CCR1990078COMMON COUNCIL - CITY OF MUSKEG0
RESOLUTION #78-90
WITH THE MILWAUKEE METROPOLITAN SEWERAGE DISTRICT
RESOLUTION APPROVING THE SETTLEMENT AGREEMENT
WHEREAS, the City of Muskego, Waukesha County, Wisconsin (the
"City") receives sewage treatment and disposal service from the
Milwaukee Metropolitan Sewerage District ("District"), and
WHEREAS, the City had contested the equity in and validity of the
District's actions in allocating capital costs for sewer services
September, 1984, and
rendered since the District changed the method of allocation in
WHEREAS, representatives of the City have participated in the
FLOW (Fair Liquidation of Waste) organization which has been
instrumental in negotiating with the District over the method of
allocating capital costs, and
WHEREAS, the City has reached tentative agreement with the
District over the proper allocation of capital costs, and
0 WHEREAS, the City has determined to enter into an
Intergovernmental Cooperation Agreement as a settlement of the
dispute over the allocation of capital costs of the District.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City
of Muskego as follows:
substantially the form attached hereto as Exhibit A and
1. The Intergovernmental Cooperation Agreement in
approved. The Mayor and City Clerk are hereby authorized to
incorporated herein by this reference (the "Agreement") is hereby
execute the Agreement and deliver it to the District.
District pursuant to Section 9.l(a) of the Agreement.
2. That a copy of this resolution be provided to the
City or any parts thereof in conflict with the provisions hereof
shall be, and the same are, hereby rescinded insofar as the same
may so conflict.
3. All prior resolutions, rules or other actions of the
shall for any reason be held to be illegal or invalid, such
illegality or invalidity shall not affect any other provisions
hereof.
4. In the event that any one or more provisions hereof
a
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5. The foregoing shall take effect on April 10, 1990 upon
adoption and approval in the manner provided by law.
Adopted and recorded this 4th day of Apri 1 , 1990.
CITY OF MUSKEG0
By :
Wayne G. Salentine, Mayor
(SEAL)
By :
Jean K. Marenda, City Clerk
-INTERGOVERNMENTAL COOPERATION AGREEMENT - - -
between
City of Muskego and Milwaukee Metropolitan
Sewerage District
TABLE OF CONTENTS
Page
ARTICLE I
1.1
1.2
1.3
1.4
1.5
1.6
1.8
1.7
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
DEFINITIONS
Actual Ability of the District's System AS
Constructed And Operated to Treat ..... 3
Affected Municipalities ........... 3
Agreement .................. 3 Average Daily Base Flow ........... 3
Base Floor Adjustment Factor ......... 3
BOD ..................... 4
Capacity Allocation ............. 4 Capacity Factor ............... 4
Capital Cost Contribution .......... 4
Closing Date ................. 4
Commercial Users ............... 4
commission .................. 5
Connection Point ............... 5
Cost Recovery Procedures Manual ....... 5
Discharge Factor ............... 5
District ................... 6
District's Design Capacity .......... 6
District Rules and Regulations ........ 6
District Sewerage System ........... 6
District SSES ................ 7
Domestic Wastewater ............. 7
Equivalent Residential Unit ......... 7
Industrial Users ............... 7
Infiltration ................. 8
Infiltration/Inflow ............. 8
Inflow .................... 8
Maximum Peak Daily Flow ........... 9
Maximum Peak Hourly Flow ........... 9
Operation and Maintenance Charge ....... 9
Opinions of Municipality's Counsel ...... 10
Opinion of the District's Counsel ...... 10
Process Wastewater .............. 10
Residential Unit ............... 10
Residential User ............... 10
Sewer Extension Request ........... 10
Tax Exempt Financing ............. 11
TSS .....................
water Pollution Abatement Program
11 ...... 11
': ARTICLE I1 CAPITAL COST CONTRIBUTION
2.1 Contribution ................. 12
2.2 Contributions by Affected Municipalities ... 12
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Table of Contents Page
@ ARTICLE I11 CAPACITY AND FUTURE CAPITAL COSTS
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
3.13
3.14
Capacity Allocation ..........
Capacity Reallocation .........
Utilization of Capacity Allocation ...
Method to Determine Utilization of
Determination of Available Capacity
Capacity Allocation
Factors ...............
Flow Measurements ...........
Annual Report of Capacity Utilization
and Conveyance Limitations ......
Capacity Utilization Procedure-Sewer
Connections .............
Continued Use .............
Future Capital Costs ..........
Payment for Future Capital Improvements
Negotiations Concerning Additional
Late Charges/Refunds
Peak Flow Limitations .........
.........
..........
Capacity Allocation .........
... ... ...
...
... ...
...
... ... ... ... ...
... ...
ARTICLE IV REPRESENTATIONS AND WARRANTIES ? 4.1 Corporate Organization ............
4.2 Authorization; Enforceability ........
4.3 No Violation or Conflict ...........
4.4 District Representations ...........
4.5 Municipality Representations .........
ARTICLE V INDEMNIFICATION FOR CLAIMS OF THIRD PARTIES
5.1 District's Indemnity .............
5.2 Municipality's Indemnity ...........
5.3 Procedure for Indemnification with
5.4 Set-off ................... Respect to Third Party Claims .......
ARTICLE VI CLAIMS BETWEEN THE PARTIES
6.1 Mutual Responsibility ............
6.2 Procedure for Claims by District or
6.3 Amount of Claim
................ ............... Municipality
ARTICLE VI1 SURVIVAL ...................
13
15
13
16
19
21
22
23
25
25
29
36
31
38
41
42
41
43
43
44
44
45
46
47
47
4a
49
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Table of Contents
.) ARTICLE VI11 CONDITIONS PRECEDENT TO OBLIGATIONS OF
THE MUNICIPALITY
8.1 Litigation ..................
8.2 Deliveries by the District at Closing ....
8.3 Approval of Tax Exempt Financing .......
ARTICLE IX CONDITIONS PRECEDENT TO OBLIGATIONS OF
THE DISTRICT
ARTICLE X
9.1 Deliveries by the Municipality at Closing ..................
9.2 Ratification .................
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
ARTICLE XI
11.1
11.2
11.3
11.4
11.5
11.6
11.7
11.9
11.8
11.10
FUTURE DISTRICT AND MUNICIPALITY RELATIONSHIP
Joining the District .............
Option to Form Entity of Municipalities
District Rules and Regulations
Service Area Boundaries ........... Autonomy ...................
Post-Ratification Legislative and
Litigation Activities ...........
Operation and Maintenance Charges
Dispute Resolution
........ ...
.............. ......
MISCELLANEOUS
Entire Agreement; Amendment .
Assignment ..........
Notices ...........
Counterparts; Headings ....
No Reliance
Severability
Non-Ratification .......
Refund of Capital contribution
Closing ...........
Governing Law ........
......... .........
........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Page
50
50
51
53
54
55
55
55
55
59
59
59
63
64
64
65
66
66
66
67
68
69
69
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Exhibit 1:
Exhibit 2:
Exhibit 3:
Exhibit 4:
Exhibit 5:
Exhibit 6:
Exhibit 7:
Exhibit 8:
Exhibit 9:
MASTER LIST OF EXHIBITS
Net Local Costs - WPAP
Contribution and Capacity Allocation
Map
District Capacity Allocation
Affected Municipalities' Peak Flow Limitations/
Connection Points Peak Flow Limitations
Opinions of Municipality
Opinion of District
Computation of Interest
Percentage of Future Capital Costs
Exhibit 10: Refund Provision Computation
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INTERGOVERNMENTAL COOPERATION AGREEMENT
INTERGOVERNMENTAL COOPERATION AGREEMENT, entered into this
day of , 1990 by and between the MILWAUKEE
METROPOLITAN SEWERAGE DISTRICT, a municipal corporation organized
and existing under the laws of the State of Wisconsin with prin-
cipal offices at 260 West Seeboth Street, Milwaukee, Wisconsin
(hereinafter the "District"), and the CITY OF MUSKEGO, a municipal
corporation organized and existing under the laws of the State of
Wisconsin with principal offices at W182 S8200 Racine Avenue,
Muskego, Wisconsin (hereinafter the "Municipality").
WITNESSETH
WHEREAS, the District owns and operates a sewerage system for
collection, treatment and disposal of all sewage and drainage of
the sewerage service area, including collection, transmission and
disposal of stormwater and groundwater and the abatement of com-
bined sewer overflows;
WHEREAS, the District undertook, in 1977, a major capital
improvement project intended to enhance and preserve the
District's sewage treatment system;
WHEREAS, the Municipality is located outside of the
District's legal boundary but partially within the District's
service area;
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.
WHEREAS, the Municipality has the duty to provide for the
collection, treatment and disposal of sewage generated within its
legal boundary but does not have the capital facilities to pro-
vide for sewage treatment and disposal;
WHEREAS, the Municipality has utilized and desires to con-
tinue to utilize the District's sewerage system for the purpose
of transmission, treatment and disposal of the Municipality's
sewage;
WHEREAS, the Municipality desires to share in the capital
costs of the project so that sewerage treatment services can be
provided by the District for the Municipality;
WHEREAS, the District and the Municipality are entering into
this Agreement in cooperation for the joint governmental purpose
of providing sewerage treatment services to property owners and
citizens within their respective boundaries;
WHEREAS, since 1983 the Municipality and the District have
been involved in litigation over the allocation of capital costs
of the project: and
WHEREAS, as a precondition toward settlement of the litiga-
tion, a contribution toward capital costs was reached through
compromise;
NOW, THEREFORE, pursuant to ss66.898 and 66.30 of the
Wisconsin Statutes and in consideration of the mutual covenants
and agreements of the parties contained herein and the mutual
benefits to be desired from this Agreement, the parties hereto
agree as follows:
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1.1
1.2
1.3
1.4
1.5
ARTICLE I
DEFINITIONS
Actual Ability of the District's System As Constructed
And Operated to Treat. "Actual Ability of the
District's System As Constructed and Operated to Treat"
shall mean the capability of the District's system as
constructed and as operated to collect, transport,
store, pump, process and dispose of sewage and drainage.
Affected Municipalities. "Affected Municipalities" or
"Municipality" shall mean one of the following incor-
porated Municipalities: the Cities of Brookfield,
Mequon, Muskego, New Berlin and the Villages of Butler,
Elm Grove, Germantown, Menomonee Falls and Thiensville.
Only those Municipalities that ratify and approve this
Agreement can be Affected Municipalities.
Aqreement. "Agreement" shall mean this document
together with the Exhibits attached hereto.
Averaqe Daily Base Flow. "Average Daily Base Flow"
shall mean the wastewater generated by a Municipality,
excluding all inflow and infiltration, over a calendar
year and divided by the number of days in the year.
Base Flow Adjustment Factor. "Base Flow Adjustment
Factor" shall mean an assumed use of base flow of
1.00 million gallons per day over and above any base
flow utilized or vacant land allocations.
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1.6
1.7
1.8
1.9
1.10
1.11
- BOD. "BOD" shall mean biochemical oxygen demand, as
defined in the 17th edition of Standard Methods for the
Examination of Water and Wastewater.
Capacity Allocation. "Capacity Allocation1' shall mean
the right to discharge capacity factors to the
District's system up to the limits set forth in this
Agreement.
Capacity Factor. "Capacity Factor" shall mean the para-
meters of the Capacity Allocation expressed in three
factors: average daily base flow, daily BOD, and daily
TSS .
Capital Cost Contribution. "Capital Cost Contribution"
or "Contribution" shall mean the payment made to the
District by each of the Affected Municipalities repre-
senting their contribution toward the costs of the
District's capital projects set forth on Exhibit 1. The
term may also be used, from time to time in the context
of the Agreement, to reference the aggregate contribu-
tions made by all Affected Municipalities.
Closing Date. "Closing Date" shall mean 6 months
following execution of this Agreement, or such other
date as the parties may mutually agree to in writing.
