HomeMy WebLinkAbout6. NEW BUSINESS 6/18/02Mount Prospect Public Works Department
INTEROFFICE MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
VILLAGE MANAGER MICHAEL E. JANONIS
FORESTRY/GROUNDS SUPERINTENDENT
JUNE 7, 2002
TREE RISK MANAGEMENT ASSESSMENT AND PLAN
As detailed below, I am requesting that several issues related to our Tree Risk Management Pro-
gram be addressed at the June 18, 2002 meeting of the Village Board.
Background
In February 2001, the Village Board approved the award of a Tree Risk Management Contract to
Natural Path Forestry Consultants, Inc. of Missoula, Montana. Natural Path was directed to re-
view the Village's past tree risk management activities, analyze existing resources, poll other
communities and recommend an action plan for the future. A grant from the Illinois Department
of Natural Resources was obtained to help pay for this project. Note that our tree risk program,
as it currently exists, was begun in 1994 as the result of an earlier grant. At that time, Natural
Path outlined for the Village Board their recommendations for a multi-year program. The Board
approved the concept at that time and has since budgeted funds annually to carry out the result-
ing risk assessments and tree removals.
Discussion
We recently received Natural Path's final report; an Executive Summary is attached to this
memo. The full report is accessible on the Internet through the following web address:
http://www.mountprospect.org/publicworks/vb/Tree%20Risk~pdf
As you will see in their report, Natural Path is highly complimentary of our tree risk manage-
ment activities, and our forestry program in general. Most of the changes recommended in their
Action Plan can be accomplished fairly easily by Forestry staff with existing resources. How-
ever, two of Natural Path's recommendations do require action by the Village Board. The first is
an ordinance change, and the second is adoption of a Tree Risk Policy Statement.
The proposed ordinance changes would clarify ownership and maintenance responsibilities for
trees growing on or near a property line between public right-of-way and private property. This
issue is explained in detail on pages 5-76 through 5-79 of Natural Path's report. In brief, bound-
ary line trees can be an unrecognized liability to a community because the municipality's respon-
sibility to maintain these trees is frequently overlooked. (This fact became readily apparent in
o Village Manager Michael E. Janonis
Re Tree Risk Management Assessment and Plan
June 7, 2002
Page two
the Maywood tragedy, which recently resulted in a 3.2 million dollar settlement after two
children were killed by a limb that fell from a boundary line tree.)
During this project, Natural Path and Forestry staff consulted with Village Attomeys Buzz Hill
and Lance Malina about this issue. Ultimately, Mr. Malina drafted proposed language, included
as Attachment H in Natural Path's report, to clarify the issue. The language seeks to remove any
ambiguity about who is responsible for boundary line trees, and establishes the Village as sole
owner of such trees unless the abutting property owner takes specific action to prevent this.
Natural Path is recommending that this language be incorporated into Chapter 9 of the Village
Code. Attached to this memo is a proposed ordinance that would accomplish this goal. (Note
that certain other amendments to Chapter 9, Article, 5 were recently approved by the Village
Board, with the passage of Ordinance 5253. Those amendments are not yet reflected in the
current Village Code. However, the attached ordinance does reflect the revisions approved in
Ordinance 5253.)
Also attached to this memo is a proposed Tree Risk Policy Statement. Natural Path, after
conferring with Buzz Hill, is recommending that the Village Board officially adopt this policy.
This policy would then be incorporated into'the Village's Arboricultural Standards Manual.
(Note that technically changes to this Standards Manual do not require Board approval.
However, as explained on page 2-6 of their report, Natural Path believes that official Board
adoption of the policy would protect us in the event of future court cases.)
Recommendation
With your approval, I am recommending the Village Board approve the boundary tree ordinance
and pass a resolution adopting the tree risk policy statement at the June 18, 2002 Board meeting.
Forestry Division staff, along with Natural Path founder Mark Duntemann, will be present to
answer any questions related to this project.
Thank you~
I concur
Glen R. Andlo{, Public Works Director
SC/rd
atiach.
EXECUTIVE SUMMARY
Village of Mount Prospect-Tree Risk Management Plan
Natural Path Forestry Consultants, Inc.
May 22, 2002
In reviewing the Village's tree risk management program, I conclude that the Village has
one of the strongest proactive programs in the country. Its strength can be identified by the
following features:
· A high level of staff training that is consistent in its implementation and has the largest
number of ISA-certified arborists in the metro area outside of Chicago.
· A consistent program of more than two decades conducting regular pruning on all
public trees.
· A pruning program that emphasizes strong structural development early in the life of
the tree by implementing two pruning events while the tree is still young.
· An aggressive removal program.
· A seven-year project to identify and mitigate high-risk trees throughout the Village.
· Daily upkeep of the tree inventory software to keep current data available to staff.
· Professional and peer recognition for an outstanding program.
· Major property damage to cars and structures has been kept to a minimum, and no
fatalities have occurred.
The recommendations within this report focus on tailoring the program to minimize
resource allocation while still providing a high-level risk program. In addition, the
recommendations emphasize the importance of documentation of the program and
increased communication with staff.
Reasonable care with respect to high-risk trees should be defined by each agency according
to its resources. However, defining what is reasonable is not always in the hands of the
municipality or vegetation manager. A municipal entity rarely has an established policy
that defines a reasonable level of care for its agency and, as a result, is subject to the
attorney's definition if litigation occurs.
To further refine their program, I am recommending that the Village implement the
following goals:
Goal 1 - Develop and approve a tree risk management policy statement.
Goal 2 - Establish a tree risk working group.
Goal 3 - Establish a tree risk manual.
Goal 4 - Scale back the current tree risk assessment program.
Goal 5 - Integrate tree monitoring program into the existing tree inventory software.
Goal 6 - Maintain current policy on trees whose trunks are completely on private property.
Goal 7 - Refine current policy on trees whose trunks are considered boundary trees.
Goal 8 - Develop an annual staff tree risk management training session.
Goal 9 - Define a diameter measurement policy on multi-stemmed trees.
Goal 10 - Expand cable inspection policy.
Goal 11 - Refine tree condition assessment.
Goal 12 - Expand parkway tree protection efforts.
Implementation of ail twelve goals outlined above is an important link in forming a
comprehensive tree risk management program for the Village. The goals have established
three basic frameworks for the Village. The first is a greater refinement of an existing
monitoring program. The second is the written documentation of new and established oral
policies. The third and final is the adoption of a tree risk policy statement.
The Village has established a program that is progressive and reasonable for the resources
available. The general health of the urban forest in Mount Prospect improves each year
while the risk of physical harm to the general public has been greatly diminished.
ORDINANCE NO.
AN ORDINANCE AMENDING ARTICLE VII OF CHAPTER 9
OF THE MOUNT PROSPECT VILLAGE CODE
BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE
OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS:
SECTION ONE: That Section 9.705 entitled "Definitions" of Chapter 9 of the Village Code of
Mount Prospect, as amended, is hereby further amended by adding the following:
TRUNK COLUMN: An imaginary column which includes, and is the same diameter as,
the trunk ora tree at its widest point before the Root Collar begins.
