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HomeMy WebLinkAboutRes 42-90 10/16/1990 AF/ 10/10/90 RESOLUTION NO. 42-90 A RESOLUTION AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT GOVERNING J.U.L.I.E. WHEREAS, it is imperative that the proper location of underground utilities be identified;and WHEREAS, with the location of UndergrOund utilities known, the incidence of service interruption' due to construction, drilling, excavating, etc.; and WHEREAS, JULIE, Inc. is a not-for-profit organization established to provide an accurate record of the various locations of utilities, which information is provided to member communities; and WHEREAS, the Mayor and Board of Trustees of the Village of Mount Prospect has deemed that the best interests of the Village would be served by entering into an Agreement with J.U.L.I.E, Inc. in order to provide this essential infOrmation. 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 do hereby authorize entering into an Agreement with the JULIE, Inc. a copy of said Agreement is attached hereto and hereby made a part hereof. 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: Arthur, Busse, Corcoran, Floros, Van Geem, Wattenberg NAYS: None ABSENT: None PASSED and APPROVED this 16th day of October , 1990. ~ Gerald L~ Farley Mayor ATTEST: ~ Village Clerk MEMBERSHIP AGREEMENT = JULIE, INC. April 18, 1990 AMENDED - APRIL 11, 1990 PAGE 1 MEMBERSHIP AGREEMENT Agreement made this 28th day of September , 1990 by and between JULIE, INC., an Illinois not-for-profit corporation with its principal office at 3033 W. Jefferson St., Joliet, IL. 60435 (hereinafter the "corporation") and the Village of Mount Prospect , a municipality ~~O~with its principal office at 100 S. Emerson Street, Mount Prospect, IL 60056 (hereinafter called the "member"). WHEREAS, the corporation has been formed as an Illinois General Not-for-Profit Corporation to establish facilities to receive and transmit information to and from persons, firms, corporations and other entities intending to undertake activities which might interfere with or damage the facilities of members of the corporation or others and such activities to include but not be limited to excavating, drilling, blasting or otherwise disturbing the subsurface of the earth and to forward information to the members of the corporation who have facilities which might be affected by the proposed activities;'and WHEREAS, the member has such facilities and therefore wishes to become a member of the corporation: NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties agree as follows: ARTICLE I 1.1 The member accepts and agrees to be bound by the terms and conditions of the Articles of Incorporation, the By-Laws and the Operating Rules and Regulations of the corporation, as the same shall be in effect from time to time. MEMBERSHIP AGREEMENT = JULIE, INC. April 18, 1990 AMENDED - APRIL 11, 1990 PAGE 2 ARTICLE II 2.1 Each member shall be individually and solely responsible for taking such action as it, in its sole discretion, may deem necessary to protect its respective underground or other facilities and to prevent interruption of its respective service to the public. 2.2 Nothing in this Agreement shall prevent any member from seeking recovery against the party (including any other member of the corporation) who caused or was responsible for the loss or damage to the member's underground or other facilities or for any other claim or injury except that the membe~ hereby waives any right to recover against the corporation its directors, officers and employees. It is also expressly understood that neither this Agreement nor the By-Laws is intended to, nor shall either be construed as, altering or affecting the rights and obligations of any member in its caPacity as a supplier of utility service to the corporation. 2.3 The directors, officers and employees of the corporation shall be indemnified by the corporation as provided for in Article XVof the By-Laws and shall not be personally liable to any member for any loss or damage incurred by any member as a result of any action or failure to act, except as a result of any action or failure to act which would preclude indemnification under said Article XV on the part of the corporation. 2.4 The appropriate member or members shall be obligated to indemnify the corporation and hold harmless the corporation in the manner set forth below for the corporation indemnifications under Article XV of the By-Lawsand for all claims arising out of~the operations of the corporation when a member or members' underground facilities give rise to the claims asserted. MEMBERSHIP AGREEMENT = JULIE, INC. April 18, 1990 AMENDED - APRIL 11, 1990 PAGE 3 2.4.1 Each member whose underground facilities gave rise to the claims asserted for which indemnification and hold harmless protection is sought shall provide indemnification and hold harmless protection sought by the corporation in the ratios set forth in Section 2.6. 2.4.2 If no members' underground facilities give rise to the claims asserted, then all members shall provide the indemnification and hold harmless protection sought by the corporation in the ratios set forth in Section 2.6. 