Commercial Users. "Commercial Users" shall mean any
users not otherwise defined as residential or
industrial. Within the class of commercial users there
shall be three subclasses:
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a) Discharge Certified Commercial Users. "Discharge
Certified Commercial Users" shall mean commercial users
that have reported their discharge factors to the
District and have attested to their accuracy.
b) waste Strength Certified Users. "Waste Strength
Certified Users" shall mean commercial users that have
reported their wastewater strengths to the District and
have attested to their accuracy.
c) Non-Certified Commercial Users. "Non-Certified
Commercial Users" shall mean commercial users that have
not certified their discharge factors or wastewater
strengths to the District.
1.12 Commission. "Commission" shall mean the governing body
of the Milwaukee Metropolitan Sewerage District created
under ~66.882, wis. Stats., as amended.
1.13 Connection Point. "Connection Point" shall mean those
points where the District's sewerage system connects to
the Municipality's sewer system.
1.14 Cost Recovery Procedures Manual. "Cost Recovery
Procedures Manual" shall mean the District publication,
as amended, setting forth specific policies and proce-
dures for the implementation of the user charge program,
including user charge rates.
1.15 Discharge Factor. "Discharge Factor" shall mean the
ratio of wastewater discharged to total water consumed
by a user from all sources. Domestic Discharge Factor
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1.16
1.17
1.18
1.19
shall mean the ratio of domestic wastewater discharged
to total water consumed. Process Waste Discharge Factor
shall mean the ratio of process wastewater discharged to
total water consumed.
District. "District" shall mean the Milwaukee
Metropolitan Sewerage District created under s66.882,
wis. Stats., as amended.
District's Design Capacity. "District's Design
Capacity" shall mean the planned ability of the
District's sewerage system to treat sewage and drainage;
usually expressed as flow rates, pollutant treatment
ability or solids utilization/disposal ability. It is
different than and distinct from the actual ability of
the District's sewerage systems to treat sewage and
drainage usually expressed as flow rates, pollutant
treatment ability or solids utilization/disposal ability.
District Rules and Requlations. "District Rules and
Regulations" shall mean the rules and regulations
adopted by the Commission pursuant to s66.902, Wis.
Stats., as amended.
District Sewerage System. "District Sewerage System"
shall mean the system of structures, devices, equipment,
appurtenances, real estate and personal property owned
by the District pursuant to its authority under 566.88
to 66.918, Wis. Stats., as amended, related to water
quality.
I
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1.20
1.21
1.22
1.23
District SSES. "District SSES" shall mean the systema-
tic detailed Sanitary Sewer Evaluation Study undertaken
by the District to determine infiltration/inflow sources
and methods of rehabilitation.
Domestic Wastewater. "Domestic Wastewater" shall mean
the water and water-carried wastes from residences,
business buildings, institutions or industrial estab-
lishments generated by personal activities (from sources
such as kitchens, bathrooms, lavatories, and toilets).
Strength characteristics of this wastewater shall be
deemed to be equal to those of the "equivalent residen-
tial unit" unless, in the case of a commercial user,
strength characteristics are determined to be different
by the completion of a waste strength certification
form. Domestic wastewater does not include process
wastewater from industrial establishments, infiltration
or inflow.
Equivalent Residential Unit. "Equivalent Residential
Unit (ERU)" shall mean the average daily discharge of
domestic wastewater per person from a residential unit.
An ERU shall be defined as 67 gallons per person per
day of average daily base flow at 310 mg./l. BOD,
370 mg./l. TSS.
Industrial Users. "Industrial Users" shall mean any
users described by the SIC Divisions and codes listed in
Appendix A of Chapter 17 of the District's Rules and
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0 1.24
1.25
1.26
Regulations that discharge process wastewater. within
this class of system users, there shall be three
subclasses:
a) Discharge Certified Industrial Users. "Discharge
Certified Industrial Users" shall mean industrial users
that have reported their discharge factors to the
District and attested to their accuracy.
b) Waste Strength Certified Industrial Users. "Waste
Strength Certified Industrial Users" shall mean indus-
trial users that have reported their wastewater strengths
to the District and have attested to their accuracy.
c) Non-Certified Industrial Users. "Non-Certified
Industrial Users" shall mean industrial users that have
not certified their discharge factors or wastewater
strengths to the District.
Infiltration. "Infiltration" shall mean water entering
a sewer system, including sewer service connections,
from the ground, through such means as, but not limited
to, defective pipes, pipe joints, connections, or
manhole walls. Infiltration does not include, and is
distinguished from, inflow.
Infiltration/Inflow. "Infiltration/Inflow" shall mean
the total quantity of water from both infiltration and
inflow without distinguishing the source.
Inflow. "Inflow" shall mean the water discharged into a
sewer system, including service connections, from such
-8-
sources as, but not limited to, roof leaders, cellar,
yard, and area drains, foundation drains, sump pumps,
cooling towers, drains from springs and swampy areas,
manhole covers, cross connections from storm sewers and
combined sewers, catch basins, storm waters, surface
runoff, street wash waters, or drainage. Inflow does
not include, and is distinguised from infiltration.
1.27 Maximum Peak Daily Flow. "Maximum Peak Daily Flow"
shall mean the volume of base flow, infiltration and
inflow passing a point in the sewer system over any con-
tinuous 24 hours which is permissible under this
contract.
1.28 Maximum Peak Hourly Flow. "Maximum Peak Hourly Flow"
shall mean the volume of base flow, infiltration and
inflow, passing a point in the sewer system over any
continuous 60 minutes which is permissible under this
Agreement.
1.29 Operation and Maintenance Charqe. "Operation and
Maintenance Charge" shall mean charges developed pur-
suant to Chapter 17 of the MMSD Rules and Regulations
and the current Cost Recovery Procedures Manual appli-
cable for the year in question for the recovery of
operation and maintenance expenses.
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1.30 Opinions of Municipality's Counsel. "Opinions of
Municipality's Counsel" shall mean the opinion of
Mulcahy 6 Wherry, S.C., and other legal counsel of
Municipality, in the respective form of Exhibit 6
attached hereto.
1.31 Opinion of the District's Counsel. "Opinion of the
District's Counsel" shall mean the opinion of the
District's general counsel in the form of Exhibit 7
attached hereto.
1.32 Process Wastewater. "Process Wastewater" shall mean any
wastewater, other than domestic wastewater and infiltra-
tion and inflow, discharged to the sewerage system.
1.33 Residential Unit. "Residential Unit" shall mean any
existing residence that is served, or any proposed
residence that will be served, by an existing sewer as
evidenced by a sewer extension approved by the District
or a sewer extension request submitted for review and
approval by the District. Residential Unit permits up
to 4 residences per structure.
1.34 Residential User. "Residential User" shall mean any
occupant of a private residence.
1.35 Sewer Extension Request. "Sewer Extension Request"
shall mean the letters, plans and specifications, and
forms, including Department of Natural Resources form
3400-59, that are submitted to District for its approval
of sewer plans as provided for in the Wisconsin Statutes
and the MMSD Rules and Regulations.
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'I .. i
1.36
1.37
1.38
Tax Exempt Financing. "Tax Exempt Financing" shall mean
an obligation as to which nationally recognized bond
counsel issues an opinion that the interest paid on the
obligation may be excluded from gross income for Federal
income tax purposes.
TSS. - "TSS" shall mean Total Suspended Solids as defined
in the 17th edition of Standard Methods for the
Examination of Water and Wastewater.
Water Pollution Abatement Program. "Water Pollution
Abatement Program" or "WPAP" shall mean the program of
the District consisting of the planning, design and
construction projects set forth on Exhibit 1.
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ARTICLE I1
CAPITAL COST CONTRIBUTION
0 2.1 Contribution. Subject to the terms and conditions of
this Agreement, at Closing, the Municipality agrees to
contribute to the District's capital cost program in
accordance with Section 2.2. The Municipality's
Contribution shall constitute its proportionate share of
the District's capital projects set forth on Exhibit 1.
The District and the Municipality acknowledge and agree
that the Municipality's Contribution is being made to
effectuate the joint governmental purposes set forth in
this Agreement including, but not limited to, providing
for the collection, transmission, treatment and disposal
of sewage generated within the District's ultimate sewer
service area. e 2.2 Contributions by Affected Municipalities. The total
Contributions payable by the Affected Municipalities to
the District for the capital projects set forth in
Exhibit 1 shall be One Hundred Twenty Million and no/100
Dollars (Sl20,000,000). The Contributions required
under this Agreement shall be allocated to each of the
Affected Municipalities as shown on Column 1 of
Exhibit 2.
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*'
ARTICLE I11
CAPACITY AND FUTURE CAPITAL COSTS
3.1 Capacity Allocation. The District hereby agrees to
provide the following total amounts of Capacity Allocation to the
Affected Municipalities for the term of this Agreement in amounts
not to exceed the following:
Average Daily Base Flow 21,893,860 gals.
Average Daily BOD Loading 56,604 lbs.
Average Daily TSS Loading 67,560 lbs.
The Capacity Allocation shall be initially allocated to
each of the Affected Municipalities as shown on Column 2 of
Exhibit 2.
3.2 Capacity Reallocation. To the extent that a Municipal-
ity has not utilized all of its Capacity Allocation pursuant to
Section 3.8, the Municipality may reallocate any part of its
unutilized Capacity Allocation to other Affected Municipalities
in any manner and on any terms and conditions mutually agreeable
to any transferee Municipality and transferor Municipality within
the Affected Municipalities. Prior to the reallocation of any
Capacity Allocation the transferee Municipality shall apply to
the District on District provided forms, or in any other manner
mutually agreed to by the parties, for approval of the proposed
reallocation. The District shall provide in a timely manner all
information reasonably requested by the transferee Municipality
to enable it to complete such application. The District shall
have 45 days after receipt of the application to review and
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'approve OK reject in writing such reallocation. If the District
rejects the'application, the written rejection will indicate the
reasons for rejection and the way, if any, the proposed realloca-
tion must be changed for approval. In the event the District's
approval or rejection has not been made within such period, the
proposed reallocation will be deemed to have been approved.
The District shall approve the reallocation if it con-
tains :
a. All information reasonably requested by the
District concerning the proposed reallocation; and
b. Information demonstrating that after reallocation
the total Capacity Allocation of Average Daily Base Flow, BOD and
TSS allocated to all Affected Municipalities will not be
exceeded.
If the application for reallocation is approved,
the transferee Municipality shall then provide the District with
documentation of transfer on mutually agreed forms. Transferee
Municipality shall have access to such approved reallocated
Capacity Allocation on the fifteenth (15th) day following the
District's receipt of documentation of transfer.
The Agreement between the District and the trans-
feree and transferor Municipalities, as amended, will be deemed
amended by the replacement of the Capacity Allocations contained
in this Agreement, as amended, with the addition or subtraction
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- . . . . .
of the Capacity Allocation contained in the transferee
Municipalityis approved application after receipt by the District
of the documentation of sale.
3.3 Utilization of Capacity Allocation. The District and
the Municipality agree that the Municipality has the right to use
the amounts of the Capacity Allocation, plus or minus any
reallocation of Capacity Allocation to Municipality pursuant to
Section 3.2 herein, under the terms of this Agreement. The allo-
cated Capacity Allocation and the Maximum Peak Hourly and Maximum
Peak Daily Flow limits are not intended to be a percentage of the
District's Design Capacity or of the Actual Ability of the
District's System as Constructed and Operated to Treat sewage and
drainage.
When the Capacity Allocation utilized by the
Municipality, as determined by Section 3.5 of this Agreement,
exceeds 85% of the sum of the Capacity Allocation originally
allocated to Municipality, plus or minus any reallocation of
Capacity Allocation to Municipality, the District shall send
written notification of the fact to the Municipality.
when the Capacity Allocation utilized by Municipality
exceeds 95% of the originally allocated Capacity Allocation,
plus or minus any reallocated Capacity Allocation, the District
shall again send written notice of that fact to the Municipality.
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The parties acknowledge that infiltration and inflow
reduction is not available as a means of staying within Capacity
Allocation. Infiltration and inflow and the Capacity Allocation
are not related.
If for any reason the Municipality exceeds its origi-
nally allocated Capacity Allocation, plus or minus any reallo-
cated Capacity Allocation, the Municipality shall immediately
undertake its best efforts to eliminate any excess use.
If the excess utilization is not eliminated within 90
days after written notice thereof by the District, the District
may enforce the Capacity Allocation herein by any lawful means.