SECTION TWO: That Section 9.705 entitled "Definitions" of Chapter 9 of the Village Code of
Mount Prospect, as amended, is hereby further amended by deleting old definitions of the following:
1. BOUNDARY TREE
2. PRIVATE TREE
3. PUBLIC THEE
4. ROOT COLLAR
and inserting new definitions as follows:
BOUNDARY THEE: A tree that has any portion of its trunk colunm located on a property
line between private property and public property or right-of-way.
PRIVATE TREE: A tree that has its trunk colunm located entirely on private property,
along with any Boundary Tree that becomes a Private Tree by agreement of the Village and
private property owner.
PUBLIC TREE: A tree that has its mink colunm located entirely on public property, along
with any boundary tree that becomes, or remains, a Public Tree pursuant to Section 9.707 of
this Code.
ROOT COLLAR: The part of a tree or shrub, usually at or near ground level, where the
roots and Trunk Column meet. The beginning of the Root Collar is usually identifiable as a
marked swelling at the base of the Trunk Column. The Root Collar may also be referred as
the "root flare."
SECTION THREE: That Article VII entitled "Trees and Shrubs" of Chapter 9 of the Village Code
as amended, is hereby further amended by inserting new Section 9.707 as follows, and renumbering
the existing Sections 9.707, 9.708, 9.709, 9.710, 9.711, 9.712, 9.713, 9.714, 9.715, 9.716, 9.717, and
9.718 accordingly:
9.707 POLICY TO TAKE OVER SOLE OWNERSHIP OF BOUNDARY TREES AS
PUBLIC TREES.
Although Boundary Trees generally are, by operation of law, co-owned by the Village and
the private property owner abutting the public property or fight-of-way, it shall be the
Village's policy to take over, wherever possible, sole ownership and control of all Boundary
Trees. Such policy shall be effectuated as follows:
(A) Where the Village plants a tree solely on public property or right-of-way, all
abutting private property owners are hereby put on notice that it is the Village's
intent that all such trees remain the exclusive property of the Village, even
should such tree grow in such a way as to become a Boundaxy Tree.
(B) In all other cases of Boundary Trees discovered by the Village, the
Forestry/Grounds Superintendent shall send notices by certified and first-class
mail to the abutting private property's: (1) current resident; and (2) owner,
according to Village records, which notices shall state that it is the Village's
intention to take over sole ownership and responsibility of said Boundary Tree,
and that the owner has sixty (60) days to object to such intention. If no objection
is made by the private property owner within the 60-day period specified by the
notice, the tree shall be presumed to be the sole property and responsibility of the
Village and entered as such into the Village's tree inventory. If the abutting
property owner objects to the Village's intention in writing within 60 days of
date of the Village's notice, said Boundary Tree shall, unless otherwise agreed to
by the Village and the private property owner, remain the joint property of the
private property owner and the Village as provided by law. As such, the Village
will retain and assert its full rights to prune such tree as relates to the need to
keep public property and right-of-way unobstructed and safe. If the property
owner objects to the Village's intention to take ownership of a Boundary Tree,
the Village may enter an agreement with the private property owner that such
Boundary Tree shall be the sole property and legal responsibility of the private
property owner. Any such Agreement entered into by the Village shall be
recorded with the Cook County Recorder's Office and shall nm with the land.
(C) Nothing contained in this Section of the Village Code is intended to in any way
curtail or limit the Village's rights under Chapter Nine, Article Seven of the
Village Code (Potentially Hazardous Trees and Shrubs).
SECTION FOUR: This Ordinance shall be in full force and effect from and after its passage,
approval and publication in pamphlet form in the manner provided by law.
AYES:
NAYS:
ABSENT:
PASSED and APPROVED this 18th day of June 2002
Gerald L. Farley
Village President
ATTEST:
Velma W. Lowe
Village Clerk
X:FILES/FORESTRYAVORD/2002/B OUND-OKI)INANCE-CHANOE.DOC
Village of Mount Prospect
Tree Risk Policy Statement
The Village of Mount Prospect has an active policy to maintain the
safety of public lands from potentially high-risk trees. The Village
will strive to reduce, in a timely fashion, the potential of harm from
any tree deemed high-risk. When available fiscal and human resources
limit the ability of the Village to remove high-risk trees, priority shall
. be~.placed on trees deemed to carry the highest risk. Overall standards
will be outlined in a tree risk manual. The tree risk manual will be
reviewed by staff.every year. When the risk ora tree is questioned, the
International Society of Arboriculture's twelve-point hazard
evaluation ~ystem will be used in assessing the degree of risk. The
Superintendent of Forestry/Grounds will directly administer this
program and will form the authoritative opinion in all matters
concerning the mitigation measures taken for any tree.
RESOLUTION NO.
A RESOLUTION ADOPTING A TREE RISK MANAGEMENT POLICY STATEMENT
WHEREAS, it is essential that the Village of Mount Prospect maintain the safety of public lands
from potentially high-risk trees; and
WHEREAS, on February 20, 2001, the Village of Mount Prospect approved a Tree Risk
Management Contract for purposes of analyzing resources and prescribing plans for high-risk tree
management and removal; and
WHEREAS, the International Society of Arboriculture has established an evaluation system for use
in assessing the degree of dsk of trees within the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES OF THE
VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS:
SECTION ONE: That the Mayor and Board of Trustees of the Village of Mount Prospect, Cook
County, Illinois, have reviewed the attached Tree Risk Policy Statement for the Village of Mount
Prospect and have determined that such policy be established to govern the management and
removal of potentially high-risk trees from public lands.
SECTION TWO: That this Resolution shall be in full force and effect from and after its passage
and approval in the manner provided by law.
AYES:
NAYS:
ABSENT:
PASSEDandAPPROVEDthis
day of ,2002.
ATTEST:
Gerald L. Farley
Mayor
Velma W. Lowe
Village Clerk
Village of Mount Prospect
Tree Risk Policy Statement
The Village of Mount Prospect has an active policy to maintain the
safety o£public lands from potentially high-risk trees. The Village
will strive to reduce, in a timely fashion, the potential of harm from
any tree deemed high-risk. When available fiscal and human resources
limit the ability of the Village to remove high-risk trees, priority shall
be.placed on trees deemed to carry the highest risk. Overall standards
will be outlined in atree risk manual. The tree risk manual will be
reviewed by staff'every year. When the risk ora tree is questioned, the
International Society of Arboriculture's twelve-point hazard
evaluation system will be used in assessing the degree of risk. The
Superintendent of Forestry~Grounds xvill directly administer this
program and will form the authoritative opinion in all matters
concerning the mitigation measures taken for any tree.
Village of Mount Prospect
Mount Prospect, Illinois
INTEROFFICE MEMORANDUM
TO:
MICHAEL JANONIS, VILLAGE MANAGER
FROM:
DIRECTOR OF FINANCE
DATE: JUNE §, 2002
SUBJECT: - NATURAL GAS USE TAX COLLECTION AGREEMENT
PURPOSE: To seek Board approval to enter into an agreement with NICOR Gas to collect the
Village's naturel gas use tax.
BACKGROUND: Article XVI of the Mount Prospect Village Code provides for a utility tax on
naturel gas. The current rate is 3.204% with 60% going to the Generel Fund and 40% going to
the Street Improvement Fund. The utility tax is assessed against the gas company, which
passes the tax on to its customere. The'Village collects approximately $400,000 per year from
this tax.
