Full Text of SB0083 97th General Assembly
SB0083sam001 97TH GENERAL ASSEMBLY | Sen. A. J. Wilhelmi Filed: 2/25/2011
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| 1 | | AMENDMENT TO SENATE BILL 83
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 83 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Illinois Municipal Code is amended by | 5 | | changing Section 11-124-5 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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| 1 | | 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 a majority either or all of the municipalities | 11 | | by 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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| 1 | | 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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| 1 | | 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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| 1 | | 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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| 1 | | 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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| 1 | | 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.
| 5 | | (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
| 13 | | company that, on January 1, 2006, supplied a total of 70,000 or
| 14 | | fewer meter connections in the State unless and until (i) that
| 15 | | public utility company receives approval from the Illinois
| 16 | | Commerce Commission under Section 7-204 of the Public Utilities
| 17 | | Act for the reorganization of the public utility company or
| 18 | | (ii) the majority control of the company changes through a
| 19 | | stock sale, a sale of assets, a merger (other than an internal
| 20 | | reorganization) or otherwise. For the purpose of this Section,
| 21 | | "public utility company" means the public utility providing
| 22 | | water service and includes any of its corporate parents,
| 23 | | subsidiaries, or affiliates possessing a franchised water
| 24 | | service in the State.
| 25 | | (j) Any water system acquired by a municipality or | 26 | | municipalities under this Section shall have all work on the |
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| 1 | | acquired system performed by employees who are members of a | 2 | | collective bargaining unit or by contractors whose employees | 3 | | are members of a collective bargaining unit. | 4 | | (Source: P.A. 94-1007, eff. 1-1-07.)
| 5 | | Section 99. Effective date. This Act takes effect upon | 6 | | becoming law.".
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