3.4 Method to Determine Utilization of Capacity Allocation.
The District will determine utilization of Capacity Allocation
allocated to the Affected Municipalities by summing base flow for
residential, commercial and industrial utilization using the
methodology set forth in paragraphs a. through i., plus a base
flow adjustment factor of 1.00 mgd, plus the base flow calcula-
tion for vacant land using the methodology set forth in
paragraph j :
a. Residential Users. The residential utilization of
capacity shall be calculated as the number of Residential Units
multiplied by the Municipal Occupancy Factor multiplied by ERU.
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b. Municipal Occupancy Factor. For purposes of this
Agreement, the Municipal Occupancy Factor shall be 3.1 people per
household for 3 bedroom apartments or single family homes,
2.5 people per household for 2 bedroom apartments and 1.5 people
per household for 1 bedroom and studio apartments.
c. Non-Certified Commercial Users. The capacity units
for a Non-Certified Commercial User shall be:
1. Flow, gallons = Average Daily Base Flow
(Gallons) as established by the District's
user charge system.
ii. BOD, lbs. = (Flow/1,000,000) X 310 mg./l X 8.34
iii. TSS, lbs. = (Flow/1,000,000) x 370 mg./l x 8.34
d. Discharqe Certified Commercial Users. The capacity
units for a Discharge Certified Commercial User shall be:
1. Flow, gallons = Average Daily Base Flow
(Gallons) as reduced by applicable discharge
factors.
ii. BOD, lbs. = (Flow/1,000,000) X 310 mg./l X 8.34
iii. TSS, lbs. = (Flow/1,000,000) x 370 mg./l x 8.34
e. Wastestrenqth Certified Commercial Users. The
capacity units for a Wastestrength Certified Commercial User
shall be:
i. Flow, gallons = Average Daily Base Flow
(Gallons) as reduced by applicable discharge
factors.
ii. BOD, lbs. = (Average Daily Base Flow (MGD) as
reduced by applicable discharge factors) x
(certified discharge strength in mg/l BOD) x
8.34.
iii. TSS, lbs. = (Average Daily Base Flow (MGD) as
reduced by applicable discharge factors) x
(certified discharge strength in mg/l TSS) x
8.34.
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f. Non-certified Industrial Users. The capacity units
for a Non-Certified Industrial User shall be:
i. Flow, Gallons = Average Daily Base Flow as
established by the District's user charge
system.
ii. BOD, lbs. = (Average Daily Base Flow (MGD)) X
wastestrength, whichever is higher) x 8.34.
(Typical process wastestrength or domestic
iii. TSS, lbs. = (Average Daily Base Flow (MGD)) x
(typical process wastestrength or domestic
wastestrength, whichever is higher) x 8.34.
g. Discharge Certified Industrial Users. The capacity
units for a Discharge Certified Industrial user shall be:
i. Flow, gallons = Average Daily Base Flow
(gallons as reduced by applicable discharge
factors).
0
ii. BOD, lbs. = (Average Daily Base Flow (MGD)
reduced by applicable discharge factors) x
(typical process wastestrength in mg/l BOD or
domestic wastestrength, whichever is higher) x
8.34.
iii. TSS, lbs. = (Average Daily Base Flow (MGD) as
reduced by applicable discharge factors) x
domestic wastestrength, whichever is higher) x
(typical process wastestrength in mg/l TSS or
8.34.
iv. Any connection dedicated to domestic waste
will be treated as residential.
h. Wastestrength Certified Industrial User. The capa-
city units for a Discharge Certified Industrial user shall be:
i. Flow, gallons = Average Daily Base Flow
(Gallons) as reduced by applicable discharge
factors.
ii. BOD, lbs. = (Average Daily Base Flow (MGD) as
reduced by applicable discharge factors) x
(certified discharge strength in mg/l BOD) x
8.34.
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0
0
iii. TSS, lbs. = (Average Daily Base Flow (MGD) as
reduced by applicable discharge factors x
(certified discharge strength in mg/l TSS) x
0.34.
i. The Municipality shall submit all data reasonably
requested by District to determine the consumption of Capacity
Allocation including but not limited to:
i. The number of Residential Units currently in
existence.
ii. Total water consumption for Non-Certified
Commercial Users.
iii. Individual water consumption for each
Certified Commercial and Industrial Users.
iv. Acres of industrial development connected to
sewer.
v. Acres of commercial development connected to
sewer.
This data shall be submitted to District in accordance with the
schedules and procedures published in the Cost Recovery
Procedures Manual.
j. Added to the utilization of Capacity Factors shall
be the Capacity Factors allocated to vacant but served or to be
served parcels. The criteria to be applied to the vacant parcels
shall be the same for residential and multi-family parcels as per
Section 3.4.a. and b. Commercial lands shall be allocated
1,000 gallons per day per acre at 310 mg/l BOD and 370 mg/l TSS,
with industrial lands allocated 2,000 gallons per acre per day at
the same BOD and TSS loadings as commercial lands.
3.5 Determination of Available Capacity Factors. The
District will determine the amount of unconsumed Capacity Factors
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2'
0
0
0
I,
available to Municipality by subtracting from the total amount of
each Capacity Factor allocated to Municipality (plus or minus any
transfer of Capacity Factors from other Affected Municipalities
pursuant to Section 3.2) the sum of base flow for residential,
commercial and industrial utilization using the methodology set
forth in Section 3.4.a. through i., plus a base flow adjustment
factor of 1.00 mgd, plus the base flow calculation for vacant
land using the methodology set forth in Section 3.4.j.
a. After January 1, 1990, upon District approval of a
sewer extension request by Municipality, the District will deduct
the amount of each Capacity Factor for all residential, commer-
cial and industrial development which could be directly connected
to the sewer being extended. within 90 days after execution of
this Agreement, the Municipality shall furnish to the District,
for its review and approval, a complete inventory in a mutually
agreeable format of pre-1990 vacant or approved but served or to
be served parcels within their service area. Capacity Allocation
for these parcels shall then be computed according to
Section 3.4.
b. If existing sewered areas are redeveloped or
existing users substantially change their amount of flow or
loadings discharged, the change will be added to or subtracted
from the Municipality's Capacity Allocation.
-20-
"'
0
0
0
3.6 Flow Measurements.
a. The peak hourly and peak daily flow of sewage from
the Municipality shall be measured at sewage gauging stations
which shall be installed by the District, at the District's
expense, at the point within the Municipality where the
Municipality's system is connected to the District's facilities.
The District shall make the electronic metering
data available for each individual metering site and shall
include sufficient cabinet space for the Municipality to install
its own telemetering equipment. All Operation and Maintenance
costs of these facilities shall be paid for by the District.
b. Monitoring Accuracy Assurance:
1. Meter Calibration: District metering devices
shall be calibrated, and adjusted if needed, consistent with the
manufacturers' recommendations. Calibrations and adjustments
shall be performed only by qualified District employees or
agents. The Municipality shall have advance notice of calibra-
tions and written notice of calibration results and adjustments
to meters at its connection points as identified in
Exhibit 5.
2. Check Meters: The Municipality may install
parallel or "check" flow meters at its discretion. Any damage to
the District gauging equipment shall be compensated for in full
by the Municipality. All costs associated with such check meters
shall be borne by the Municipality.
-21-
c. The Municipality shall have the right to make an
independent inspection of the District flow meters, or to have an
independent company check the metering equipment at any time;
provided, however, no such inspection shall be made unless the
Municipality shall first give the District two (2) working days'
notice of its intent to have the inspection made. All reasonable
costs and expenses of the Municipality's inspection shall be
borne by the District if the meters are found to be inaccurate
for the measurement of peak flow as defined by the manufacturer.
3.7 Annual Report of Capacity Utilization and Conveyance
Limitations.
a. On or before November 1 of each year, the District
shall prepare and submit to the Municipality an annual uniform
report containing:
1. The average daily base flow, average daily BOD
loading and average daily TSS loading Capacity Allocations
(a) for each Municipality as amended by any reallocations
access by the Municipality pursuant to Section 3.2
(b) designed for the District.
2. The average daily base flows, average daily
and average daily TSS loadings utilized during the
past calendar year by (a) each Affected Municipality pursuant to
Section 3.4 herein; and (b) the District.
approved for
herein; and
BOD loadings
-22-
3. A summary of any available data concerning
each connection point (1) in the Affected Municipalities: and
peak flows resulting from major storms during the prior year at
(2) in the District.
4. The maximum hour and maximum day conveyance
capacity of the District's interceptor system, peak daily
hydraulic, BOD and TSS capacity of the wastewater treatment faci-
lities and the storage capacity of the in-line tunnels, as
designed.
b. The data provided by the District and the provision
by the District of the data described in a(l)(b), a(2)(b),
a(3)(b) and a(4) above, are intended solely as a courtesy to the
Municipality, to spare the Municipality the cost of making annual
public information requests and may not be relied upon by the 0 Municipality for any other purpose.
c. The data provided by the District and the provision
by the District of the data described in paragraph 1 above, does
not in any way imply any obligation on the part of the District
to sell or provide to the Municipality anything, including but
not limited to by enumeration, additional Capacity Allocation or
additional peak flows.
d. The District agrees to provide to the Municipality
the District's 1989 Capacity Allocation data for the Affected
Municipalities by November 1, 1990.
3.8 Capacity Utilization Procedure-Sewer Connections. To
utilize the Capacity Factors allocated under this Agreement, the
-23-
e
e
e
Municipality shall make application on forms provided by the
District or in any other manner mutually agreed to by the parties.
The application forms may request information reasonably required
by the District to consider and process the application. The
District shall provide in a timely manner all information reason-
ably requested by the Municipality to enable it to complete such
application. The District shall have 45 days after receipt of
the application to review and approve or reject in writing such
capacity utilization. If the District rejects the application,
the written rejection will indicate the reasons for rejection and
the way, if any, the proposed capacity utilization must be
changed for approval. In the event the District's approval or
rejection has not been made within such period, the proposed
capacity utilization will be deemed to have been approved. The
District shall approve the capacity utilization application
provided:
a. The proposed utilization is within the amount of
Capacity Factors originally allocated under Section 3.1 herein,
including any reallocation to or from the Municipality pursuant
to Section 3.2;
b. The proposed utilization is consistent with all
applicable federal and state law;
The approval of a capacity utilization application
constitutes approval by the District for the Municipality to con-
nect its local sanitary sewers proposed in the application to the
District's system. The District shall use the methods, analysis
-24-
,L
and procedures set forth in Section 3.4 and Section 3.5 for
all determinations relating to capacity utilization calculations
required to evaluate any capacity utilization application.
3.9 Continued Use. The District will provide on an uninter-
rupted and continuous basis the Capacity Allocation within the
peak flow limits as provided in this Agreement. Municipality's
use of the Capacity Allocation provided in this Agreement will
not be interrupted, except for reasons beyond the District's
reasonable direction and control, such as acts of God, damage
by third parties, war, insurrection, strike, or work stoppage,
and other forces majeure; any restriction of the Affected
Municipalities use of Capacity Allocation due to any such acts
or events as listed above shall be prorated to all impacted users
of the District's system to the extent that such proration is
reasonable and practical.
3.10 Future Capital Costs.
a. The District and the Municipality agree that, as
the District incurs total net local costs (total costs less total
grants) for construction planned as part of the WPAP that are
higher than the total estimated net local costs, as shown in
Exhibit 1, or incurs total net local costs for construction not
planned but necessary to complete the WPAP, the District will
submit an invoice for the Municipality's share of incurred excess
net local costs pursuant to Section 3.11 of this Agreement. The
determination of total net local costs exceeding the estimated
-25-
4. '
total net local costs in Exhibit 1 shall be made on an aggregate
basis of all WPAP projects rather than on an individual project
basis.
b. The District and the Municipality further agree
that, apart from the projects planned as part of the WPAP, if
(i) the District incurs additional capital costs to be funded
through the capital budget in order to preserve, repair or main-
tain any part of the District's capital assets or (ii) the
District, pursuant to its lawful authority, undertakes additional
capital projects or modifies any part of the District's system,
the District will submit an invoice for the Municipality's share
of the incurred total net local costs pursuant to Section 3.11 of
this Agreement. The Municipality shall not pay the District for
any capital projects related to expansion of the District's
Design Capacity except as provided in Section 3.10(c) of this
Agreement.