In July of 1998 the Village established a naturel gas use tax to be assessed against any
consumer of natural gas that is not paying the utility tax. The tax.rate is currently $0.0147 per
therm. The usetax was imposed because of deregulation and the fact the utilitytax could not be
assessed against naturel gas providers domiciled outside the State of Illinois. To date, the
Village has not received any preceeds from the use tax.
DISCUSSION: When the Village established the use tax in 1998 the only customere able to
purchase natural gas from companies other than NICOR were commercial and industrial
customers. However, NICOR has recently begun to actively market their "Customer Select"
program which allows all customers, residential and commercial, to choose between several
natural gas providers. Residential customers can choose between five different providers and
commercial and industrial customers can choesebetween eight providers. Approximately one-
half of the .providers are outside 07 Illinois and therefore not subject to the utility tax.
The reason the Village has not received any use tax proceeds to date is because NICOR was
not willing to enter into use tax collection agreements with municipalities and it was impractical
for.local governments to try and collect the tax directly from the customer. Now that residential
customers are being offered the choice of natural gas provider, and there is bound to be a large
number of customers choosing other providers, NICOR is willing to enter into agreements to
collect the tax from customers that they will be billing for the transportation-only charges.
Obviously, this creates more of a level playing field between the gas companies, taking away the
ability of one or more companies to market their gas on a "tax exempt" basis.
atural Gas Use Tax
June 5,2002
Page 2
Attached is a draft agreement forwarded to us by NICOR that would allow them to collect our use
tax from their transportation-only customers who are not subject to the utility tax. This collection
agreement would only apply to situations where NICOR is involved in the billing for transportation
charges. In cases where another provider bills the customer for both the natural gas and
NICOR's transportation charge, NICOR would obviously not be able to collect the use tax. In
cases where NICOR does not do any billing, the Village can ask the other provider to collect the
use tax, but there is nothing requiring the company to do so. The draft agreement has been
reviewed by the Village Attorney. His comments are attached to this memorandum.
RECOMMENDATION: It is recommended the Village Board authorize the Village President to
sign the Tax Collection Agreement by and between the Village of Mount Prospect and NICOR
Gas Company. The natural gas utility tax represents generates a significant amount of money
for Village services and this agreement will help minimize the loss of revenue due to deregulation
and the Customer Select program.
DOUGLAS R. ELLSWORTH, CPA
DIRECTOR OF FINANCE
DRE/
I:\Taxes~Natural Gas Use Tax~Bd Memo 6-5-O2.doc
LA W OFFICES
KLEIN~ THORPE AND JENKINS, LTD.
Suite 1660
20 North Wacker Drive
Chicago, Illinois 60606-2903
Telephone (312) 984-.6400
Facsimile (312) 984-6444
(312) 606-7077
Orland park Office
15010 S. Ravinia Avenue, Suite 17
Orland Park, IL 60462-3162
Telephone (708) 349-3888
Facsimile (708) 349-1506
Writer=$ Direct Dial (312) 984-6420
Wtiter=s E-Mail emhill~k~jnet.com
Rinda Y. Allison
Lance C. Malina
Kathleen T. Herin
John R. Wiktor
George A. Wagner
MEMORANDUM
DATE:
TO:
FROM:
RE:
June 5, 2002
Michael E. Janonis, Village Manager
Everette M. Hill, Jr., Village Attorney
NICOR Form Use Tax Agreement
I have reviewed the Form Use Tax Agreement and following summary commems
regarding the mutual rights and obligations that would attach if the Village were to enter
into the Agreement with NICOR.
Article 3:
Section 3.2A. NICOR passes on to the customer the state and municipal taxes assessed
on it, in addition to the charges for gas and service.
Section 3.2E1.NICOR is required to ma'mtain records, but only for a three-year period.
NICOR will make the records available to the Village at the Village's expense. Such
records disclosure is also subject to NICOR's customer confidentiality policies. Section
3.2E2 further allows the Village to conduct an audit at its own expense and there is no
reference to confidentiality in this regard.
Section 3.2F. The Village will handle a customer claim for a refund or other dispute.
NICOR is not liable to refund any tax collected or other amount collected and forwarded
to the Village.
Section 3.4A. NICOR cannot transfer or assign its obligations under the Agreement
without the Village's reasonable consent. NICOR can delegate its service to a collection
agency, or law firm, without the Village's consent, as well as permit any of its authorized
agents, such as a bank, to accept payments from the customers on behalf of NICOR.
However, if the service is not "satisfactory" to the Village, the Village can require
NICOR itself to perform the Agreement or have it performed through a Village-approved
subcontractor or assignee.
Section 3.4C. The Village must have the written consent of NICOR to transfer or assign
its rights and/or obligations under the Agreement. However, the Village can unilaterally
transfer its right to received the tax without NICOR's consent. Such cases include a debt
financing transaction.
Article 4:
The term of the Agreement is three (3) years without automatic rolling renewals in
increments of one year. Termination must be in writing at least six (6) months before the
end of the term.
Article 5:
NICOR is entitled to three percent (3%) of the amount of taxes collected by NICOR
under the Agreement as a fee for the tax collection services.
Section 9.8. The Village is responsible for the refund if a court or administrative
agency determines that the tax was improperly applied to a customer, or if the tax is
found invalid or unconstitutional by a court. In no event is NICOR responsible for a
refund of the tax or any collection fee that it has received for its services..
Section9.12. Indemnification. The indemnification, hold harmless, provisions are
mutual as to one another's gross negligence, willful misconduct or intentional tortuous
acts and/or omissions, with the exception that the Village further indemnifies, holds
harmless and agrees to defend NICOR for any claim arising from another party's
assertion that the tax is unconstitutional under state or federal law.
Although this summary does not substitute for a full reading of the Agreement, the above,
in my view, are the key substantive provisions that should guide the discussion of
whether to enter into the proposed Agreement with NICOR.
~13~2
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT
BETWEEN THE VILLAGE OF MOUNT PROSPECT AND NICOR GAS
FOR THE COLLECTION OF A NATURAL GAS USE TAX
WHEREAS, the Mayor and Board of Trustees of the Village of Mount Prospect ("the Village'~
have determined that it is in the best interest of the Village to enter into a Tax Collection
Agreement ("the Agreement'~ with Northern Illinois Gas Company, d/b/a NICOR Gas
Company, for the collection of utility taxes on natural gas.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES OF
THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS:
SECTION ONE: That the Board of Trustees of the Village of Mount Prospect do hereby
authorize the Mayor to sign and the Clerk to attest his signature on the Tax Collection
Agreement between the Village of Mount Prospect and NICOR Gas which will provide for the
collection of a Municipal Gas Use Tax.
SECTION TWO: The Agreement shall be in substantially the form attached as Exhibit "A".
SECTION THREE: This Resolution shall be in full force and effect from and after its passage
and approval in the manner provided by law.
AYES:
NAYS:
ABSENT:
PASSED and APPROVED this
day of ,2002.