2.4.3 If any member fails to fulfill its obligation under Sections 2.4.1 or 2.4.2 then the remaining members whose underground facilities gave rise to the claim asserted for which indemnification is sought shall be responsible for that obligation in the ratios set forth in Section 2.6, provided, such remaining members shall have the right to pursue at law, equity and otherwise all available remedies (including but not limited to, by way of subrogation the corporation's right to indemnification under this section 2.4) to enforce the obligation of the failing member to the extent that said remaining members have paid amounts in excess of their obligations under Sections 2.4.1 and 2.4.2. 2.5 In the event that a dispute arises among the members as to which underground facilities give rise to the claims asserted within the meaning of Section 2.4, then the remaining members whose underground facilities gave rise to the claim asserted shall be responsible for the obligation to indemnify under Section 2.4 in the ratios set forth in Section 2.6 or if there is no remaining member then all members shall be responsible for that obligation in the ratios set forth in Section 2.6, provided, that such remaining members or all members shall have the right to pursue at law, equity or otherwise all available remedies (including but not limited to, byway of subrogation the corporation's rights MEMBERSHIP AGREEMENT = JULIE, INC. April 18, 1990 AMENDED - APRIL 11, 1990 PAGE 4 to indemnification under SectiOn 2.4) to enforce the obligation of the allegedly failing member to the extent that the remaining members have paid amounts in excess of their obligations under Section 2.4. 2.6 The votes of each member (determined in accordance with ARTICLE III. Members, SECTION 3. Voting Rights, of the By-Laws, and made a part of this Agreement) as of the time of the incident which is the subject matter of a claim shall be used to determine the ratios set forth in this section. The ratio for each member shall be a fraction the numerator of which is his vote as determined in the prior paragraph and the denominator of which is the sum of the votes of all members who are providing indemnity. (For instance, in the prior paragraph if there are three members providing indemnity and two are entitled to cast 50,000 votes each and one 25,000 the respective fractions would be 50,000, 50,000 and 25,000, or 2, 2, and 1 125,000, 125,000 125,000 5 5 5 2.7 Upon receiving indemnification in accordance with section 2.4 and section 2.5 from one or more members, the corporation shall be obligated to assign to them and they shall be subrogated to the corporation's right to indemnification from the member or members who fail or allegedly fail to given indemnification. ARTICLE III 3.1 Each member shall secure and maintain in force during the term of this Agreement Comprehensive General Liability Insurance, including Contractual Liability Insurance. ~uch insurance shall be in such form, in such amounts, and with such companies as are acceptable to the corporation and is in accordance MEMBERSHIP AGREEMENT = JULIE, INC. April 18, 1990 AMENDED - APRIL 11, 1990 PAGE 5 with the standards set forth in the Operating Rules and Regulations of the corporation. A certification evidencing such insurance shall be filed with the corporation before this Membership Agreement shall become effective and shall provide evidence that the policy has been endorsed to provide thirty (30) days' notice of cancellation or change thereof. Said insurance requirements may be waived at the discretion of the corporation. ARTICLE IV 4.1 This Agreement is made pursuant to and shall be governed by the laws of the State of Illinois applicable to agreements made and to be entirely performed within such State. 4.2 In the event that any provision of this Agreement or the application of such provision to any party or circumstance, shall be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to parties or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby. 4.3 No waiver at any time by any party hereto of its rights with respect to any other party, or with respect to any other matter arising in connection with this Agreement, shall be considered a waiver with respect to any other default or matter. 4.4 Any amendment to this Agreement shall be in writing and shall be made by a change in the Articles of Incorporation or By-Laws of the corporation. 4.5 Except as otherwise provided, this Agreement shall be effective as of the day and year first above written. Subject to the provisions of Section 4.6, this Agreement may b~ terminated by any member after the effective date hereof by thirty days written notice to the corporation and each member. E}fBERSHIP AGREEMENT = JULIE, INC. April 18, 1990 AMENDED - APRIL 11, 1990 PAGE 6 4.6 No termination of this Agreement, shall discharge the member of (1) any obligation it owes any other party indemnified herein by reason of any transaction, loss, cost, damage, expense or liability or, (2) any other obligation under this Agreement including but not limited to the obligation to pay its bills from the corporation, which shall occur or arise (or the circumstances, events or basis of which shall occur or arise) prior to such termination, whether the same be known or unknown at the time of such termination. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. ATTEST:JULIE, INC. ATTEST: MEMBER SECRETARY YOUR FEDERAL TAX IDENTIFICATION NO. E9998-1475-01 JULIE, INC., FEDERAL~TAX IDENTIFICATION NO. 36-2944012