For purposes of this Article, expansion of the
District's Design Capacity shall occur only when a new project,
outside of those listed in Exhibit 1, results in an increase to
the District's ability to treat base flow, or influent lbs. of
BOD, or influent lbs. of TSS, or Maxim Daily Flows, or Peak
Hourly Flows, or to store gallons of Peak Daily Flow in order to
remain in compliance with then current state or federal regula-
tory requirements or which enables the District to comply with
any higher standards established by the Commission.
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Examples of non-expansion of the District's Design
Capacity are, without limitation:
i. Additional solids-handling capacity associated
with required tertiary treatment would not be an expansion of
the District's Design Capacity.
ii. Additional interceptors to pick up flows from
unsewered areas or to provide for additional conveyance are
not expansions of the District's Design Capacity.
c. Except as provided in Section 3.10.d. of this
Agreement, the Municipality's share of additional capital costs
shall remain as stated in Section 3.10(a) and (b) of this
Agreement unless the District expands its Design Capacity. In
cases where Design Capacity expands, the Municipality and the
District will negotiate a change in the share of costs to be paid
by the Municipality or such revised share of costs shall be
resolved pursuant to the dispute resolution mechanism in
Section 10.1 of this Agreement. The share of the percentage
shall remain as set forth in Section 3.10(a) and (b) of this
Agreement until a change has been negotiated or has been finally
resolved in the dispute resolution mechanism.
d. The percentage of future capital cost payments by
the Municipality to the District under Section 3.10 herein for
the year 2006 and beyond shall be renegotiated as herein pro-
vided. The Municipality and the District shall commence nego-
tiations on or about January 2, 2005, to agree upon a mutually
acceptable percentage of future capital cost payments. All other
-27-
.I
provisions of this Agreement, including all remaining areas of
Section 3.10, shall remain in full force and effect during this
process and thereafter.
In the event the Municipality and the District are
unable to reach an agreement by midnight, December 31, 2005, both
parties may take whatever action is necessary to bring the
dispute before the Public Service Commission. The parties agree
that the Public Service Commission shall have jurisdiction of the
dispute. The Municipality agrees that while the matter is
pending before the Public Service Commission it shall pay charges
at the rate in effect for the preceding year. There shall be no
penalties or interest accruing in the event the rate determined
by the Public Service Commission is an increase over the pre-
ceding year, 2005. The Order of the Public Service Commission
shall be retroactive to January 1, of the year in question.
If the PSC should set an annual percentage rate for
the balance of the debt at a rate higher than 15.17% set for the
year of 2005, the Municipality shall have sixty (60) days from
the effective date of the PSC order within which to elect to pre-
pay the remaining principal balance at the 2005 rate of 15.17%.
If the Municipality elects to prepay its respective
share of the debt, it shall prepay the balance within six (6)
months of the exercise of the option to prepay.
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(’
3.11 Payment for Future Capital Improvements.
a. In order to provide the Municipality with advance
notice of charges, the District will submit a copy of its pro-
posed capital budget to the Municipality not less than 30 days
prior to adoption of the budget in the year preceding the budget
year. The District will also at that time submit reasonable,
detailed and written explanations of proposed capital costs in
the budget year, which may be invoiced to the Municipality as
defined in Section 3.11.c. of this Agreement. The information
will include the following:
(1) Pursuant to Section 3.10.a. of this Agreement,
total net local costs of the WPAP expected to be expensed through
the budget year which are in excess of the amounts set forth in
Exhibit 1:
(a) List of WPAP projects from Exhibit 1 by
their six-digit alphanumeric project identification numbers:
(b) List of costs expected to be expensed:
(c) List of grant or other contributions in-
aid of construction dollars expected to be earned:
(d) The total of (b) above less (c) above is
compared to the total net local cost in Exhibit 1. The dif-
ference represents either the excess or the shortage of total net
local costs when compared to the original estimate for the WPAP
in Exhibit 1.
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..
(2) Total net local costs pursuant to
Section 3.10.b. of this Agreement expected to be spent in the
budget year are comprised of the following:
(a) Expected costs during the budget year for
non-WPAP capital projects under Section 3.10.b. of this
Agreement, identified by increased Design Capacity and non-
increased Design Capacity cost elements;
(b) Expected grants or other contributions-
in-aid-of-construction earned for capital projects under
Section 3.10.b. of this Agreement.
(3) Expected subsidized loans and expected MMSD
debt proceeds to be utilized and applied in financing budget year
project costs under Section 3.10.a. and b. of this Agreement.
(4) Expected principal or interest due in the
budget year and in each succeeding year until the debt is repaid
for:
(a) Any and all subsidized loans for projects
under Section 3.10.a. and b. of this Agreement that were or are
expected to be made prior to the budget year.
(b) Any and all other MMSD debt for projects
under Section 3.10.a. and b. of this Agreement that were or are
expected to be issued prior to the budget year.
(5) Expected principal or interest due in the
budget year and in each succeeding year until the debt is repaid
for:
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-. .
,.
(a) Any and all subsidized loans for projects
under Section 3.10.a. and b. of this Agreement that are expected
to be made during the budget year.
(b) Any and all other MMSD debt for projects
under Section 3.10.a. and b. of this Agreement that are expected
to be issued during the budget year.
(6) Principal or interest due in the budget year
for all subsidized loans made to finance the WPAP project esti-
mated net local costs as shown in Exhibit 1:
b. The District will notify the Municipality of the
Municipality's expected share of the budget costs not more than
15 days after adoption of the District's capital budget and
budget financing .
c. It is the intent of the parties that the
Municipality's share of principal or interest payments made by
the District under this Article of the Agreement will be paid by
the Municipality in the same year in which the District makes the
principal or interest payments except in the first year of a new
issue on which the District makes a principal or interest
payment. In the case of the principal or interest payment for
the first year of a new issue, the Municipality's share of the
principal or interest payments will be made in the year after the
payment is made by the District. It is also the intent of the
parties that the Municipality's share of direct cash spending for
projects under this Article of the Agreement will be paid by the
Municipality in the year after the District makes the direct cash
spending .
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The District will submit an invoice for the
Municipality's share pursuant to Exhibit 9 for non-increased
Design Capacity budget year costs pursuant to Section 3.10 of
this Agreement, which includes the Municipality's share of prin-
cipal or interest on subsidized loans and other debt, to the
Municipality on or before April 1 of each year succeeding the
budget year or upon completion of the District's annual financial
audit for that year, whichever is later. The Municipality's
share of non-increased Design Capacity budget year costs pursuant
to Section 3.10 of this Agreement shali be comprised of and
determined as follows:
(1) Net local costs - cash financing:
(a) Net local costs as determined under
Section 3.11.a.(1)(d) and 3.11.a.(2)(a)
and (b) of this Agreement; less
(b) Proceeds from subsidized loans and
District issued debt applied to incurred
costs pursuant to 3.11.a.(3) of this
Agreement.
The results of this computation shall repre-
sent the cash financing costs of which the
Municipality shall be obligated for a percen-
tage pursuant to Exhibit 9.
(2) Net local costs - debt financing excluding
subsidized loans in Section 3.11.c.(3):
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(a) Principal or interest charges pursuant to
Section 3.11.a.(4) of this Agreement
which are payable in the same year the
invoice is made; plus
(b) Principal or interest charges pursuant to
Section 3.11.a.(5) of this Agreement paid
in the prior year.
The percentage share applied to principal and
interest charges will be the percentage shown
on Exhibit 9 which relates to the year in
which the debt service payments are made.
(3) Subsidized Loans: The Municipality's share of
principal or interest charges on subsidized
loans pursuant to Section 3.11.a.(6) of this
Agreement shall be the sum of (i) an amount
equal to 11.5% of the principal or interest on
the amount of subsidized loans up to $230.940
million and (11) an amount equal to the per-
centage shown in Exhibit 9 of the principal or
interest on subsidized loans above $230.940
million.
The Municipality, at its option, may prepay to the
District the remaining principal share of any outstanding debt
incurred by the District on its behalf or debt expected to be
incurred by the District on the Municipality's behalf under
Sections 3.11.a.(4) and (5) of this Agreement. The determination
-33-
0
0
0
of the Municipality's share of the above mentioned outstanding
debt will be calculated using the percentage listed in Exhibit 9
for the year in which the Municipality prepays its obligation.
Upon such prepayment, the Municipality's obligation to make
current or future principal or interest payments on the above-
mentioned debt shall cease. The Municipality's share of any
interest due on existing debt shall be calculated to the date of
prepayment and added to the prepayment amount. The Municipality
shall notify the District of its intention to exercise its option
to prepay the Municipality's share of outstanding debt no later
than March 1 of the year in which the invoice is to be rendered.
d. The Municipality recognizes that the District may
incur and pay costs in advance of payment by the Municipality.
Therefore, the Municipality shall pay an additional financing
charge based on the calculation method outlined in Exhibit 8.
Such additional finance charge shall be included on the
District's annual invoice rendered to the Municipality.
e. The invoice will be due and payable to the District
within thirty (30) days of the invoice date but not prior to
May 1 of the year in which the invoice is sent. Payment shall be
made in cash, check or wire transfer in lawful money of the
United States of America.
f. The District and the Municipality recognize that
the District's capital budgets may contain projects, project
spending and incurred costs that are greater than those amounts
under this Agreement. The Municipality recognizes that the
-34-
District has the right to finance the District's capital budget
in any legal manner that it chooses and that project-by-project
computation of cash financing, debt financing and allocation of
non-grant contributions-in-aid-of-construction, such as earned
interest, is unnecessary. Consistent with this, the District and
the Municipality agree that the pro rata mixture or share of cash
financing, debt financing and non-grant contributions-in-aid-of-
construction that is used to determine incurred costs for this
Article shall be the same as what the District shall have
experienced for all capital projects during the year for which
the invoice pursuant to Section 3.11.c. of this Agreement is sub-
mitted.
g. The District and the Municipality recognize that,
as of the date of this Agreement, time for notification to the
Municipality of the 1990 budget year total net local incurred
costs and other information has passed. In order to avoid a gap
in costs payable by the Municipality for 1990 expenditures under
Section 3.10.a. and b. of this Agreement, the District agrees to
provide notification to the Municipality under Section 3.11.a.
and b. of this Agreement within thirty (30) days of the date of
this Agreement. The District will submit an invoice to the
Municipality for these costs on or before April 1, 1991, in
conformance with Section 3.11.c. of this Agreement. The District
further acknowledges and agrees that if the City of Muskego,
Village of Germantown or the Village of Thiensville have already
paid their respective 1990 capital cost payments to the District
-35-
and if any one of them ratify this Agreement, the ratifying
Municipality shall receive a refund of its respective 1990 capi-
tal cost payment from the District within 30 days after the
Closing Date.
3.12 Late Charges/Refunds.
a. Payments received after the due date of May 1 wi .11
include a late payment simple interest charge equal to 1.5% of
the unpaid balance per month, prorated to the date of payment.
No action or proceeding to contest the invoiced amount may be
brought and no defense against an action to collect such amount
may be maintained until at least 05% of the amount has been paid
in full.
Any amount ordered refunded to the Municipality by
the dispute resolution mechanism shall be due the Municipality,
together with simple interest on the amount of the overcharge
equal to 1.5% of the refund balance per month from the date when
the monies were received by the District.