ATTEST:
Gerald L. Farley
Mayor
Velma W. Lowe
Village Clerk
FORM USE TAX AGREEMENT
Tax Collection Agreement
between
the (Village/City) of , Illinois
and
Northern Illinois Gas Company,
d/b/a Nicor Gas Company
12783125.1
TABLE OFCONTENTS
Page
ARTICLE I.
ARTICLE 2.
ARTICLE 3.
3.1
3.2
3.3
3.4
3.5
3.6
ARTICLE 4.
4.1
ARTICLE 5.
ARTICLE 6.
ARTICLE 7.
7.1
7.2
ARTICLE
8.1
8.2
INCORPORATION OF RECITALS ............................................................... 2
DEFINITIONS ................................................................................................. 2
DUTIES AND RESPONSIBILITIES OF THE CONTRACTOR~.,,. ............. 3
Tax Collection General Provisions ........................................................................ 3
Tax Collection Services ......................................................................................... 3
A. Collection From Customers ....................................................................... 3
B. Kesponsibility for Providing Exempt Customer List ................................. 3
C. Remittance ................................................................................................. 4
D. Customer Payments; Assessment by Municipality; Bankruptcy
Filings by Customers of the Contractor ..................................................... 4
E. Records and Audits .................................................................................... 4
F. Liability for Tax Refunds, Disputes ........................................................... 5
Standard of Performance ........................................................................................ 5
Subcontracts and Assignments .............................................................................. 5
A. Municipality Approval Required ............................................................... 5
B. Effect of Municipality Consent .................................................................. 6
C. Assignment by the Municipality ................................................................ 6
Confidentiality ....... : ............................................................................................... 6
Compliance with Laws .......................................................................................... 6
TIME OF PERFORMANCE ........................................................................... 7
Term of Agreement ................................................................................................ 7
A. Original Term ............................................................................................. 7
B. Extension .................................................................................................... 7
COMPENSATION .......................................................................................... 7
DISPUTES ....................................................................................................... 7
REPRESENTATIONS AND WARRANT[ES .......................................... : ..... 7
Contractor's Representations and Warranties ........................................................ 7
A. Ability to Perform ...................................................................................... 8
B. Agreement Feasible ................................................................................... 8
Municipality's Representations and Warranties .................................................... 8
EVENTS OF DEFAULT AND REMEDIES .................................................. 8
Events of Default ................................................................................................... 8
A. Contractor Events of Default Defined ....................................................... 8
B. Municipality Events of Default Defined ................................................ :... 9
C. Declaration of Default ................................................................................ 9
Remedies ................................................................................................................ 9
12783125. I -i-
TABLE OF CONTENTS
(continued)
Page
8.3
A. Municipality Remedies Defined ................................................................ 9
B. Contractor Remedies Defined .................................................................. 10
C. Remedies Nonexclusive ........................................................................... 10
Absolute Right to Terminate ................................................................................ 10
A. Municipality ......................................................................... :. .................. 10
B. Contractor ................................................................................................ 11
ARTICLE 9.
9.1
GENERAL CONDITIONS ........................................................................... 11
Entire Agreement ................................................................................................. 11
A. General ....... .. ............................................................................................. 11
B. No Collateral Agreements ........................................................................ 11
9.2 Counterparts ......................................................................................................... 11
9.3 Amendments ........................................................................................................ 12
9.4 Governing Law and Jurisdiction .......................................................................... 12
9.5 Severability .......................................................................................................... 12
9.6 Interpretation ........................................................................................................ 12
9.7 Assigns ................................................................................................................. 12
9.8 Responsibility for Refunds .................................................................................. 12
9.9 Miscellaneous Provisions ..................................................................................... 13
9.10 Nonliability of Public Officials ............................................................................ 13
9. I 1 Nonliability of the Contractor's Officers, Directors, Employees and
Agents .................................................................................................................. 13
9.12 Indemnification .................................................................................................... 13
A. Indemnification by Contractor ................................................................. 13
B. General Indemnification by Municipality ........~ ................... : ................... 14
C. Indemnification for Invalid Tax ............................................................... 14
ARTICLE 10. NOTICES ............................................................................ ii ......................... 14
ARTICLE 11. ' AUTHORITY ....................................................................... 1..i.i ............... :.k15
1 I. I Municipality's Authority ................................................. :: ....... '. ..................... :.... 15
11.2 Contractor's Authority ......................................................................................... 15
2783125.
TAX COLLECTION AGREEMENT
This Tax Collection Agreement (this "Agreement") is entered into as of this day of
,20__, by and between Northern Illinois Gas Company, dfo/a Nicor Gas Company,
an Illinois corporation (the "Contractor"), and the (Village/City) of ., Illinois (the
"Municipality"), a municipal corporation and home rule unit of local government existing under
the Illinois Constitution.
RECITALS
~VHEREAS, on . __, 20__, the Municipality adopted Ordinance No. __
(the "Tax Ordinance") pursuant to which the Municipality found that:
(a) the Municipality is a home rule unit under subsection (a) of Section 6 of Article VII of
the Illinois Constitution of 1970;
(b) subject to said Section, a home rule unit may exercise any power and perform any
function pertaining to its government and affairs for the protection of the public health, safety,
morals and welfare; and
(c) in furtherance of its home rule powers, it is necessary and desirable for the
Municipality to amend its ordinances regarding taxation by creating a municipal gas use tax; and
~,VHEREAS, as a result of such findings, the Municipality adopted the Tax Ordinance
imposing a Municipal Gas Use Tax (the "Tax") on gas purchased at retail for use or consumption'
in the Municipality; and
~VHEREAS, the Municipality authorized the execution of an agreement with the
Contractor to provide for the collection of the Tax; and
~,VI-IEREAS, the'Contracto[ represents and warrants that it has the resources and ability
to collect the Tax on behalf of the Municipality and to perform such other related services as are
required to perform its duties under this Agreement; and . .
XNHEREAS, pursuant to Section 10 of Article'VII of the Illinois Constitution of 1970,
the Municipality is authorized to contract and otherwise associate with individuals, associations,
and corporations in any manner not prohibited by law or by ordinance; and
WHEREAS, the Municipality and the Contractor have negotiated the terms and
conditions pursuant to which the Contractor shall collect the Tax and render other related
services, and the Contractor represents that it will perform in accordance with the terms and
provisions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, the Municipality and the Contractor agree as follows:
ARTICLE 1.
INCORPORATION OF RECITALS
The recitals set forth above are incorporated by reference as if fully set forth herein.
ARTICLE 2.
DEFINITIONS
The following terms shall have the meanings ascribed to them for the purposes of this
Agreement:
"Agreement" means this Tax Collection Agreement, including all exhibits attached
hereto and incorporated herein by reference, and all amendments, modifications or revisions
hereto made in accordance with the terms hereof.
"Contractor" has the meaning set forth in the first paragraph of this Agreement.
"Customer, means a Person not on the Exempt Customer List who has an account with
the Contractor and who uses or consumes gas within the Municipality which gas is not exempt
from the Tax under the terms of the Tax Ordinance.
"Customer Account" means an account that a Customer has with the Contractor.
"Exempt Customer List" means a document issued by the Municipality directing the
Contractor not to collect the Tax from the Exempt Customers listed therein.
