HomeMy WebLinkAboutRes 37-02 06/18/2002 wl
6/13/02
RESOLUTION NO. 37-02
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 ('1he 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:
Lohrstorfer, Skowron, Wilks, Zadel
NAYS: None
ABSENT: Corcoran, Hoefert
PASSED and APPROVED this 18th day of June, 2002.
Village Clerk
H:\GEN\files\WIN\RES'~uth agrmt, NICOR OasUseTax,Jun02.doc
Mayor
FORM USE TAX AGREEMENT
Tax Collection Agreement
the (Village/~tl~) aOfnd~~ux~ , Illmo~s
Northern Illinois Gas Company,
dfo/a Nicor Gas Company
12783125.1
TABLE OF CONTENTS
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.
8.1
8.2
iNCORPORATION OF R_ECITALS ............................................................... 2
DEFINITIONS ................................................................................................. 2
DUTIES AND RESPONSIBILITIES OF THE CONTRACTORJ .................. 3
Tax Collection General Provisions ........................................................................ 3
Tax Collection Services ......................................................................................... 3
A. Collection From Customers ....................................................................... 3
B. Responsibility 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 WARRANTIES .......................................... ; ..... 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. !
TABLE OF CONTENTS
(continued)
Page
8.3
A. Municipality Remedies Defined ................................................................ 9
B. Contractor Remedies Defined .................................................................. 10
C. Remedies Nonexclusive ........................................................................... I0
Absolute Right to Terminate ................................................................................ 10
A. Municipality ......................................................................... .'. .................. 10
B. Contractor ................................................................................................ I 1
ARTICLE 9.
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9.11
9.12
GENERAL CONDITIONS ........................................................................... 11
Entire Agreement ................................................................................................. 11
A. General ....... : ............................................................................................. 11
B. No Collateral Agreements ........................................................................ 11
Counterparts ......................................................................................................... 11
Amendments ........................................................................................................ 12
Governing Law and Jurisdiction .......................................................................... 12
Severability .......................................................................................................... 12
Interpretation ........................................................................................................ 12
Assigns ................................................................................................................. 12
Responsibility for Refunds ................... ;. .............................................................. 12
Miscellaneous Provisions ..................................................................................... 13
Nonliability of Public Officials ............................................................................ 13
Nonliability of the Contractor's Officers, Directors, Employees and
Agents .................................................................................................................. 13
Indemnification .................................................................................................... 13
A. Indemnification by Contractor ................................................................. 13
B. General Indemnification by Municipality ........: ................... ~ ................... 14
C. Indemnification for Invalid Tax ............................................................... 14
ARTICLE I 0.
ARTICLE 1 I.
11.I
11.2
NOTICES ...................................... ; ................................................................ 14
· AUTHORITY ....................................................................... : .................... :2.15
Municipality's Authority ................................................. v ....... : ..................... :.... 15
Contractor's Authority ......................................................................................... 15
12783125.1 -ii-
TAX COLLECTION AGREEMENT
~-~ This Tax Collection Agreement (this "Agreement")is entered into as of this/_ ~7/"~ay of
t,O/[~ ,200__~, by and ,b, etween No,~hem Illinois Gas Company, d/b/a~ic.9.r..~a~-'ompany,
an Illinois corporation (the Contractor '), and the (Village/CTi~) of~0qtr/'~'t~"lllinois (the
"Municipality"), a municipal corporation and home role unit of locar government existing under
the Illinois Constitution.
RECITALS
WltEREAS, on --,~"1~1~. /_~., 20__, heMum v ~ yactopted~.4i~m-~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
'WHEREAS, 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
tvVHEREAS, the Municipality authorized the execution of an agreement with the
Contractor to provide for the collection of the Tax; and
~VItEREAS, the Contracto.r 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 . -
~NItEREAS, 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
~VItEREAS, 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:
12783115.1
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, 'oi' a receive~, '
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 Recitals 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.
12783125.1
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 per.form 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
partnei's 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 an 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-
221 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 Municipality shall provide noti~e'to
the Contractor within 14 days of the date that any amended ordin~nc6' 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 Li~t.
1278M25.1 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.
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 pm~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 oftherms 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 off' which bills were
issued, the due dates of bills and the dates on which payments were received. Tli6 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, all
collections of Tax made by the Contractor and remitted to the Municipality pursuant to this
Agreement and all Fees deducted by the Contraotor under this Agreement.
~2783125.1 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 term 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 shallbein 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 writter~ consent of the Municipality, such consent not fo be
unreasonably withheld, the Contractor shall not subcontract, assign, delegate or otherwise
transfer all or any part of its rights or obligations under this Agreeti/ent. Any attempted
subcontract, assignment, delegation or transfer made without such express written 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 subcontracts 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
12783125.1
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 right 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 all or any part of its fights 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 subcon~actors 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, Crt) 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, rules, regulations, policies and executive orders of
the federal, state and local government which may affect the performance of this Agreement.
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 aceo~'dance with-~ts
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 ;vith 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.
12783125.1 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 requirements 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 of 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 execi~tion 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 State and is a
home role unit of government under Section 6(a) of Article VII of said
Constitution.
(B)
The Municipality has full power and authority as a home role unit of government
to impose the Tax and to execute this Agreement.
(c)
The Municipality has duty authorized all necessary action to be taken by it for the
imposition of the Tax and the execution andperformance 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:
(i)
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
1278312~.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 misrepresentation 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) Municipalitv's Declaration of Default
The Municipality shall notify the Contractor in writing of any circumstance 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:
t2783125.! 9
(t)
(2)
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;
the fight 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 fight to seek an injunction or any other appropriate equitable remedy; and/or
(3)
the fight to seek money 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 fight or power accruing upon any event
of default shall impair any such fight or power nor shall it be constmed as a waiver of any event
of default or acquiescence therein, and every such fight and power may be exercised from time
to time and as often as may be deemed expedient.
8.3
A.
Absolute Right to Terminate
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.
1278~125.! i0
B. Contractor
In addition to termination pursuant to Sections 4.1B 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 otherwise 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 Mufiicipality 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, quantity~ 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.
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 governed 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 gender~. 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 c6nditions 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, sueeessors,.tr~sferees and
assigns.
9.8 Responsibility for Refunds
In the event that it is detera~ined 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 necessa~ refunds; the Contractor shall not be
responsible fo~ any refunds to the Customer, nor shall the Comractor be required to refund to the
Municipality any Fee retained by the Contractor with respect to the Tax collected from 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 Contraet6r shall not be.responsible for any refunds of the Tax to Customers, nor
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 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
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 Contractor shall be charged personally by
the Municipality or by any assignee or subcontractor of the Municipality with agiO; 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 hereofi
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 attorneys' 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, ~s determined by a court of competent jurisdiction.
12753125.1 13
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 VIU.AGEOFMOUIfl'PROSPECT
lO0 S. £mmon Street
· ,,,.,,,,~ ..,,o,,-.,,..k uuu*,,,*3266
, l~.hnols
If to the Contractor:
Nicor Gas Company
1844 Ferry Road
Aurora, 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 with
the provisions of this Article 10. 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 role 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.
N WITNESS WHEREOF, the Municipality and the Contractor have executed this
Its:
NORTHE~ ILL~OIS GAS COMPS, ~/~
NICOR GAS COMPA~
By:.
Its:
16