Any unpaid balance ordered due the District by the
dispute resolution mechanism shall be due to the District,
together with simple interest on the amount due equal to 1.5% of
the amount due per month from the date when the original invoice
was due and owing.
b. The Municipality and the District recognize that
the amounts per Exhibit 1 may be less than or may exceed the
amounts in Exhibit 1 upon completion of WPAP. In order to deter-
mine the refund due to the Municipality or the payment due to the
-36-
.I
District the calculation per Exhibit 10 must be completed. Such
refund or payment per Exhibit 10 shall be determined within
three (3) months from final draw on subsidized loans, plus simple
interest thereon measured from the date of payment under this
Agreement pursuant to Article I1 to the date of the payment or
refund but not later than May 1, of the year succeeding deter-
mination. Interest shall be equal to the average annual rate for
funds invested in the State of Wisconsin Local Government
Investment pool or successor pool thereof. Any payment or refund
not settled as of the due date shall bear simple interest equal
to 1.5% per month of the payment or refund amount plus accumu-
lated interest as of the due date.
c. Notwithstanding Sections 3.12.a. and b. of this
Agreement, in the event the District has not been awarded or
received subsidized loans totaling $230.940 million when the WPAP
attains a net local cost of $1,162,201,000, any principal or
interest on additional subsidized loans up to $230.940 million
applicable to the net local cost of $1,162,201,000 will be
invoiced to the Municipalities at 11.5% and not at the annual
percentage set forth in Exhibit 9.
3.13 Neqotiations Concerning Additional Capacity Allocation.
a. The District and the Municipality agree that
nothing in this Agreement prohibits the District and the
Municipality from entering into negotiations concerning addi-
tional Capacity Allocation.
-37-
b. Negotiations between the District and the
Municipality concerning additional Capacity Allocation will begin
after either party's delivery of a written request to commence
negotiations to the other party.
c. If no agreement concerning additional Capacity
Allocation is reached within forty-five (45) days after the start
of negotiations:
1. The District and the Municipality may mutually
agree to continue negotiations for an additional ninety (90)
days; or
2. The Municipality may develop a plan for alter-
nate sewage treatment facilities, including identification of a
cost-effective sewer service area to support such facilities.
d. If the Municipality proceeds to develop a plan for
alternate sewage treatment facilities, the Municipality may
request assistance from District in obtaining data and other
information pertaining to the development of the alternate faci-
lity. District will supply any reasonably available data and
other information for such purpose.
3.14 Peak Flow Limitations.
The District and the Municipality agree that a peak
flow-restricting device will be placed within the Municipality at
each connection point between the District's system and the
Municipality. This device shall operate in a manner so as to
limit the peak flow entering the District to that set forth in
Exhibit 5. The peak flow limitation shall not be affected by any
-30-
reallocations of Capacity Allocations pursuant to this Agreement.
The device shall be adjusted, or if necessary replaced, to imple-
ment different limits on peak flow entering the District in the
event that the District and the Municipality agree on different
limits on peak flow entering the District. The District will pay
for the device, or any replacement thereof, and will be respon-
sible for its operation and maintenance.
Maximum Peak Hourly Flow and Maximum Peak Daily Flow
limits may be reallocated among the Affected Municipalities with
the prior written consent of the District. Consent shall not be
unreasonably withheld so long as the net impact of the reduction
in peak flow and increase in peak flow shall not increase the
peak flow in the District's system at any connection point. It
is reasonable for the District to withhold consent even if the
District's system is hydraulically capable of handling the peak
reallocation if the proposed reallocation results in a net
increase in peak flow in the District's system at any connection
point. It is reasonable for the District to withhold consent
even if future use of the District's system by Milwaukee County
communities will not be restricted by the proposed reallocation
if the proposed reallocation results in a net increase in peak
flow in the District's system at any connection point.
The Municipality may not apply to increase peak flow to
a connection point upstream from the connection point from which
it is being reallocated. The Municipality shall, with six (6)
-39-
months written notice to the District, maintain the right to
reallocate peak flow back to the original amounts contained in
Exhibit 5.
-40-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 corporate organization.
a. The District represents and warrants to the
Municipality that the District is duly organized, validly
existing and in good standing under the laws of the State of
Wisconsin and has the full corporate power and authority to carry
on its governmental functions and to allocate the Capacity
Allocation to Municipality pursuant to this Agreement.
b. The Municipality represents and warrants to the
District that Municipality is a municipal corporation duly
organized, validly existing in good standing under the laws of
the State of Wisconsin and has full corporate power to receive
the Capacity Allocation from the District pursuant to this @ Agreement.
4.2 Authorization: Enforceability.
a. The District represents and warrants to the
Municipality that the execution, delivery and performance of this
Agreement and other documents and instruments required by the
District to carry out the Closing of this Agreement are within
the corporate powers of the District and, as of the Closing Date,
have been duly authorized by all necessary corporate action by
the Commission. This Agreement and other documents and instru-
ments hereby required will be, when executed and delivered by
the District, valid and binding obligations of the District,
enforceable against the District in accordance with their terms.
-41-
b. The Municipality represents and warrants to the
District that the execution, delivery and performance of this
Agreement and other documents and instruments required by the
Municipality to carry out the Closing of this Agreement are
within the corporate powers of the Municipality and, as of the
Closing Date, have been duly authorized and approved by its
(Village Board/Common Council). Subject to Section 8.3, this
Agreement and other documents and instruments hereby required
will be, when executed and delivered by the Municipality, valid
and binding obligations of the Municipallty, enforceable against
the Municipality in accordance with their terms.
4.3 No Violation or Conflict.
a. The District represents and warrants to the
Municipality that the execution, delivery and performance of this
Agreement and the consummation of the transactions intended
hereby will not on the Closing Date conflict with, violate,
result in a breach of or constitute a default under any law,
regulation, judgment, order or decree or any contract or
agreement to which the District is a party or by which it is
bound.
b. The Municipality represents and warrants to the
District that the execution, delivery and performance of this
Agreement and the consummation of the transactions intended
hereby will not on the Closing Date conflict with, violate,
result in a breach of or constitute a default under any law,
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regulation, judgment, order or decree or any contract or
agreement to which the Municipality is a party or by which i.t is
bound.
4.4 District Representations. The District hereby repre-
sents and warrants to the Municipality that:
a. Representations. All representations, warranties,
covenants, and agreements made in this Agreement are true and
correct in all material respects.
b. Capital Projects. Exhibit 1 contains a complete
and accurate list of the District capital projects (including
good faith estimates of individual project amounts and good faith
estimates of total grant financing) as approved by the District.
c. Capacity. The District has the capability to
satisfy Municipality's Capacity Allocation as set forth in this
Agreement.
4.5 Municipality Representations. The Municipality hereby
represents and warrants to the District that all representations,
warranties, covenants, and agreements made in this Agreement are
true and correct in all material respects.
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ARTICLE V
INDEMNIFICATION FOR CLAIMS OF THIRD PARTIES
5.1 District's Indemnity. The District agrees to indemnify
and hold harmless the Municipality from and after the execution
of this Agreement against any claim, action or proceeding by
third parties for any and all damage, liability or loss suffered
by the Municipality (including, but not limited to, reasonable
attorneys' fees and any other costs and expenses incidental to
the defense or settlement of any claim) (hereinafter referred to
as "Indemnification Claim") arising out of, resulting from or
relating to:
a. Any and all liabilities or obligations of the
District that are not specifically assumed by the Municipality
under the terms of this Agreement;
b. Any product liability, personal injury or property
damage claims related to the District's operation and maintenance
of its sewerage system or the construction of its capital pro-
j ects .
5.2 Municipality's Indemnity. The Municipality agrees to
indemnify and hold harmless the District against any claim,
action or proceeding by third parties for any and all damage,
liability or loss suffered by the District (including, but not
limited to, reasonable attorneys' fees and any other costs and
expenses incidental to the defense or settlement of any claim)
(hereinafter referred to as "Indemnification Claim") from claims
by third parties arising out of or resulting from any product
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liability, personal injury or property damage claims related to
the Municipality's operation and maintenance of its local sewer
system or the construction of the Municipality's local sewer
system capital projects, including as to operation, maintenance
and construction, any limitations on Maximum Hourly and Maximum
Daily Peak flows allowed pursuant to this Agreement.
5.3 Procedure for Indemnification with Respect to Third
Party Claims. In the event that the District or the Municipality
shall seek indemnification hereunder from the other with respect
to any Indemnification Claim, the party seeking indemnification
shall give prompt written notice of the Indemnification Claim,
stating the nature and basis of said Indemnification Claim and
the amount thereof to the extent known. within thirty (30) days
after receipt of such notice, the other party shall satisfy the
Indemnification Claim, elect at its expense to assume the good
faith defense of such Indemnification Claim using counsel accep-
table to the indemnified party or using the indemnifying party's
staff counsel, or set forth in writing any dispute with respect
to such Indemnification Claim: provided, however, that the indem-
nified party shall have the right to participate, at its own
expense, using counsel of its choice, with respect to any
Indemnification Claim. If such indemnifying party shall dispute
such Indemnification Claim, no amount shall be payable with
respect to such Indemnification Claim until such dispute shall
have been resolved by the dispute resolution mechanism set forth
in Section 10.7 of this Agreement. In connection with any
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Indemnification Claim, the parties shall cooperate with each
other and provide each other with access to relevant books and
records in their possession.
5.4 Set-off. Any right of the Municipality to be indemni-
fied by the District for any Indemnification Claim may be
enforced by the Municipality against any payment to be made by
the Municipality to the District under or pursuant to this
Agreement by means of set-off or reduction if, and only if, the
third party has obtained a judgment, order or settlement against
the Municipality. I
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ARTICLE VI
CLAIMS BETWEEN THE PARTIES
6.1 Mutual Responsibility. After the execution of this
Agreement, the District and the Municipality agree to be respon-
sible for, and shall fully compensate and pay to each other, any
and all damage, liability or loss suffered by the party seeking
recovery under this Article (hereinafter referred to as "Claim")
as a result of, arising out of or relating to:
a. my inaccuracy in or breach of any representation,
warranty, covenant or agreement made by the District or the
Municipality, respectively, in this Agreement; and
b. Any failure of the District or the Municipality,
respectively, to perform or observe any term, provision or cove-
nant of this Agreement. a 6.2 Procedure for Claims by District or Municipality. In
the event that the District or the Municipality shall seek recov-
ery hereunder from the other with respect to any Claim, the party
seeking recovery shall give prompt written notice of the Claim,
stating the nature and basis of said Claim and the amount thereof
to the extent known. Within thirty (30) days after receipt of
such notice, the other party shall either pay the amount of such
Claim or set forth in writing any dispute with respect to such
Claim. If such party shall dispute such Claim, no amounts shall
be payable with respect to such Claim until a judgment shall have
been rendered by a court of competent jurisdiction, a final
arbitration award shall have been issued, or a decision shall
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have been rendered by the Wisconsin Public Service Commission
("PSC"). Any Claim of either party may be enforced by the party
seeking recovery from the other party by means of set-off or
reduction if, and only if, a judgment shall have been rendered by
a court of competent jurisdiction, a final arbitration award
shall have been issued or a decision shall have been rendered by
the PSC.
0
6.3 Amount of Claim. The parties shall not be permitted to
recover from each other under this Article and shall have no
liability hereunder for any Claim unless the aggregate amount of
such Claim in any five (5) calendar year period exceeds $50,000
(annually adjusted by Consumer Price Index - Urban for the
Milwaukee Metropolitan area), in which case the party required to
make payment will be liable for all such Claims in excess of
550,000 from the first dollar. This 550,000 limitation shall not
apply to any Claim arising out of fraud or misrepresentation of a
party.
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ARTICLE VI1
SURVIVAL
All representations, warranties, agreements and covenants
contained in this Agreement, shall survive (and not be affected
in any respect by) the Closing of this transaction and any
reorganization of either party, for the life of this Agreement.
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ARTICLE VI11
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE MUNICIPALITY
The obligations of the Municipality to effect the trans-
actions contemplated under this Agreement shall be subject to the
following express conditions precedent:
8.1 Litigation. The District shall not initiate any appeal
and shall waive all rights to appeal the jury verdict and deci-
sion of the Court, the Order for Judgment dated February 15, 1990
and the Judgment entered in the Circuit Court in and for Waukesha
County, Wisconsin, in Case No. 83-01-296 on March 6, 1990 and
waives any and all rights to appeal any and all orders, decisions
or judgments heretofore rendered or entered in this action at any
time during the litigation proceedings. The District will
further withdraw or terminate any and all petitions before the
PSC involving the Affected Municipalities and request that the
PSC and other pending Petitioners withdraw or terminate their
petitions involving the Affected Municipalities or the District‘s
capital cost recovery method.