"Fee" means the compensation payable to the Contractor for the services provided under
this Agreement as more specifically defined in Article 5 of this Agreement.
"Municipality" has the meaning set forth in the first paragraph of this Agreement.
"Person" means any individual, firm, trust, estate, partnership, association, joint stock
company, joint adventure, corporation, limited liability company, municipal corporation, the
State or any of its political subdivisions, any State university, created by statute,-ok a receiver, ~
trustee, conservator or other representative appointed by order of any court.
"Records" has the meaning set forth in Article 3 of this Agreement.
"State" means the State of Illinois.
"Tax" has the meaning set forth in the P~ecitals to this Agreement
"Tax Collection Services" means, collectively, the services, duties and responsibilities
described in Article 3 of this Agreement.
"Tax Ordinance" has the meaning set forth in the Recitals to this Agreement.
12783125.t 2
ARTICLE 3.
DUTIES AND RESPONSIBILITIES OF THE CONTRACTOR
3.1 Tax Collection General Provisions
The Contractor shall perform all the services (the "Tax Collection Services") described in
Section 3.2. The Contractor's duty to perform the Tax Collection Services shall begin with bills
issued to Customers on the first day of 20 . The Contractor shall pe~orm the Tax
Collection Services in accordance with the standard of performance set forth in Section 3.3 of
this Agreement.
The Contractor agrees that, notwithstanding anything in this Agreement to the contrary, it
is acting as an independent contractor in performing under this Agreement and nothing herein is
intended or should be construed as in any way creating or establishing the relationship of
partne3s or joint venturers between the Municipality and the Contractor, or as constituting the
Contractor or any officer, owner, employee or agent of the Contractor as ~n agent, representative,
fiduciary or employee of the Municipality for any purpose or in any manner whatsoever.
3.2 Tax Collection Services
A. Collection From Customers
The Contractor will collect the Tax for each Customer Account by including the Tax on
the bills issued to the Customer for the Customer Account. The Tax will be billed and collected
at the rate of cents ($. ) per therm of gas delivered and billed by the Contractor to such
Customer Account. The Contractor will collect the Tax along with any other amounts owed to
the Contractor, including any gas and service charges, and any charges pursuant to Sections 9-
22 t and 9-222 of the Public Utilities Act. The Contractor will not collect the Tax from any
Person who is not a Customer with a Customer Account.
The Contractor will include the Tax on any bill issued to a Customer Account for a
Customer on or after ., 20__.
In the event that the Tax Ordinance is amended, the Municipal!ty shall provide noti~e'to
the Contractor within 14 days of the date that any amended ordinance is passed. If the amended
ordinance changes the rate of the Tax, then the Contractor shall collect the Tax at the new rate
with respect to bills issued for a Customer Account on or after: (i) the effective date of the
amended ordinance; or (ii) three months after the date on which the amended ordinance is
passed, whichever is later.
B. Responsibility for Providing Exempt Customer List
If applicable, it shall be the obligation of the Municipality to provide the Contractor with
the Exempt Customer List. Upon receipt of the Exempt Customer List by the Contractor, the
Contractor shall not include the Tax on any bill issued to an Exempt Customer on the Exempt'
Customer List from and after the first day of the month next following the date of receipt of the
Exempt Customer List.
12783125.1 3
C. Remittance
The Contractor will remit the Tax collected, net of its Fee, to the Municipality on or
before the last day of the first calendar month following the calendar month in which the Tax is
collected.
De
Customer Payments; Assessment by Municipality; Bankruptcy Filings by
Customers of the Contractor.
1. Payments and Assessments by Municipality
The Tax shall be due and payable to the Contractor by the due date of the bill on which
the Tax is included. The Municipality shall not assess or attempt to collect any Tax from a
Customer. In the event that a Customer attempts to pay the Tax to the Municipality, the
Municipality shall use its best efforts to direct the Customer to pay the Tax to the Contractor.
2. Bankruptcy Filings
In the event a proceeding in bankruptcy court is commenced with respect to a Customer
and the Contractor becomes aware of such bankruptcy, the Contractor shall use its best efforts to
notify the Municipality of such pro~eeding, and the Municipality shall be entitled to file its own
claim in the bankruptcy court for any Tax owed by such Customer. A failure to provide notice
under this paragraph shall not constitute a default under this Agreement.
E. ' Records and Audits
1. Records
The Contractor will keep accurate records and accounts with respect to each Customer
Account that will include the number of therms of gas delivered and billed with respect to the
Customer Account, the amounts billed to the Customer Account, and the payments received with
respect to the Customer Account (collectively, the "Records"). Also, the Records will show the
dates which correspond to the Customer Account information: the dates on which hills were
issued, the due dates of bills and the dates on which payments were received. Th~ Contractor
will make the Records available at all reasonable times for inspection and examination by the
Municipality, subject to the Contractor's customer confidentiality policies. Any Records required
to be provided or kept under this paragraph shall be retained by the Contractor for a three-year
period. Also, Records in existence at the time of termination of this Agreement shall be retained
for a period of three years from the creation of such Records.
2. Audits
The Municipality shall have the right to audit, at the Municipality's expense, ali
collections of Tax made by the Contractor and remitted to the Municipality pursuant to this
Agreement and all Fees deducted by the Contractor under this Agreement.
12783125.1 4
The Contractor shall keep the Records open to audit, inspection, copying and abstracting
by the Municipality, at the Municipality's expense, and shall make the Records available to the
Municipality at reasonable times during the te~ of this Agreement.
The Contractor shall maintain the Records in accordance with accounting procedures and
practices sufficient to reflect properly all Tax due, billed, collected and/or remitted to the
Municipality, and the amount of any Fees deducted by the Contractor as payment for the Tax
Collection Services. The system of accounting shall be in accordance with generally accepted
accounting principles and practices, consistently applied throughout.
F. Liability for Tax Refunds, Disputes
Liability for the Tax shall rest exclusively with the Customer. The Contractor shall not
be liable to remit any Tax not actually collected. Any Customer's claim for a refund or other
dispute regarding the amount of Tax owed or collected shall be directed to and handled by the
Municipality, not the Contractor. In no case, shall the Contractor be liable to refund any Tax to a
Customer or other amount collected and remitted to the Municipality pursuant to this Agreement.
3.3 Standard of Performance
The Contractor shall perform the Tax Collection Services with that degree of skill, care
and diligence normally shown by a Person performing services of a scope, purpose and
magnitude comparable with the Tax Collection Services. The Contractor shall exercise
necessary and appropriate expertise and judgment in performing the Tax Collection Services.
3.4 Subcontracts and Assignments
A. Municipality Approval Required
Without the express written consent of the Municipality, such consent not to be
unreasonably withheld, the Contractor shall not subcontract, assign, delegate or otherwise
transfer all or any part of its rights or obligations under this Agreefiient. Any attempted
subcontract, assignment, delegation or transfer made without such express writtcr~ consent shall
be void and of no effect.
