, the | 6 |
| Illinois Commerce Commission has no approval authority of any | 7 |
| eminent domain action brought by any governmental entity or | 8 |
| combination of such entities to acquire water systems or water | 9 |
| works. | 10 |
| (h) The provisions of this Section are severable under | 11 |
| Section 1.31 of the Statute on Statutes. | 12 |
| (i) This Section does not apply to any public utility
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| company that, on January 1, 2006, supplied a total of 70,000 or
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| fewer meter connections in the State unless and until (i) that
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| public utility company receives approval from the Illinois
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| Commerce Commission under Section 7-204 of the Public Utilities
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| Act for the reorganization of the public utility company or
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| (ii) the majority control of the company changes through a
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| stock sale, a sale of assets, a merger (other than an internal
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| reorganization) or otherwise. For the purpose of this Section,
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| "public utility company" means the public utility providing
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| water service and includes any of its corporate parents,
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| subsidiaries, or affiliates possessing a franchised water
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| service in the State.
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| (Source: P.A. 94-1007, eff. 1-1-07.) |
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| (65 ILCS 5/11-139-12) (from Ch. 24, par. 11-139-12) | 2 |
| Sec. 11-139-12. For the purpose of acquiring, | 3 |
| constructing, extending, or
improving any combined waterworks | 4 |
| and sewerage system under this Division
139, or any property | 5 |
| necessary or appropriate therefor, any municipality
has the | 6 |
| right of eminent domain, as provided by the Eminent Domain Act. | 7 |
| The fair cash market value of an existing waterworks and | 8 |
| sewerage system,
or portion thereof, acquired under this | 9 |
| Division 139, which existing system
is a special use property,
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| may be determined by considering Section 15 of Article I of the | 11 |
| Illinois Constitution, the Eminent Domain Act, and the Uniform | 12 |
| Standards of Professional Appraisal Practice and giving due | 13 |
| consideration to the income, cost, and market approaches to | 14 |
| valuation based on the type and character of the assets being | 15 |
| acquired. In making the valuation determination, the | 16 |
| historical and projected revenue attributable to the assets, | 17 |
| the costs of the assets, and the condition and remaining useful | 18 |
| life of the assets may be considered while giving due account | 19 |
| to the special use nature of the property as used for water and | 20 |
| sewerage purposes. in accordance with the following valuation | 21 |
| principles. | 22 |
| Additionally, in determining the fair cash market value of | 23 |
| existing utility facilities, whether real or personal, | 24 |
| consideration may be given to the depreciated value of all | 25 |
| facilities and fixtures constructed by the utility company and | 26 |
| payments made by the utility company in connection with the |
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| acquisition or donation of any waterworks or sanitary sewage | 2 |
| system. | 3 |
| The fair cash market value of existing facilities, whether | 4 |
| real or
personal, may be determined by utilizing the net | 5 |
| earnings which are attributable
to the facilities in question | 6 |
| for the preceding fiscal year on the date the
condemnation | 7 |
| petition is filed,
over the remaining useful life of the | 8 |
| facilities. Said earnings may be
capitalized under an annuity | 9 |
| capitalization method and discounted to present
value. The fair | 10 |
| cash market value of any extensions, additions or improvements
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| of the existing system made subsequent to the date that the | 12 |
| condemnation
petition is filed may be determined by utilizing | 13 |
| the probable net earnings
attributable to the facilities in | 14 |
| question over the
remaining life of the facilities. The | 15 |
| probable earnings may be capitalized
under an annuity | 16 |
| capitalization method and discounted to present value. | 17 |
| The value of the land and easements upon which the | 18 |
| facilities are situated
may be determined in accordance with | 19 |
| the foregoing principles, giving
due account to the special use | 20 |
| of the property for water and sewerage purposes. | 21 |
| For the purposes of this Section no prior approval of the | 22 |
| Illinois Commerce
Commission, or any other body having | 23 |
| jurisdiction over the existing system,
shall be required. | 24 |
| (Source: P.A. 94-1055, eff. 1-1-07.) | 25 |
| Section 99. Effective date. This Act takes effect upon |
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| becoming law.".
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