8.2 Deliveries by the District at Closinq. At Closing, the
District shall deliver to the Municipality the following docu-
ments, each having been properly executed and dated as of the
Closing Date:
a. A certificate from the Commission’s Secretary
setting forth resolutions adopted by the Commission, authorizing
the execution, delivery and performance of this Agreement and all
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.I
agreements relating hereto and all other actions necessary OK
advisable for the consummation of the transactions contemplated
hereby.
b. A certificate of the District, dated as of the
Closing Date, warranting to the Municipality that the representa-
tions and warranties made by the District in this Agreement are
true and correct as of the Closing Date.
c. A certificate of the District, dated as of the
Closing, representing and warranting to the Municipality that the
District has performed and complied with all of its obligations
under this Agreement prior to or on the Closing Date.
d. A copy of a letter, on District letterhead, to the
court of competent jurisdiction, waiving the District's rights to
appeal any and all orders, decisions and judgments entered into
the case styled City of Brookfield v. Milwaukee Metropolitan
Sewerage District, Case No. 83-(3-296.
e. The written opinion letter of the District's coun-
sel, dated as of the Closing Date, addressed to the Municipality
as set forth in Exhibit 7.
8.3 Approval of Tax Exempt Financing. The Municipality
shall have obtained, within six (6) months from the execution of
this Agreement, the necessary financing through municipal bonds
or notes, revenue bonds, loans from the State of Wisconsin
(including but not limited to the Clean Water Fund) or any other
method or means of tax-exempt financing. The Municipality's
inability to obtain tax-exempt financing from any of the above
sources within six (6) months from the execution of this
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Agreement shall terminate this Agreement and all the parties'
obligations under this Agreement shall thereupon cease and become
null and void.
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ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE DISTRICT
The obligations of the District to effect the transactions
contemplated in this Agreement shall be subject to the following
express conditions precedent:
9.1 Deliveries by the Municipality at Closing. The
Municipality shall have delivered to the District, in addition to
the payment required pursuant to Section 2.2. of this Agreement,
the following documents, each having been properly executed and
dated as of the Closing Date:
a. A certificate executed by the Clerk of the
Municipality setting forth the resolutions adopted by its (Village
Board/Common Council) authorizing the execution, delivery and
performance and of this Agreement and all agreements relating
thereto and all other action necessary or advisable for the con-
summation of transactions contemplated hereby.
b. A certificate of the Municipality, dated the
Closing Date, warranting to the District that the representations
and warranties made by the Municipality in this Agreement are
true and correct as of the Closing Date.
c. The written opinion letters dated as of the Closing
Date of Mulcahy & Wherry. S.C., and the Municipality's counsel,
addressed to the District and in respective forms in Exhibit 6.
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..
* a'
9.2 Ratification. The District and the (Village Board/
Common Council) of the Municipality shall have taken the
necessary action to duly authorize and approve this Agreement by
midnight, April 12, 1990.
I
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h
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ARTICLE X
FUTURE DISTRICT AND MUNICIPALITY RELATIONSHIP
10.1 Joining the District. The Municipality hereby waives
and relinquishes any and all rights it may have pursuant to
566.888, Wis. Stats., to become a municipality within the
District.
10.2 District Rules and Regulations. The Municipality agrees
to comply with the District's rules and regulations. The
District agrees not to enforce against the Municipality any rules
or regulations that violate the specific terms of this Agreement.
The District will not enforce rules and regulations against the
Municipality in an arbitrary manner.
It is understood that District rules and regulations
required by federal or state law, but in conflict with this
Agreement, will be enforced and will not constitute a violation
of this Agreement.
10.3 Option to Form Entity of Municipalities. The Municipality
shall have the right to form an organization under 566.30, wis.
Stats., with other Affected Municipalities for the purpose of
implementing and representing the Affected Municipalities' rights
and interests under this Agreement.
10.4 Service Area Boundaries.
a. The Municipality shall have the right to use its
Capacity Allocation only within its service area boundary.
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b. The service area boundary shall be the boundary
described in Exhibit 3, unless modified pursuant to
Section 10.4.~. herein.
c. To revise the Municipality's service area boundary,
the Municipality shall apply to the District, on District-
provided forms or in any other manner mutually agreed to by the
parties, for approval of the proposed revision. The District
shall provide in a timely manner all information reasonably
requested by the Municipality to enable it to complete such
application. The District shall have ninety (90) days after
receipt of the application to review and approve or reject it in
writing. If the District rejects the application, the written
rejection will indicate the reasons for rejection and the way, if
any, in which the proposed revision must be changed for approval.
In the event that the District's approval or rejection has not
been made within such 90-day period, the proposed revision will
be deemed to have been approved.
The District shall approve the revision if the
application contains:
(1) All information reasonably requested by the
District concerning the proposed revision: and
(2) Information demonstrating that the proposed
revision of the service area boundary is:
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(a) either (i) immediately contiguous to, or
(ii) contains not only the parcel seeking service but also all
land between the parcel and the existing service area boundary;
and
(b) limited to the actual area to be serviced
by a sewer extension currently being applied for; and
(c) inside the District's ultimate service
area as described in Exhibit 3;
d. In the case of Section 10.4.c.(2)(a), above:
(1) the boundaries of the addition shall be deter-
mined, unless mutually agreed to by the parties, by drawing two
lines perpendicular to the existing service area boundary line
and then drawing a third line that is perpendicular to and con-
nects the first two lines (so as to include, in the case of
Section 10.4.c.(2)(a)(ii) above, all of the area of the parcel
seeking service); and
(2) a neighborhood plan for the additional area
shall be developed and the resulting development shall immedi-
ately be charged against the Municipality's remaining Capacit
Allocation, provided that, in the case of Section 10.4.c.(2)(
above, the area between the parcel seeking service and the
existing service area boundary line shall have not less than
ERUs per acre and provided further that when plans are submitted
in the future for actual development the Capacity Allocation
shall be adjusted to reflect actual service;
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e. If the application for revision of Municipality's
service area boundary is approved, the Municipality shall then
provide the District with a metes-and-bounds description of the
revised service area boundary and documentation of the revision
on a mutually agreed map. The Municipality shall have access to
such approved revised service area boundary on the fifteenth
(15th) day following the District's receipt of the map.
This Agreement will be deemed amended by the
replacement of the then current service area boundary described
in Exhibit 3 by the addition or subtraction of the revised ser-
vice area boundary contained in the Municipality's approved
application after receipt by the District of the map.
f. The District's ultimate service area boundary
defined in Exhibit 3 may not be changed without the prior
written approval of the District and the Municipality.
g. The District and Affected Municipalities agree to
submit the map of the service area, attached hereto as Exhibit 3,
agreed to on March 6, 1990 and approved in writing on March 9,
1990 by the negotiating teams of the District and the Affected
Municipalities, to Kurt Bauer, Executive Director, SE'WRPC, for
him to translate said map into a larger scale map for inclusion
in the contract. Within six (6) months following execution of
this Agreement by both parties, the Affected Municipalities shall
submit to the District for its review and approval a legal
description of the sewer service area prepared by a registered
land surveyor.
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I
10.5 Autonomy. The parties hereto recognize that they have
certain inherent rights of local automony and control granted
under the constitution and statutes of the State of Wisconsin.
10.6 Post-Ratification Leqislative and Litigation Activities.
The Municipality and the District agree that upon ratification,
they will mutually and singly do the following:
a. Refrain from causing to introduce or advance any
legislation or litigation to abrogate this Agreement;
b. Oppose any pending legislation that would abrogate
or substantially adversely affect any material provision in this
Agreement;
c. Oppose any litigation seeking to abrogate, delay,
impair, or in any other manner interfere with the successful
closing of this Agreement; and
d. Meet with the leadership of the State Senate and
Assembly and with the Governor to urge their restraint from
Introducing or advancing any legislation, the purpose of which is
to abrogate or substantially adversely affect any material provi-
sion hereof and to explain this Agreement and the new spirit of
cooperation upon which it is based.
10.7 Dispute Resolution.
a. Discussion Prior to Dispute Resolution. At least
thirty (30) days prior to initiating dispute resolution to enforce
this Agreement, the party contemplating such dispute resolution
shall so notify in writing the other party and request a meeting
to discuss and resolve the matter in contention. The party
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1 receiving such notification shall make itself available at
reasonable times and places for such discussions and attempted
resolution. Nothing in this Section shall be construed as
requiring either party to revise its position or make any con-
cession. I
b. Public Service Commission. Any disputes arising
out of Section 10.8 of this Agreement are within the jurisdiction
of the PSC and it is expressly agreed that such disputes shall be
adjudicated with the PSC pursuant to state law.
Any amount ordered refunded to the Municipality by
the PSC, or as affirmed or modified on appeal, shall be due the
Municipality together with a refund interest charge equal to 115%
of the current rate for funds invested in the State of Wisconsin
Local Government Investment Pool, or successor pool thereof per
month from the date the original invoice was due and owing.
Any amounts due the District resulting from a PSC
decision, or as affirmed or modified on appeal, shall be due the
District together with a late payment rate equal to 110% of the
rate for funds invested in the State of Wisconsin Local Government
Investment Pool or successor pool thereof per month from the date
the original invoice was due and owing.
c. Arbitration. Arbitration shall be the dispute
mechanism for any unresolved dispute arising out of, resulting
from or relating to the following Sections of this Agreement:
3.2; 3.4; 3.5; 3.6; 3.7; 3.8; 3.9; 3.10; 3.11; 3.12; 4.1; 4.2;
4.3; 4.4.b. & c.; 4.5; 10.3; 10.4; 10.6; 11.2 and 11.8.
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Either party may request arbitration by notifying
the other party in writing. The written notice shall contain an
explanation of the nature and extent of the dispute and include a
listing of the areas of the agreement which have been violated.
If within thirty (30) days of the written request for arbitration
by either party this dispute has not been resolved, the dispute
may be submitted to arbitration upon the application of one of
the parties, which shall commence within thirty (30) days after
submission.
The arbitration process shall be determined by a
three (3) person arbitration panel. The panel will be selected
from a list provided by the Center for Public Resources, Inc.
("CPR") by the following process: CPR shall submit a list of
seven (7) proposed arbitrators. The party seeking the arbitra-
tion shall strike one (1); the other party shall then strike
one (1); the parties will then alternate the strikes until
three (3) proposed arbitrators remain; the remaining three (3)
arbitrators shall be the panel. Prior to the striking of pro-
posed arbitrators, the parties shall prepare an agreed statement
identifying the parties and any significant witnesses. This
statement will be submitted to all seven (7) proposed arbitrators
to determine whether they suffer any apparent appearance of bias
in favor of or against either party. Within fifteen (15) days of
notification of their selection to the three (3) arbitrators, the
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arbitration proceeding shall be commenced; provided however, the
parties may mutually agree to extend the time for commencing the
proceedings.
The written award of the arbitration panel shall
require a minimum of two votes and the award shall be limited to
interpreting this Agreement. The arbitration panel shall not add
to, delete from or modify the expressed terms of this Agreement.
The award shall be enforceable in the courts of the State of
Wisconsin.
The party that does not prevail in the arbitration
shall pay the cost of the arbitration including the fees of the
arbitrators. The parties will pay their own attorneys' fees,
expert witness fees and out of pocket expenses. Other than is
provided herein, the arbitration process shall be governed by the
rules of the CPR.
d. Litigation. All disputes under this Agreement not
controlled by Sections 10.7.b. or c. of this Agreement, including
but not limited to, any disputes concerning the District's Rules,
shall be decided by courts of competent jurisdiction. It is the
intent of the parties that unless a dispute is set forth in
Section 10.7.c., it shall not be decided by arbitration. The
question of whether a dispute is subject to the arbitration pro-
cess of this Agreement shall be decided by courts of competent
jurisdiction. Notice of objections to arbitrability shall be
given prior to the arbitration hearing.