Notwithstanding the foregoing, the Contractor may, without the consent of the
Municipality, transfer its rights and obligations under this Agreement, in whole, but not in part,
in connection with a merger or a sale, transfer or conveyance of all or substantially all of the
Contractor's assets. In addition, the Contractor may, without the consent of the Municipality,
subcontract, assign or delegate Tax Collection Services to one or more collection agencies or law
firms in the ordinary course of the Contractor's business and consistent with the requirements of
this Agreement. Furthermore, the Contractor may, without the consent of the Municipality,
permit any of its authorized agents listed on the Contractor's published "Directory of Company
Authorized Collection Agents and Company Offices", for example, a bank or a savings and loan,
to accept payments from Customers on behalf of the Contractor.
All subcontraqts or assignments shall be deemed conditioned upon performance by the
subcontractor or assignee in accordance with the terms and conditions of this Agreement. If any
12783125.l 5
such subcontractor or assignee shall fail to observe or perform the terms and conditions of this
Agreement to the satisfaction of the Municipality, the Municipality shall have the fight upon
written notification to require the performance of this Agreement by the Contractor personally or
through any other Municipality-approved subcontractor or assignee.
B. Effect of Municipality Consent
No consent to any subcontract or assignment with respect to this Agreement, nor any
acceptance of or payment for any Tax Collection Services, by the Municipality shall relieve the
Contractor of any of its obligations hereunder.
C. Assignment by the Municipality
Without the express written consent of the Contractor, such consent not to be
unreasonably withheld, the Municipality shall not subcontract, assign, delegate or otherwise
transfer ail or any part of its rights or obligations under this Agreement. Any attempted
subcontract, assignment, delegation or transfer made without such express written consent shall
be void and of no effect.
Notwithstanding the foregoing, the Municipality may, without the consent of the
Contractor, (i) assign or otherwise transfer, in whole or in part, its rights to receive the Tax
collected hereunder in connection with any debt financing transaction, and (ii) subcontract,
assign or delegate all or any part of its rights of assessment and enforcement with respect to the
Tax.
3.5 Confidentiality
The Contractor and the Municipality hereby agree not to disclose to third parties any
information provided to either the Contractor or the Municipality by the other (or by such other
party's agents, contractors, or subcontractors), or obtained by either party in the performance of
its obligations under this Agreement. This Section 3.5 shall not apply to the following: (a)
information available from public sources, (b) information made public by a party other than the
Municipality or the Contractor, (c) disclosure by the Contractor to affiliates of_the Contractor, or
to the Contractor's agents or subcontractors which is necessary for the Contractor to perform its
obligations under this Agreement, (d) disclosure required, in the opinion of the disclosing party's
legal counsel, by law, .judicial or administrative order or where such disclosure is necessary to
comply with Federal or state securities laws, (e) disclosure required by any lender providing
financing to the Contractor or the Municipality or from whom such financing is sought, (f)
disclosure to a Customer regarding.his Tax liability or payment, (g) general instructions and/or
general information regarding the Tax provided to the public and/or to Customers, (h) disclosure
to the Illinois Commerce Commission, and (i) disclosure required under the Illinois Freedom of
Information Act.
3.6 Compliance with Laws
The Contractor and the Municipality shall at all times observe and comply, in all material
respects, with all applicable laws, ordinances, roles, regulations, policies and executive orders of
the federal, state and local government which may affect the performance of this Agreement.
12783125.1 6
ARTICLE 4.
TIME OF PERFORMANCE
4.1 Term of Agreement
A. Original Term
This Agreement shall take effect as of the date hereof and shall continue until
20__ (subject to paragraph B below) or until this Agreement is terminated in accordance with its
terms, whichever occurs first.
The Contractor's duty to perform the Tax Collection Services shall begin with bills
issued to Customers on ., 20__ and shall cease (unless otherwise extended hereunder)
with respect to bills issued on or after ,20
B. Extension
This Agreement shall automatically extend for successive one-year periods after the
original three-year term unless either party elects to terminate this Agreement by written notice
delivered to the other party no later than six months prior to the end of the then current term.
ARTICLE 5.
COMPENSATION
As compensation for the 'Tax Collection Services provided hereunder, the Contractor
shall be paid a fee (the "Fee") equal to 3% of the amount of Tax collected by the Contractor, its
subcontractors or its authorized agents and remitted in accordance with Section 3.2D. The
Contractor shall be entitled to deduct the applicable Fee from each remittance of Tax to the
Director. Payment of the Fee for any Tax actually collected and remitted to the Municipality in
accordance with Section 3.2D, whether before or after the effective date of the termination of
this Agreement, shall be in accordance with this Article 5.
ARTICLE 6.
DISPUTES
The Municipality and the Contractor shall use their best efforts to resolve any disputes
arising under this Agreement including disputes as to whether the Contractor failed to remit or
timely remit any Tax collected. During any period of dispute resolution, the Contractor shall
continue to perform the Tax Collection Services and will be entitled to collect its Fee under
Article 5.
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES
7.1 Contractor's Representations and Warranties
In connection with the execution of this Agreement, the Contractor hereby represents and
warrants to the Municipality the statements set forth in this Section 7.1.
12783~25.1 7
A. Ability to Perform
The Contractor is financially solvent; it is legally authorized to execute this Agreement
and to perform or cause to be performed the Tax Collection Services; and it is competent to
perform the Tax Collection Services.
B. Agreement Feasible
The Contractor has carefully examined and analyzed the provisions and rec~uirements of
this Agreement; it understands the nature of the Tax Collection Services; from its own analysis it
has satisfied itself as to the nature of all things needed for the performance of this Agreement; to
the best of the Contractor's knowledge the Agreement is feasible cf performance in accordance
with all of its provisions and requirements; and the Contractor can and shall perform, or cause to
be performed, the Tax Collection Services in accordance with the provisions and requirements of
this Agreement.
7.2 Municipality's Representations and Warranties
In connection with the execution of this Agreement, the Municipality hereby represents
and warrants to the Contractor the statements set forth in this Section.
(A)
The Municipality is a municipality duly constituted and validly existing within the
meaning of Section 1 of Article VII of the 1970 Constitution of the Stale and is a
home rule unit of government under Section 6(a) of Article VII of said
Constitution.
The Municipality has full power and authority as a home rule unit of government
to impose the Tax and to execute this Agreement.
(c)
The Municipality has duly authorized all necessary action to be taken by it for the
imposition of the Tax and the execution and .performance of this Agreement.
ARTICLE 8.
EVENTS OF DEFAULT AND REMEDIES
8.1 Events of Default
A. Contractor Events of Default Defined
The following shall constitute events of default on the part of the Contractor:
(1)
any material misrepresentation made in this Agreement, whether negligent or
willful and whether in the inducement or in the performance, made by the
Contractor to the Municipality;
(2)
the Contractor's failure to perform any of its material obligations under this
Agreement; and
12783125.1 8
(3)
the inability of the Contractor to perform the Tax Collection Services
satisfactorily as a result of its insolvency, filing for protection under any
bankruptcy law or assignment for the benefit of creditors.
B. Municipality Events of Default Defined
The following shall constitute events of default on the part of the Municipality:
(1)
any material misrep~'esentation made in this Agreement, whether negligent or
willful and whether in the inducement or in the performance, made by the
Municipality to the Contractor; and
(2)
the Municipality's failure to perform any of its material obligations under this
Agreement.