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e. Set-off. Any award decided by the dispute resolu-
tion mechanism in favor of the Municipality may be enforced by
the Municipality against any payment to be made by the
Municipality to the District under or pursuant to this Agreement
by means of set-off or reduction.
f. Specific Performance. Without limiting the remedies
available to either party, the Municipality and the District
agree that the right to Capacity Allocation is unique. There is
no adequate remedy at law for the damages that the Municipality
may sustain for failure of the District to provide the Capacity
Allocation contemplated by this Agreement and, accordingly, the
Municipality shall be entitled, at its option, to the remedy of
the specific performance to force the delivery of the Capacity
Allocation by the District to the Municipality pursuant to this
Agreement. Either party shall also be entitled, at its option,
to the remedy of specific performance to enforce any of the other
provisions of this Agreement.
10.8 Operation and Maintenance Charges. Operation and main-
tenance charges shall be assessed and collected uniformly
throughout the District's service area pursuant to Chapter 17 of
the District's Rules and Regulations and any amendments thereto.
Copies of the annual Operation and Maintenance Budget and Annual
Report shall be sent to the Municipality within seven (7) days
after receipt thereof by the Commission.
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ARTICLE XI
MISCELLANEOUS
11.1 Entire Aqreement: Amendment. This Agreement and the
documents referred to herein and to be delivered pursuant hereto
constitute the entire Agreement between the parties pertaining to
the subject matter therein, and supersede all prior and contem-
poraneous agreements, understandings, associations and discus-
sions of the parties, whether oral or written, and there are no
warranties, representations or other agreements between the
parties in connection with the subject matter hereof, except as
specifically set forth herein. No amendment, supplement, modifi-
cation, waiver or termination of this Agreement shall be binding
unless executed in writing and approved by the parties to be
bound thereby. NO waiver of any of the provisions of this
Agreement shall be deemed or constitute a waiver of any other
provision of this Agreement, whether or not similar, nor shall
such waiver constitute a continuing waiver unless otherwise
expressly provided.
0
11.2 Assignment. This Agreement shall not be assigned by
either party without the prior written consent of the other
party. Subject to the terms of this Agreement, the Municipality
shall have the right to assign all or any portion of its rights
to the Capacity Allocation under Section 3.2 of this Agreement
and to assign all or any portion of the obligations for future
capital costs under this Agreement, provided that:
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..
a. The assignee shall be an Affected Municipality or
0 an entity composed solely of one or more Affected Municipalities;
b. The assignor Municipality shall remain liable to
the District in the event of default by the assignee Municipality
(or any successor assignee municipality) on any of its obliga-
tions for future capital costs;
c. The Municipality shall give the District written
notification of such proposed assignment; and
d. If the District objects in writing within
thirty (30) days to the proposed assignment as a'violation of
this Agreement, the assignment shall not take effect until after
the dispute has been resolved pursuant to the dispute resolution
mechanism.
11.3 Notices. All communications or notices required or per-
@ mitted by this Agreement shall be in writing and shall be deemed
to have been given at the earlier of the date when actually
delivered to an individual party or to an officer of the corpor-
ate party or when deposited in the United States mail, postage
prepaid, and addressed as follows, unless and until either of
such parties notifies the other in accordance with this Section
of a change of address:
If to the District:
Milwaukee Metropolitan Sewerage District
260 West Seeboth Street
Milwaukee, WI 53204
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If to the Municipality:
City of Muskego
P.O. Box 25
W182 33200 Racine Avenue
Muskego, WI
Attention: Mayor
With a copy to the legal counsel of the Municipality's
choice.
11.4 Counterparts; Headings. This Agreement may be executed
in several counterparts, each of which shall be deemed an origi-
nal, but such counterparts shall together constitute but one and
the same agreement. The table of contents and article and sec-
tion headings in this Agreement are inserted for convenience of
reference only and shall not constitute a part hereof.
11.5 Severability. Except for Articles I1 and 111, if any
provision, clause, or part of this Agreement, or the application
thereof under certain circumstances, is held invalid, the
remainder of this Agreement, or the application of such provi-
sion, clause or part under other circumstances, shall not be
affected thereby. If Articles I1 or I11 or any substantial
portion thereof, is held invalid, this Agreement shall be null
and void.
11.6 No Reliance. Except for any assignees permitted by
Section 11.2 of this Agreement:
a. NO third party is entitled to rely on any of the
representations, warranties and agreements of the Municipality
and the District contained in this Agreement.
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b. The Municipality and the District assume no
liability to any third party because of any reliance on any
representations, warranties and agreements of the District and
the Municipality contained in this Agreement.
11.7 Non-Ratification. In the event any Municipality fails
to approve and ratify this Agreement, Sections 2.2, 3.1 and 3.11
shall be modified as follows:
a. The total amount of Contribution pursuant to
Section 2.2 of this Agreement for those Municipalities that
approved and ratified this Agreement shall be reduced by an
amount calculated by multiplying the Capacity Allocation shown on
Exhibit 4 for the non-ratifying Municipalities times $5.40 per
gallon per day of base flow capacity. The reallocation of that
reduced amount shall be agreed to among the ratifying
Municipalities and submitted to the District prior to the Closing
Date. The reallocated Contribution shall be set forth in
Exhibit 2A which shall be substituted for Exhibit 2.
b. The total amounts of Capacity Allocation pursuant
to Section 3.1 of this Agreement shall be reduced by the amounts
allocated to the non-ratifying Municipalities on Exhibit 4 and
the remaining Capacity Allocation shall be reallocated to the
ratifying Municipalities. The reallocation of that reduced
Capacity Allocation shall be agreed to among the ratifying
Municipalities and submitted to the District prior to the Closing
Date. The reallocated Capacity Allocations shall be set forth in
Exhibit 2A which shall be substituted for Exhibit 2.
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'.
.
c. The base percentages of future capital costs set
forth in Exhibit 9 for those Municipalities that approved and
ratified this Agreement shall be recalculated by dividing each
Municipalities' share of capacity as shown in Exhibit 2A by the
total amount of Capacity Allocation for the ratifying
Municipalities on that Exhibit. This percentage shall also be
used to determine a Municipality's share of subsidized interest
loans and future costs per Section 3.11.
d. In the event one .or more of the Municipalities does
not ratify this Agreement, the peak flow limitations set forth
in Exhibit 5 shall be applied to the ratifying Municipalities
pursuant to Section 3.14 at the boundary of the ratifying com-
munity.
11.8 Refund of Capital Contribution. If for any reason legal
proceedings are commenced by a third party, and Articles I1 or
I11 of this Agreement are declared to be null and void by a final
court order, and the District thereafter refuses to give the
Municipality further capacity utilization within the
Municipality's Capacity Allocation provided for in this Agreement
as a result thereof, then the District will refund to the
Municipality the amount of the pro rata share of the
Municipality's capital contribution represented by the differen-
tial between daily base flow utilized by the Municipality and the
daily base flow capacity within the Municipality's Capacity
Allocation (the "daily base flow differential"). Daily base flow
shall be calculated at 310 mg/l of BOD and 370 mg/l of TSS for
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I. *
all Capacity Allocation and reallocation computations. The
amount of the refund shall be determined by multiplying the daily
base flow differential times $5.40 per gallon per day of base
flow capacity, plus a p,roportionate share of subsidized loan
payments, cost overruns and non-WPAP cost that has been paid to
date. In determining the daily base flow differential, the
District will treat reallocation of daily base flow to other
Municipalities as having been utilized by the Municipality. The
District will not be liable for any interest on any refunded
amount.
11.9 Closing. The Closing of the transactions pursuant to
this Agreement shall take place at the offices of the State of
Wisconsin Department of Administration, Milwaukee, Wisconsin.
11.10 Governing Law. This Agreement shall be construed and
interpreted according to the laws of the State of Wisconsin.
IN WITNESS WHEREOF, the parties have caused this
Intergovernmental Cooperation Agreement to be duly executed as of
the day and year first above written.
MUNICIPALITY DISTRICT
By :
Mayor
By:
WITNESS : WITNESS :
-69-
COMMUNITY
Brookfield
Butler
Elm Grove
Germantown
Menomonee Falls
Mequon
Muskego
New Berlin
Thiensville
TOTAL
EXHIBIT 4
DISTRICT CAPACITY ALLOCATION
BASE FLOW
AVERAGE
BOD
(mgd ) (lbs/day)
0. 3,74
2.070
0.741
2.259
5.543
3.440
1.380
5.848
0.239
21.894
5,352
967
1,916
5,840
14,331
8.894
15,119
3,568
618
56,605
j lbs/day)
1,154
6,388
2.287
6,971
10,615
17,105
18,046
4,258
TSS
738
67,562
c .
Exhibit 5
Affected Municipalities Peak Flow Ttations
COmmuLlitY
Bmktield
Butler
Elm Grove
Germantown
Menornonee Falls
Mequon
Muskego
MMSD
Gauge No.
26-c
26-A
26-F
26-D
MS-03-06,
MS-03-11
26-E
26B
Total
U7
MS-03-l3
Total
MS-03-06
25-B
Total
MS03-10**
Total
MS-03-07
MS-03-11
Total
MS-04-09
MS-04-08***
28-D
2ac
Total
MSO2-11**
Total
Includes Br Indus.
** Facility Plan Flows
***Matches Corrected MMSD Table
Peak Hour
Flow MGD
258
0.23
0.78
4.22
8.84
1.80
0.09
0.01
1855
036
134
0.11
1.81
1595
0.15
16.10
a37
837
22.23
1.12
2335
15.21
7.08
0.47
0.56
2332
U31
1231
Peak Day
Flow MGD
1.93
0.14
0.49
5.86
122
0.06
0.01
12.89
029
1.07
0.09
1.45
1038
0.10
10.48
5.90
590
1328
0.61
13.89
9.74
422
030
034
14.60
820
3.18
a20
FLOW 3/16/90
P
Exhibit 5
Affected MuniciDalities Peak How r,imitations I
"SD
community Gauge No.
New Berlin
Thiensville
DC43-06
274
MS-02-10
27-B
27-D
"2-11
MSM-13
Total
"08
Total
Totals
Peak Hour
Flow MGD
1136
0.86
1.13
0.76
3.88
0.16
0.67
18.82
4.79
4.79
127.42
Peak Day
Flow MGD
7.21
057
0.72
0.48
234
0.12
034
11.78
321
3.21
82.40
Connection Point Peak Flow Limitations
"SD
Gauge No.
26-C
26-A
26-F
26-D
MS-03-06
MS-03-11
26-E
26-B
127
MS03-13
Butler
25-B
MSQT-10
"3-07
MSO4-09
"4-08
28-D
MS-02-11
Dc-"06
27-B
274
27-D
2ac
"2-10
"2-13
Totals
PmlrHour Flow MGD
258
0.23
0.78
422
24.79
292
0.09
0.01
036
124
0.11
0.15
837
2233
1521
11.87
0.47
OS6
12.47
1136
0.86
1.U
0.76
3.88
0.67
127.42
193
0.14
0.49
3.18
16.24
1.83
0.06
0.01
029
1.07
0.09
0.10
590
l328
9.74
7.43
030
034
832
721
0.57
0.72
0.48
234
034
82.40
FLOW 3/15/90
EXHIBIT 6
[Mulcahy h Wherry, S.C. Letterhead]
Q , 1990
Milwaukee Metropolitan Sewerage District
260 East Seeboth Street
Milwaukee, Wisconsin 53203
Gentlemen:
We have acted as counsel for the communities of New Berlin, Elm
Grove, Srookfield, Germantown, Menomonee Falls, Mequon,
Thiensville and Butler (collectively the "Municipality"), in
connection with the execution and delivery of the
Intergovernmental Cooperation Agreement by and between the
MuniciDalitY and the Milwaukee Metrouolitan Sewerage District
(the "District"), dated Y990 (the
"Agreement") . Incidental thereto we have examined such
render this opinion. All of the terms not otherwise defined
proceedings, documents and records as we deemed necessary to
herein have the meanings assigned to them in the Agreement.
Based upon the foregoing, we are pleased to render to you our
opinion, as required by Section 9.1 of the Agreement, as
follows :
1. The Municipality is a municipal corporation duly
organized, validly existing in good standing under the laws of
the State of Wisconsin and has full corporate power to receive
the Capacity Allocation from the District pursuant to this
Agreement.