C. Declaration of Default
(1) Municipality's Declaration of Default
The Municipality shall notify the Contractor in writing of any cimumstance which the
Municipality believes to be an event of default and the Contractor shall have 30 calendar days to
cure such event of default. The occurrence of any event of default which the Contractor has
failed to cure within such 30-day period shall permit the Municipality to declare the Contractor
in default.
Written notification of any decision to declare the Contractor in default shall be provided
to the Contractor, and such decision shall be final and effective upon the Contractor's receipt of
such notice.
(2) Contractor's Declaration of Default
The Contractor shall notify the Municipality in writing.of any circumstance which the
Contractor believes to be an event of default and the Municipality shall have 30 calendar days to
cure such event of default. The Occurrence of any event of default which the MUnicipality has
failed to cure within such 30-day period shall permit the Contractor to declare the Municipality
in default.
Written notification of any decision to declare the Municipality in default shall be
provided to the Municipality, and such decision shall be final and effective upon the
Municipality's receipt of such notice.
8.2 Remedies
A. Municipality Remedies Defined
Upon declaring the Contractor in default as provided herein, the Municipality may in'~oke
any or all of the following remedies:
12783125.1 9
the right to terminate this Agreement as to any or all of the Tax Collection
Services yet to be performed effective at a time specified by the Municipality;
(2)
the right to seek specific performance, an injunction or any other appropriate
equitable remedy; and/or
(3) other remedies available under the law.
B. Contractor Remedies Defined
Upon declaring the Municipality in default as provided herein, the Contractor may invoke
any or all of the following remedies:
(1)
the right to terminate this Agreement effective at a time specified by the
Contractor;
(2) the right to seek an injunction or any other appropriate equitable remedy; and/or
(3)
the right to seek mo~ey damages. The Contractor shall not seek Fees that would
have been earned in the future, had the Agreement not been terminated.
C. Remedies Nonexclusive
The remedies provided for in this Agreement are not intended to be exclusive of any
other remedies, but each and every such remedy shall'be cumulative and shall be in addition to
all other remedies, now or hereafter existing at law, in equity or by statute.
No delay in exercising or failure to exercise any right or power accruing upon any event
of default shall impair any such right or power nor shall it be construed as a waiver of any event
of default or acquiescence therein, and every such right and power may be exercised from time
to time and as .often as may be deemed expedient.
8.3
Absolute Right to Terminate
A. Municipality
In addition to termination pursuant to Sections 4.1.B and 8.2A, the Municipality shall
have the absolute right to terminate this Agreement by a notice in writing from the Municipality
to the Contractor setting forth the e.'ffective date of such termination if the Tax is preempted,
repealed, or determined by a court of competent jurisdiction to be unconstitutional or otherwise
invalid.
If the Municipality elects to terminate this Agreement under this Section 8.3A, all Tax
Collection Services to be provided hereunder shall cease with respect to bills issued on and after
the effective date stated in the notice.
12783125.l 10
B. Contractor
In addition to termination pursuant to Sections 4.lB and 8.2B, the Contractor shall have
the absolute right to terminate this Agreement by a notice in writing from the Contractor setting
forth the effective date of such termination if the Illinois Commerce Commission issues an order
prohibiting the Contractor from performing all or part of the Tax Collection Services or if the
Tax is preempted, repealed, or determined by a court of competent jurisdiction to be
unconstitutional or other;vise invalid.
If the Contractor elects to terminate this Agreement under this Section 8.3B, all Tax
Collection Services to be provided hereunder shall cease with respect to bills issued on and after
the effective date stated in the notice.
ARTICLE 9.
GENERAL CONDITIONS
9.1 Entire Agreement
A. General
The Contractor and the Municipality acknowledge that this Agreement shall constitute
the entire agreement between the parties and no other warranties, inducements, considerations,
promises or interpretations shall be implied or impressed upon this Agreement that are not
expressly addressed herein and therein.
B. No Collateral Agreements
The Contractor and the Muflicipality agree that, except for those representations,
statements or promises expressly contained in this Agreement, no representation, statement or
promise, oral or in writing, of any kind whatsoever, by either party, its officials, its agents or its
employees has induced the other party to enter into this Agreement or has been relied upon by
either party including any with reference to (i) the meaning, correctness, suitability.or
completeness of.any provisions or requirements of this Agreement; (ii) the nature' of the Tax
Collection Services to be performed; (iii) the nature, quantity3 quality or volume of any
materials, labor or other facilities needed for the performance of this Agreement; (iv) the general
conditions which may in any way affect this Agreement or its performance; (v) the compensation
provisions of this Agreement; or (vi) any other matters, whether similar to or different from those
referred to in clauses (i) through (v) above, affecting or having any connection with this
Agreement or the negotiation or performance hereof.
9.2 Counterparts
This Agreement is comprised of several identical counterparts, each to be fully executed
by the parties and each to be deemed an original having identical legal effect.
12783125.1 11
9.3 Amendments
No changes, amendments, modifications or discharge of this Agreement, or any part
hereof, shall be valid unless in writing and signed by the authorized agent of the Contractor and
by the Municipality or their respective successors and assigns.
9.4 Governing Law and Jurisdiction
This Agreement shall be govemed as to performance and interpretation in accordance
with the laws of the State of Illinois without regard to principles of conflicts of law.
9.5 Severability
The invalidity of any one or more phrases, sentences, clauses or sections contained in this
Agreement shall not affect the validity or enforceability of the remaining portions of this
Agreement.
9.6 Interpretation
Any headings of this Agreement are for convenience or reference only and do not define
or limit the provisions hereof. Words of any gender shall be deemed and construed to include
correlative words of the other genderg. Words importing the singular number shall include the
plural number and vice versa unless the context shall otherwise indicate. All references to any
exhibit or document shall be deemed to include all supplements and/or.amendments to any such
exhibits or documents entered into in accordance with the terms and conditions hereof and
thereof. All references to any person or entity shall be deemed to include any person or entity
succeeding to the rights, duties and obligations of such persons or entities in accordance with the
terms and conditions of this Agreement.
9.7 Assigns
All of the terms and conditions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives, successors, transferees and
assigns.
9.8 Responsibility for Refunds
In the event that it is determined by a court or administrative agency of competent
.jurisdiction that the Tax does not apply to the use of gas by a Customer from whom the Tax was
collected and remitted to the Municipality in accordance with this Agreement, it shall be the
Municipality's responsibility to make any necessary refunds; the Contractor shall not be
responsible for any refunds to the Customer, nor shall the Contractor be required to refund to the
Municipality any Fee retained by the Contractor with respect to the Tax collected fi'om that
Customer.
In the event that the Tax is found -to be invalid or unconstitutional by a court of
competent jurisdiction, it shall be the Municipality's responsibility to make any necessary
refunds; the Contract6r shall not be responsible for any refunds of the Tax to Customers, nor
12783125.1 12
shall the Contractor be required to refund to the Municipality any Fee retained by the Contractor
with respect to Tax collected.
9.9 Miscellaneous Provisions
Whenever under this Agree.ment the Municipality by a proper authority waives the
Contractor's performance in any respect or waives a requirement or condition to either the
Municipality's or the Contractor's performance, the waiver so granted, whether express or
implied, shall only apply to the particular instance and shall not be deemed a waive~ forever or
for subsequent instances of the performance, requirement or condition. No such waiver shall be
construed as a modification of this Agreement regardless of the number of times the
Municipality may have waived the performance, requirement or condition.
Whenever under this Agreement the Contractor by a proper authority waives the
Municipality's performance in any respect or waives a requirement or condition to either the
Municipality's or the Contractor's performance, the waiver so granted, whether express or
implied, shall only apply to the particular instance and shall not be deemed a waiver forever or
for subsequent instances of the performance, requirement or condition. No such waiver shall be
construed as a modification of this Agreement regardless of the number of times the Contractor
may have waived the performance, requirement or condition.
9.10 Nonliability of Public Officials
No official, employee or agent of the Municipality shall be charged personally by the
Contractor or by any assignee or subcontractor of the Contractor with any liability or expenses of
defense or be held personally liable to them under any term or provision of this Agreement or
because of the Municipality's execution or attempted execution thereof or because of any breach
hereof.
9.11 Nonliability of the Contractor's Officers, Directors, Employees and Agents
No officer, director, employee or agent of the Cor~ractor shall be charged personally by
the Municipality or by any assignee or subcontractor of the Municipality with ~/y liability or
expenses of defense or be held personally liable to them under any term or provision of this
Agreement or because of the Contractor's execution or attempted execution thereof or because of
any breach hereof.
9.12 Indemnification
A. Indemnification by Contractor
The Contractor agrees to indemnify, defend and hold harmless the Municipality,
including its officers, agents and employees, against any liability, loss, costs and expenses,
including all costs of litigation and all reasonable attomeys' fees, that the Municipality, including
its officers, agents and employees, incur, sustain or are subject to which arise from the
Contractor's gross negligence, wilful misconduct, or intentionally tortious acts or omissions, in
performing under this. Agreement, ts determined by a court of competent jurisdiction.
12783125.1 1 3
B. General Indemnification by Municipality
The Municipality agrees to indemnify, defend and hold harmless the Contractor,
including its officers, agents and employees, against any liability, loss, costs and expenses,
including all costs of litigation and all reasonable attorneys' fees, that the Contractor, including
its officers, agents and employees, incur, sustain or are subject to which arise from the
Municipality's gross negligence, wilful misconduct, or intentionally tortious acts or omissions, in
performing under this Agreement, as determined by a court of competent jurisdiction.
C. Indemnification for Invalid Tax
The Municipality agrees to indemnify, defend and hold harmless the Contractor,
including its officers, agents and employees, against any liability, loss, costs and expenses,
including all costs of litigation and all reasonable attorneys' fees, that the Contractor, including
its officers, agents and employees, incur, sustain or are subject to that results from or arises out
of any claim, cause of action or litigation wherein another party asserts that the Tax is
unconstitutional under the United States or Illinois constitutions or otherwise invalid.
ARTICLE 10.
NOTICES
Notices provided for herein, unless expressly provided for otherwise in this Agreement,
shall be in writing and may be delivered personally or by placing in the United States mail, first
class and certified, return receipt requested, with postage prepaid and addressed as fgllows:
If to the Municipality:
(Village/City) of
, Illinois
If to the Contractor:
Nicor Gas Company
1844 Ferry Road
Aur6ra, Illinois 60563-9600
Attention: Director, Community Relations
With a Copy to:
Nicor Gas Company
, Illinois
Attention: Regional Community Relations Director
Changes in the above-referenced addresses must be in writing and delivered in accordance ~vith
the provisions of this Article I 0. Notices delivered by mail shall be deemed received three days
after mailing in accordance with this Article 10. Notices delivered personally shall be deemed
effective upon receipt.
I2783125.1 14
ARTICLE 11.
AUTHORITY
11.1 Municipality's Authority
This Agreement is entered i~nto by virtue of the home rule authority conferred on the
Municipality under Section 6(a), Article VII of the 1970 Constitution of the State.
11.2 Contractor's Authority
Execution of this Agreement by the Contractor is authorized by bylaws or a resolution of
its Board of Directors, and the signature of each person signing on behalf of the Contractor have
been made with complete and full authority to commit the Contractor to all terms and conditions
of this Agreement.
12783125.1 15
IN WITNESS WHEREOF, the Municipality and the Contractor have executed this
Agreement on the date first set forth above.
(VILLAGE/CITY) OF
By:
Its:
NORTHERN ILLINOIS GAS COMPANY, d/b/a/
NICOR GAS COMPANY
By:
Its:
12783125.1 16
VWL/
RESOLUTION NO.
A RESOLUTION REQUESTING CLOSURE OF A PORTION
OF CENTRAL ROAD IN ORDER TO CONDUCT A PARADE
WHEREAS, the Village of Mount Prospect desires to hold the annual Independence
Day Parade on a portion of Central Road and Elmhurst Road (Route 83) in the
Village of Mount Prospect on Thursday, July 4, 2002; and
WHEREAS, said parade will require closure of that portion of Central Road between
Northwest Highway and Busse Road, the curb lane of Westbound Central Road
between Busse Road and Arthur Street, and Elmhurst Road (Route 83) between
Northwest Highway and Golf Road; and
WHEREAS, the State of Illinois requires that the Village assume all responsibility
and liability involved in the closure of said State roadways.
NOW, THEREFORE BE IT RESOLVED BY THE MAYOR AND BOARD OF
TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY,
ILLINOIS:
SECTION ONE: That the Village of Mount Prospect hereby requests the State of
Illinois, Highway Department, to close Central Road between Northwest Highway and
Busse Road, the westbound curb lane of Central Road between Busse Road and
Arthur Street, and Elmhurst Road (Route 83) between Northwest Highway and Golf
Road between the hours of 1:00 P.M. and 3:00 P.M. in order to conduct the annual
July 4th Parade, a copy of which parade route and requested roadway closures is
attached hereto.
SECTION TWO: That the Village of Mount Prospect will assume full responsibility for
the direction, protection and regulation of traffic during the time the detour is in effect
and all liability for damages of any kind occasioned by the closure of the
aforementioned roadways.
SECTION THREE: That the Village of Mount Prospect will provide for efficient, all
weather detour signs, to be maintained, conspicuously marked and judiciously
patrolled by the Police Department for the benefit of traffic diverted as a result of the
street closure requested herein.
F
Street closure
Page 2/2
SECTION FOUR: That this Resolution shall be in full force and effect from and after
its passage and approval in the manner provided by law.
AYES:
NAYS:
ABSENT:
PASSED and APPROVED this
day of June, 2002.
ATTEST:
Gerald L. Farley
Mayor
Velma W. Lowe
Village Clerk
H:\GEN\files\WIN\RES\Close streets-parade,2002.doc
VII JLAGE OF MOUNT PROSPECT
INDEPENDENCE DAY PARADE
S~ T~aw: 1:00 p J4.
Step ~ From P., Proq~ct Avt.
& M~p~ St.
We~ e~ P~eI~ Avee.~ ~ C4r~'d Read
w~u on Ce~'~ Road 1~ Me*~s Padr
le C[/~TR&L ROlO
L~NCOLN