2. The execution, delivery and performance of this
Agreement and other documents and instruments required by the
Municipality to carry out the Closing of this Agreement are
within the corporate powers of the Municipality and, as of the
Closing Date, have been duly authorized and approved by its
(Village Board/Common Council). Subject to Section 8.3 of the
Agreement, this Agreement and other documents and instruments
hereby required will be, when executed and delivered by the
Municipality, valid and binding obligations of the
Municipality, enforceable against the Municipality in
accordance with their terms, except as limited by bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors' rights and except to the extend that general
principals of equity might affect the specific enforcement of
the Agreement.
..
Milwaukee Metropolitan Sewerage District
Page Two
, 1990
3. The execution, delivery and performance of this
Agreement and the consummation of the transactions intended
hereby will not on the Closing Date conflict with, violate,
result in a breach of or constitute a default under any law,
regulation, judgment, order or decree or any contract or
agreement to which the Municipality is a party or by which it
is bound.
The opinions set forth above are predicated upon and subject to
the following additional exceptions and limitations:
Wisconsin. The opinions set forth herein are limited to the
1. We are licensed to practice law only in the State of
laws of the United States of America and to the laws of the
State of Wisconsin. We have not made any review of, and we
jurisdiction.
express no opinion as to, the laws and regulations of any other
expressly set forth herein and no opinion is implied or may be
2. The opinions herein are limited to the matters
obligation to update this letter for events occurring after the
inferred beyond the matters expressly stated. We disclaim any
date of this letter, or as a result of knowledge acquired by us
after that date, including changes in any of the statutory or
decisional law after the date of this letter. 0
3. This opinion is being delivered to you only for your
use in connection with the Agreement, and may not be relied
upon by any person other than you. This opinion may not be
quoted or used in whole or in part for any other purpose and
delivered to any other person without our prior written
it, and any copies, abstracts or portions thereof may not be
consent.
Very truly yours,
"LCAHY h WHERRY, S.C.
0
EXHIBIT 6
, 1990
Milwaukee Metropolitan Sewerage District
260 East Seeboth Street
Milwaukee, Wisconsin 53203
Gentlemen:
We have acted as counsel for the community of
with the execution and delivery of the Intergovernmental
(the "Municipality") , in connection
Cooperation Agreement by and between the Municipality and the
Milwaukee Metropolitan Sewerage District (the "District"),
dated , 1990 (the "Agreement"). Incidental
thereto we have examined such proceedings, documents and
records as we deemed necessary to render this opinion. All of
the terms not otherwise defined herein have the meanings
assigned to them in the Agreement.
Based upon the foregoing, we are pleased to render to you our
opinion, as required by Section 9.1 of the Agreement, as
follows :
1. The Municipality is a municipal corporation duly
organized, validly existing in good standing under the laws of
the Capacity Allocation from the District pursuant to this
the State of Wisconsin and has full corporate power to receive
Agreement.
Agreement and other documents and instruments required by the
2. The execution, delivery and performance of this
Municipality to carry out the Closing of this Agreement are
within the corporate powers of the Municipality and, as of the
Closing Date, have been duly authorized and approved by its
(Village Board/Common Council). Subject to Section 8.3 of the
Agreement, this Agreement and other documents and instruments
Municipality, valid and binding obligations of the
hereby required will be, when executed and delivered by the
Municipality, enforceable against the Municipality in
accordance with their terms, except as limited by bankruptcy,
creditors' rights and except to the extend that general
insolvency or similar laws affecting the enforcement of
principals of equity might affect the specific enforcement of
the Agreement.
I ,.
0
0
0
Milwaukee Metropolitan Sewerage District
Page Two
, 1990
3. The execution, delivery and performance of this
Agreement and the consummation of the transactions intended
hereby will not on the Closing Date conflict with, violate,
result in a breach of or constitute a default under any law,
regulation, judgment, order or decree or any contract or
agreement to which the Municipality is a party or by which it
is bound.
The opinions set forth above are predicated upon and subject to
the following additional exceptions and limitations:
1. We are licensed to practice law only in the State of
Wisconsin. The opinions set forth herein are limited to the
laws of the United States of America and to the laws of the
State of Wisconsin. We have not made any review of, and we
jurisdiction.
express no opinion as to, the laws and regulations of any other
2. The opinions herein are limited to the matters
expressly set forth herein and no opinion is implied or may be
obligation to update this letter for events occurring after the
inferred beyond the matters expressly stated. We disclaim any
after that date, including changes in any of the statutory or
date of this letter, or as a result of knowledge acquired by us
decisional law after the date of this letter.
3. This opinion is being delivered to you only for your
upon by any person other than you. This opinion may not be
use in connection with the Agreement, and may not be relied
quoted or used in whole or in part for any other purpose and
it, and any copies, abstracts or portions thereof may not be
delivered to any other person without our prior written
consent.
Very truly yours,
EXHIBIT 7
e , 1990
FLOW Communities
New Berlin
ELQ Grove
Brookfield
Germantown
Menomonee Falls
Mequon
Thiensville
Butler
Gentlemen:
We have acted as counsel for the Milwaukee Metropolitan
Sewerage District, a municipal corporation organized and
existing under the laws of the State of Wisconsin (the
"District"), in connection with the execution and delivery of
the Intergovernmental Cooperation Agreement by and between New
Mequon, Thiensville and Butler and the District dated as of Berlin, Elm Grove, Brookfield, Germantown, Menomonee Falls,
, 1990 (the "Agreement"). Incidental thereto we
have examined such proceedings, documents and records as we
deemed necessary to render this opinion. All of the terms not
otherwise defined herein have the meanings assigned to them in
the Agreement.
Based upon the foregoing, we are pleased to render to you our
opinion, as required by Section 8.2 of the Agreement, as
follows :
0
in good standing under the laws of the State of Wisconsin and
1. The District is duly organized, validly existing and
has the full corporate power and authority to carry on its
business and to allocate the Capacity Allocation to
Municipality pursuant to this Agreement.
2. The execution, delivery and performance of this
Agreement and other documents and instruments required by the
District to carry out the Closing of this Agreement are within
the corporate powers of the District and, as of the Closing
Date, have been duly authorized by all necessary corporate
action by the Commission. This Agreement and other documents
and instruments hereby required will be, when executed and
delivered by the District, valid and binding obligations of the
District, enforceable against the District in accordance with
their terms, except as limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights and
except to the extent that general principals of equity might
affect the specific enforcement of the Agreement. 0
FLOW Communities
Page Two
, 1990
and the consummation of the transactions intended hereby will 3. The execution, delivery and performance of this Agreement
not on the Closing Date conflict with, violate, result in a
breach of or constitute a default under any law, regulation,
judgment, order or decree or any contract or agreement to which
the District is a party or by which it is bound.
The opinions set fort,h above are predicatedupon and subject to
the following additional exceptions and limitations:
1. We are licensed to practice law only in the State of
Wisconsin. The opinions set forth herein are limited to the
laws of the United States of America and to the laws of the
express no opinion as to, the laws and regulations of any other
State of Wisconsin. We have not made any review of, and we
jurisdiction.
2. The opinions herein are limited to the matters
expressly set forth herein and no opinion is implied or may be
obligation to update this letter for events occurring after the
inferred beyond the matters expressly stated. We disclaim any
date of this letter, or as a result of knowledge acquired by us
after that date, including changes in any of the statutory or
decisional law after the date of this letter. 0
use in connection with the Agreement, and may not be relied
3. This opinion is being delivered to you only for your
upon by any person other than you. This opinion may not be
quoted or used in whole or in part for any other purpose and
it, and any copies, abstracts or portions thereof may not be
delivered to any other person without our prior written
consent.
Very truly yours,
MILWAUKEE METROPOLITAN
SEWERAGE DISTRICT
EXHIBIT 8
DISTRICT COMPUTATION OF INTEREST ON COSTS ADVANCED
BY DISTRICT TO MUNICIPALITY (SECTION 3.11-d.1
WPAP COST OVER RUNS
Capital costs for WPAP incurred pursuant to
Less :
Section 3.11.a.(1)(b)
Earned grants and other contributions (3.11.a.(l)(C))
Debt financing on the above costs (3.11.a.(3))
Net WPAP cost over runs
NON-WPAP COSTS
Capital costs for non-WPAP incurred pursuant to
Less :
Section 3.11.a.(2)(a)
Earned grants and other contributions (3.11.a.(2)(b))
Debt financing on the above costs (3.11.a.(3))
Net non-WPAP costs
PRINCIPAL AND INTEREST PAYMENTS - NEW ISSUES
Principal and interest incurred pursuant to
Section 3.11.a.(5)(a) and (b).
NET COSTS ADVANCED BY DISTRICT
AVERAGE NET COSTS ADVANCED (NET COSTS ABOVE DIVIDED BY 2)
Average annual interest rate paid in the cost incurred
year for funds invested in the State of Wisconsin
Local Government Investment Pool or successor
thereof
Subtotal
Pro-ration period (represents 6 months of the year
incurred plus 4 months to the payment date)
TOTAL AMOUNT DUE TO DISTRICT
INDIVIDUAL MUNICIPALITY'S SHARE PER EXHIBIT 9
AMOUNT OWED BY MUNICIPALITY
$ xxx
xxx
- xxx
$ xxx -
xxx
(times) i%
xxx
(times) - 10/12
$ xxx
(times) i%
$ -
e
EXHIBIT 9
PERCENTAGE OF FUTURE CAPITAL COSTS
Annual percentage used to invoice Municipality's share of costs
per 3.10.a.. 3.10.b. and 3.11.c.(3):
BUDGET YEAR
90
ANNUAL PERCENTAGE
11.50%
91 11.50
92 11.73
93 11.96
94 12.20
95 12.45
96 12.70
97 12.95
98 13.21
99 13.41
2000 13.74
2001 14.02
2002 14.30
2003 14.58
2004 14.88
2005 15.17
2006 and beyond To be negotiated per Section 3.10.d.
of the Agreement
be invoiced to each Municipality per the above percentages and
Except for Section 11.7 of this Agreement, the amount of costs to
the amounts per Exhibit 8 shall be based on the percentages
below:
Brookfield % Menomonee Falls %
Butler % Mequon %
Elm Grove % Muskego %
Germantown % New Berlin %
Thiensville %
i
EXHIBIT 10
REFUND PROVISION COMPUTATION - SECTION 3.12.b.
Calculation of refund or payment per
Section 3.12.b. of this Agreement:
A. The amount of Net local costs per Exhibit 1
of $1,162,201,000 less actual net local costs
(Do not enter number less than zero) $
Less :
B. The amount of subsidized loans per
Exhibit 1 of $230,940,000 less actual
loans received $
Sum of (A) and (B): $
If the actual amount of subsidized loans per Exhibit 1 is less
positive, the amount due Municipality shall be determined at
than $230,940,000 under B above and the sum of A and B above is
11.5%. 0 If the actual amount of subsidized loans per Exhibit 1 is greater than $230,940,000, and the sum of A and B above is positive, the
amount due Municipality shall be determined at 11.5%.
If the sum of A and B is negative, the amount due District shall
be computed at 11.5%.
The accumulation of loans pursuant to the determination in B
above and provisions of Section 3.12.c. of this Agreement shall
exceeded $1,162,201,000. upon such determination, the calcula-
stop when it has been determined that actual net local costs have
tion of actual loan amounts received shall include the value of
all loans prior to the determination that actual net local costs
have exceeded $1,162,201,000.
. ./ . .. _.
I'
_.I
Exhibit 2
CONTRIBUTION AND CAPACITY ALLOCATION
Column 1 Column 2 Capacity Allocation
Base Flow BOD TSS
Municipality (muday) OWhY) (1Wday) Contribution
Brookfield
Butler
Elm Grove
Gemantown
Menornonee Falls
Mwuon
lm=nsvills
S16,814,682
10.610.062
2226358
mu01 6599
414,104
859.989 22u 1.071
10,033269 mw 6,693
24.075.148 4,073.191 10.531
223W.628 3J8a.m 9,274
7.838855 ~1ss.m 5572
23,038,840
L,ml58
4,279357
383.836
11,064
992
Subtotal
21.893860 56.604 61560 s120.ooo.ooo Total
1,ooO.oa, 258s 3,086 Base Flow Adjustment
m.893860 54,019 64,474 s120,ooo.MX)
: