2010-02RESOLUTION NO. 2010- 02
A RESOLUTION APPROVING A MUNICIPAL GAS USE TAX
COLLECTION AGREEMENT BETWEEN THE VILLAGE OF BUFFALO GROVE AND
NORTH SHORE GAS COMPANY
WHEREAS, the Village adopted Ordinance 2009 -089 enacting a Municipal Gas Use Tax
imposing a tax on gas purchased at retail for use or consumption in the Village, and;
WHEREAS, the Village has authorized the execution of an agreement with the North Shore Gas
Company to provide for the collection of the Municipal Gas Use Tax, and;
WHEREAS, the Village and North Shore Gas Company have negotiated the terms and conditions
pursuant to which North Shore Gas Company shall collect the Municipal Gas Use Tax and render other
related services.
NOW, THEREFORE, BELT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS that:
Section 1. The Municipal Gas Use Tax Collection Agreement between the Village of Buffalo
Grove, Illinois and North Shore Gas Company will begin for the gas billings beginning on or after
February 1, 2010.
Section 2. The Village Manager is authorized and directed to execute the Agreement. A copy of
said Agreement is attached hereto and made a part hereof.
AYES: 6 — Braiman, Glover, Berman, Trilling, Stone, Sussman
NAYES: 0 - None
ABSENT: 0 - None
PASSED: January 4, 2010. APPROVED: January 4, 2010.
APPROVED: /
Village President
ATTEST:
Villa Jerk
El
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CONTENTS
Clause
Page
ARTICLE I. INCORPORATION OF RECITALS ........................................ ............................... 2
ARTICLE2. DEFINITIONS ...................................................:...................... ............................... 2
ARTICLE 3. DUTIES AND RESPONSIBILITIES OF TIE CONTRACTOR ........................... 3
3.1
Tax Collection General Provisions 1 ......................... ..............................e ...............
3
3.2
Tax Collection Services .......................................................... ............................... 4
A.
`Collection From Customers .................................................... ............................... 4
B.
Review of Customer Accounts ............................................... ............................... 4
C.
Responsibility for Providing Exempt Customer List.' ....................
D., ,
Remittance
E.
Customer Payments; Collection of Tax by Municipality ...................................... 6
F.
Records and Audits .......................:.......................... ............................... 7
G.
Liability for Tax Refunds Disputes ................................. ............................... 7
H.
Amendments to Tax Ordinance . ..... ... .... 7
3.3
Standard of Performance .......:.................................... ............................... 8
3.4
Subcontracts and Assignments ........................................... ............................... 8
A.
Assignment by Contractor .......:......::.. `.:...................... .............................., g
B....
Effect of Mumcipality Consent- ........................ ........ ....... .......................... 9
C.
Assignment by the Municipality ... .... , ...................... ....... ...... 9
3:5
Confidentiality ... ........................... ........ ............................... 9
3.6
Compliance witfi'Laws ................................................. .............................10
ARTICLE4. Term .......................................................................................... .............................10
4.1
Term of Agreement ................................................................. .............................10
A.
Original Term ........................ ............................... Error! Bookmark not defined.
B.
Extension ................................................ ............................... ...........................1010
ARTICLE 5. COMPENSATION ................................................................... .............................11
ARTICLE6. DISPUTES ................................................................................ .............................11
ARTICLE 7. REPRESENTATIONS AND WARRANTIES ......................... .............................11
7.1
Contractor's Representations and Warranties ......................... .............................11
A.
Ability to Perform ................................................................... .............................11
B.
Agreement Feasible ................................................................ .............................11
7.2
Municipality's Representations and Warranties ..................... .............................12
ARTICLE 8. EVENTS OF DEFAULT AND REMEDIES ........................... .............................12
8.1
Events of Default .................................................................... .............................12
A.
Contractor Events of Default Defined .................................... .............................12
B.
Municipality Events of Default Defined ................................. .............................12
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CON'T'ENTS
Clause Page
C. Declaration of Default ............................................................. .............................13
8.2 Remedies ................................................................................. .............................13
A. Municipality Remedies Defined ............................................. .............................13
B. Contractor Remedies Defined ................................................. .............................13
C. Remedies Nonexclusive .......................................................... .............................14
8.3 Absolute. Right to Terminate ................................................... .............................14
A.
Municipality ...............................................................:............ .............................14
B. -
Contractor ...........14
ARTICLE 9.
GENERAL CONDITIONS ................................................... .............................15
9.1
Entire Agreement .......... ...•................ ...............................
A.
General :.....:..............................:.............................. .........:.....................
....15 ,•:
B.* .:
: ,.No Collateral, Agreements ...................................................... .............................15
, .. • .,
.9.2' `
; Gounterparts .. ........................ ................ :.............. ,............:... :..
....15'
.A mendments ....... . .................................................. ... ...............................
.15'
9 4
: Governing1aw and Jurisdiction ............................... ...............................
....15. i
9,5
Severability ............ .. ... ............... .. .................... ... ...............
16..
Interpretation...... ........ ....... .......................... ...............................
�9,7.
_Assigns ............. ... ......... .... ............ ...
..,..16`
.9,8-
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„ Invalid Tax or.Exemption from Tax; Responsibility for Refunds and
s
. •
Collection .....:..........................................:.............. ..:............................
. ........16.
9.9
Miscellaneous Provisions ........................................................ .............................16
9.10
Nonliability of Public Officials ............................................... .............................17
9.11
Nonliability of the Contractor's Officers, Directors, Employees and
Agents..................................................................................... .............................17
9.12
Consequential Damages .......................................................... .............................17
9.13
Limitation of Liability ............................................................. .............................17
A.
Indemnification by Contractor ................................................ .............................18
B.
Indemnification by Municipality ............................................ .............................18
C.
Indemnification by Municipality Related to Imposition of Tax ..........................18
9.14
Limitation Period on Actions .................................................. .............................18
ARTICLE10. NOTICES ................................................................................ .............................19
ARTICLE11. AUTHORITY ......................................................................... .............................19
11.1
Municipality's Authority ........................................................ .............................19
11.2
Contractor's Authority ............................................................ .............................19
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MUNICIPAL GAS USE TAX COLLECTION AGREEMENT
This Municipal Gas Use Tax Collection Agreement is entered into as of this 2) 114' of
January, 2010 ("Effective Date"), by and between North Shore Gas Company, an Illinois
corporation (the "Contractor'), and the Village of Buffalo Grove, Illinois (the "Municipality"), a
municipal corporation and home rule unit of local government existing under the Illinois
Constitution.
WHEREAS, on 12/21/2009, the Municipality adopted Ordinance No. 2009 -89 (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 on gas purchased at retail for use or consumption in the
Municipality; and ,
WHEREAS, the Municipality authorized the execution of an agreement with the
Contractor to provide for the collection of the Tax; and
WHEREAS, the Municipality and Contractor agree to incorporate by reference the Tax
Ordinance into the Agreement; and
WHEREAS, the Contractor 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
WHEREAS, 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:
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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:
"Account" means an account that a Person has with the Contractor within the
Municipality.
"Account List" means a list of every Account that includes name, premise address,
government Account indicator, and Exempt Customer indicator.
"Agreement ".:means this Municipal Gas Use Tax Collection Agreement, including 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.
"Contractor's Territory" means all the municipalities and unincorporated areas and the
contiguous territories, to them listed'in Contractor's''schedule of rates as approved by the Illinois
Commerce Commission..
"Customer" means a Person not on the Exempt Customer List who has a Customer
Account and. who uses or. consum e Gas within the Municipality.'
"Customer Account" means an Account that a Customer has with the Contractor.
"Gas" means gas delivered by Contractor to Customer.
"Customer Account List" means an Account List to which the Contractor will bill the
Tax.
"Effective Date" means the date set -forth at page one, upon which this Agreement shall
be effective.
"Exempt Customer" means a Person that is included on the Exempt Customer List.
"Exempt Customer List" means a document issued by the Municipality listing the
names and premise addresses of (i) the Municipality, (ii) Persons exempt by law from the
payment of the Tax (other than by an ordinance of the Municipality), including all federal and
state facilities, and (iii) Persons who are exempt from payment of the Tax pursuant to an
ordinance of the Municipality.
"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.
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"Municipality" means the Village of Buffalo Grove, Illinois, a municipal corporation
and home rule unit of local government existing under the Illinois Constitution..
"Municipal Code" means the Municipal Code of the Village of Buffalo-Grove as
amended from time to time.
"Person" means any individual firm, trust, estate, partnership, association, joint stock
company, joint venture, corporation, limited liability company, municipal corporation or political
subdivision of this state, or a receiver, trustee, conservator or other representative appointed by
order of any court.
"Records" means those records and accounts with respect to each Customer Account on
the Customer Account List, which are kept by the Contractor and are subject to the Contractor's
customer confidentiality policies.
"State" means the State of Illinois.
"Tax" means the Municipal Gas Use Tax provided for in Ordinance 2009 -89, as
amended.
t _ "Tax Collectibn Services" means, collectively, the services, duties and responsibilities
described in Article 3 of this Agreement and any and all work necessary to fullyperform the
services set forth the
"Tax Ordinance" has the meaning set forth in the Recitals to this Agreement.
ARTICLE 3. r
DUTIES AND RESPONSIBILITIES OF THE CONTRACTOR I
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 as detailed
in Section 3.2(A) below. The Contractor shall perform 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
partners or joint ventures 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.
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3.2 Tax Collection Services
A. Collection From Customers
The Contractor will collect the Tax payable by each Customer on the Customer Account
List 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 $0.050 per therm of Gas delivered or such amount as set
forth by ordinance per Section 3.2p below and billed by the Contractor to such Customer
Account. The Contractor will collect the Tax along with any other amounts it collects as part of
its normal billing process.
The Contractor ;will include the Tax on any bill issued to a Customer on the Customer
Customer
Account List onor after the later of February 1, 2010 or, thirty (30) days after all changes are
resolved with respect to the initial Customer Account List as described in Section 3.2(B)(2) and
the initial Exempt Customer List as' described in Section 3.2(0)(1). If the Contractor determines
at its sole discretion that the Contractor is prepared to commence Tax collection prior to the
deadline set -forth above, it may inform the Municipality of its readiness, and the Contractor and
Municipality will determine the date upon which Tax collection shall commence, such date not
to precede February 1; 2010.
B. Review of Customer Accounts
1 Municipality' Cooperation with Respect to Customer Accounts
During- =the:Term the Municipality shall cooperate with the Contractor with respect to` the
review of Customer Accounts subject to the Tax, including, but not limited to, reviewing
Customer Account Lists; as described herein.`
2. Jnitial Customer Account List
Within sixty (60) days of the Effective Date, the Contractor shall provide the
Municipality with the initial Account List. The initial Account List will: 1) designate
government Accounts with a government Account indicator to assist the Municipality in
generating the initial Exempt Customer List, and 2) default the Exempt Customer indicator to
"No" pending Municipality providing Contractor the initial Exempt Customer List pursuant to
Section 3.2(C)(1). The Municipality shall promptly review the Account List and inform the
Contractor of changes to (including additions to, deletions from or other changes to) the
Customer Account List prior to the commencement of Tax Collection Services by the
Contractor. If, prior to the commencement of the Tax Collection Services, the Municipality
informs the Contractor of changes to the Customer Account List and provides supporting
information for such changes, the Contractor shall use reasonable efforts to implement any such
changes, unless. it disputes any such changes from the Municipality, in which case it shall notify
the Municipality of the same and the Contractor and the Municipality shall use their best efforts
to promptly resolve the same.
North Shore Gas — Buffalo Grove Execution Copy
3. Changes to Customer Account List
The Municipality acknowledges that, during the Term, the Contractor will add Customer
Accounts to, delete Customer Accounts from and make other changes to the Customer Account
list as the Contractor is informed of changes related to Customer Accounts. In addition, if the
Municipality informs the Contractor of suggested changes to the Customer Account List and
provides supporting information for such changes, the Contractor shall use its reasonable efforts
to implement any such, changes, unless it disputes any such changes from the Municipality, in
which case it shall notify the Municipality of the same and the Contractor and the Municipality
shall use their best efforts to promptly resolve the same.
As a means of assisting the Municipality to confirm the accuracy of the Customer
Account Liston an ongoing basis, during the < Term,; the Contractor shall upon the Municipality's
._ written re q uest but not more fre q uentl Y than quarterly, p rovide to the Munici P ali ha current,
Customer Account List: The Municipality.shall{promptly review such Customer Account List
and inform the Contractor Of changes to. (including additions to, deletions from or other changes
to) the Customer Account List within thirty (30) days of receipt of such Customer Account List:
If the Municipality informs the Contractor of changes to the Customer Account List and provides
supporting information for such changes, the Contractor shall use reasonable efforts to
implement any such changes, unless it disputes any such changes suggested by the Municipality,
in which case it shall notify the Municipality of the same and the' Contractor and the
Municipality shall use their best efforts to promptly resolve the same.
4. Accuracy of Customer Account List
' The Municipality acknowledges that all'times during the Term; the Customer Account
-List shall be deemed complete and accurate and the Contractor in reliance thereon shall have no
responsibility or liabili ty under the terms of this Agreement related to the collection of the Tax '
from Accounts on the Customer Account List or related to the failure to collect the Tax from
Accounts not on the Customer Account List.
C. Responsibility for Providing Exempt Customer List
1. Initial Exempt Customer List
It shall be the obligation of the Municipality to provide the Contractor with the Exempt
Customer List. The Municipality shall provide the initial Exempt Customer List after
completing the review of the initial Account List pursuant to Section 3.2(3)(2) of the Agreement
and at least thirty (30) days prior to Contractor's obligation to commence the Tax Collection
Services as detailed in Section 3.2(A). Upon receipt of the Exempt Customer List by the
Contractor, the Contractor shall not include the Tax on any bill issued to a Person on the Exempt
Customer List from and after the first day of the second month following the date of receipt of
the Exempt Customer List, unless the Contractor disputes the inclusion of any Person on the
Exempt Customer List, in which case it shall notify the Municipality of the same and the
Contractor and the Municipality shall use their best efforts to promptly resolve the same. The
Municipality shall be responsible for updating the Exempt Customer List and shall promptly
notify the Contractor of any such updates as they occur.
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2. Addition of Persons to Exempt Customer List
Upon receipt of any update to the Exempt Customer List by the Contractor adding
Persons to the Exempt Customer List, which shall indicate every Account being added to the
Exempt Customer List, the Contractor shall not include the Tax on any bill issued to a Person
added to the Exempt Customer List from and after the first day of the second month following
the date of receipt of the updated Exempt Customer List, unless the Contractor disputes the
addition of any such Person to the Exempt Customer List, in which case it shall notify the
Municipality of the same and the Contractor and the Municipality shall use their best efforts to
promptly resolve the same.
3. ` Removal of Persons from Exempt Customer List
Upon-receipt of any.update to the Exempt Customer'List..bythe Contractor-removing
Persons from the Exempt Customer 11st2Vhich shall indicate''everyAccount being removed"
r from the Exempt Customer List, the: Contractor shall include the Tax on anybill issued. to- a
Person removed from the Exempt "Customer List from and, after the first day of the second month
following the date of receipt of the updated'Exempt Customer List, unless the Contractor
disputes the removal of any :such Person• from the Exempt Customer. List, in which case it shall .
notify the Municipality of the same and the Contractor and the Municipality shall. use their best
efforts to promptly resolve the same. ,
4. Accuracy of Exempt Customer List
The Municipality acknowledges that all times during`the Term, the Exempt Customer
Last shall be deemed complete,; and: accurate�and- the•.Contractor.in reliancethereon hall -have no
;responsibility or liability under" the terms of this Agreement ±related to Collecting the Tax from
Accounts on the Exempt Customer List or related to :the failure to collect the Tax from Accounts
on the Exempt Customer List.
D. Remittance
The Contractor will remit the Tax collected, based on Contractor's posting and
remittance logic and methodology, net of its Fee, to the Municipality on or before the 15th day of
the second calendar month following the calendar month in which the Tax is collected.
E. Customer Payments; Collection of Tax by Municipality
The Tax shall be due and payable by a Customer 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, provided, however, that the Municipality may attempt to collect the Tax
from Accounts subject to dispute between the Municipality and the Contractor pursuant to
Section 3.2(B), but only during such period as a dispute exists between the Municipality and the
Contractor related to such Accounts and, provided, further, that the Municipality shall assume all
liability related to the collection of the Tax from such Accounts and the Contractor shall have no
responsibility or liability under the terms of this Agreement related to the collection of the Tax
from such Accounts or related to the failure to collect the Tax from such Accounts. In the event
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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.
F. Records and Audits
L Records
The Contractor shall use good faith efforts to 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.
Any Records maintained under this Agreement shall`be retained by the Contractor fora .
three-year 'penod Also,, Records in existence at the time of terinination of this Agreement shall
be retained for a period of three years from the creation, of such Records..
" `'Any Records'transmitted, disclosed or otherwise made available 'to the 1Viunicipality
pursuant to this Agreement shall not include identifying information pertaining to the Customer.
2. Audits
The Contractor shall keep the Records open to reasonable audit; inspection, copying and "
abstracting by the Municipality afreasonable times, at-the'Municipality's expense (which shall
include reimbursement of all costs of the .Contractor related to any such audit, inspection,
copying or abstracting) aria subject to the Contractor's customer con 60
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a,•_ G..Ow, Liability for Tax Refunds, Disputes'
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Liability for the Tax shall rest exclusively with the Customer. The Contractor shall not
be liable to remit any Tax not actually collected. To the extent a subcontractor or assignee that
collects the Tax pursuant to this Agreement is required to transfer the amount of the Tax
collected to the Contractor for remittance to the Municipality, the Contractor is responsible for
remitting to the Municipality only that portion of the Tax actually received by the Contractor
from the subcontractor or assignee.
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. The foregoing shall not limit the
Contractor's ability to refund the Tax in such cases where the Contractor reasonably determines
that a refund is appropriate.
H. Amendments to Tax Ordinance
. In the event that the Tax Ordinance is amended, the Municipality shall provide written
notice to the Contractor within fourteen (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
North Shore Gas — Buffalo Grove Execution Copy
the Tag at the new rate with respect to bills issued for a Customer Account on or after: (i) the
effective date of the new rate of the Tax pursuant to the amended ordinance, which shall be the
first day of a calendar month; or (ii) the first day of the calendar month following that date which
is three months after the date on which the amended ordinance is passed, whichever is later.
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 public utility performing services of a scope, purpose and
magnitude comparable with the Tax Collection Services.
3.4 Subcontracts and Assignments
A. Assignment by Contractor
1. Merger or Asset Sale
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, transferor conveyance of altor- substantially all of the Contractor's assets.'
2. Collection Agencies
The Contractor, may, without the consent of the - Municipality, subcontract, assignor
delegate all or any portion of the Tax" jUiectiod&rvices to .one or pore affiliates, collection"
agencies oraaw:frms in the ordinary` course of the; Contractor's bpsiness and consistent with the
requirements "
of this A eement. Furthermore, the Contractor may, without the consent of the
Municipality, permit any of its authorized agents listed on the. Contractor's published "Dfrectoiylf
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.
3. Gas Supplier Agreements
The Contractor may enter into an agreement with a gas supplier to provide billing
services to the Contractor. In the event the Contractor enters into such an agreement with a gas
supplier, the Contractor may, at the Contractor's sole discretion, (a) continue to collect the Tax
with respect to Customers purchasing gas from the gas supplier, or (b) subcontract, assign or
delegate, without the consent of the Municipality, all or any portion of the Tax Collection
Services to the gas supplier with respect to Customers purchasing gas from the gas supplier. The
Contractor shall remain responsible for ensuring that the Tax Collection Services are performed
in accordance with the terms of this Agreement.
4. Other Assignments
Except as otherwise permitted pursuant to this Section 3.4(A), the Contractor shall not
subcontract, assign, delegate or otherwise transfer all or any part of its rights or obligations under
this Agreement without the express written consent of the Municipality, such consent not to be
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unreasonably withheld. Any attempted subcontract, assignment, delegation or transfer made
without such express written consent shall be void and of no effect.
5. Conditions of Assignment
All subcontracts or assignments permitted pursuant to this Section 3.4(A), with the
exception of transfers permitted pursuant to Section 3.4(A)(1), an affiliate under Section
3.4(A)(2) and Section 3.4(A)(3),and subcontracts or assignments that the Municipality approves
pursuant to Section 3.4(A)(4)) shall be deemed conditioned upon performance by the
subcontractor or assignee in accordance with the terms and conditions of this Agreement. If any
such subcontractor or assignee shall fail to observe or perform the terms and conditions of this
Agreement to the reasonable satisfaction of the Municipality, the Municipality shall have the
right upon written notification to require the performance of this Agreement by the Contractor
ersonall or throw an `other Munici ali a roved subcontractor or assignee.
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B. Effect of Municipality Consent
No subcontract or assignment with respect to this Agreement (with the exception of
transfers permitted pursuant to Section 3.4(A)(1) and subcontracts'or assignments that the
Municipality approves pursuant to Section 3A(A)(4)), nor any acceptance of or payment 1br, any..
Tax Collection Services by the Municipality, shall relieve the Contractor of any of its obligations .,
hereunder.
C Assignment by the Municipali ty '{
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Without the express written consent .o. _e Contractor; suci ;consent not to be
unreasonably withheld, the Municipality shall not subcontract, assign, delegate or otherwise;,
transfer all 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
To the extent allowed by the Illinois Freedom of Information Act, 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
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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. Furthermore, the Municipality acknowledges that the Contractor's obligations
pursuant to this Agreement, including its obligations to provide information or access to -
information, particularly Records, to the Municipality, are subject to the Contractor's customer
confidentiality policies. The Municipality further acknowledges that such customer
confidentiality policies may limit the Municipality's access to such information.
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. All.
collections 'shall be done in accordance with applicable law and the Municipality shall not be
liable'fdi violations -of the Fair Debt Collection Practices Act by Contractor or its Collection ' z
Agents
ARTICLE 4.
TERM
41 Original Term of Agreement x
{ _
This Agreement shall take' "dffect on` the Effective Date and shall continue untiFthree (3)
year "s'after,Tax Collection - Services commence under Section 3.2(A) (subjectto 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 pursuant to Section 3.2(A) and shall cease (unless otherwise extended
hereunder) with respect to bills issued on or after the third anniversary of the commencement of
Tax Collection Services under Section 3.2(A).
4.2 Extension
This Agreement shall automatically extend for successive one -year periods after the
original three -year term unless either parry elects to terminate this Agreement by written notice
delivered to the other parry no later than thirty (30) days prior to the end of the then current term
or this Agreement is otherwise terminated in accordance with its terms.
4.3 Expiration Pursuant to Tax Ordinance Repeal; Notice Required
Notwithstanding other provisions of this Article 4, if, pursuant to Section 5 of the Tax
Ordinance, the Municipality shall determine to repeal the Tax Ordinance, the Municipality shall
provide the Contractor with written notice at least forty -five (45) days prior to the effective date
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LAI
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of any repeal of the Tax Ordinance. Thereafter, the Contractor's duty to perform the Tax
Collections Services shall cease upon the effective date of the repeal of the Tax Ordinance.
ARTICLE 5.
COMPENSATION
As compensation for the Tax Collection Services provided hereunder, the Contractor
shall be paid a fee (the 'Tee) equal to 3% of the amount of Tax collected by the Contractor, its
subcontractors or its authorized agents and remitted in accordance with Section 3.2(C). The
Contractor shall be entitled to deduct the applicable Fee from each remittance of Tax to the
Municipality. Payment of the Fee for any. Tax actually collected and remitted to the
Municipality in accordance with Section 3.2(C), whether before or after the effective date of the
termination of this-
Agr
eement, shall be in accordance with this Article 5.
ARTICLE 6.
DISPUTES
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.
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L
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 State and is a
home rule unit of government under Section 6(a) of Article VII of said
Constitution.
(B)
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
81 % Events of Default
A Contractor Events of Default Defined
The followin gshall 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 Munici ah
(2)
the Contractor's failure to perform any of its material obligations under this
Agreement; and
(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.
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C.' Declaration of Default
1. Municipality'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 thirty (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 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 thirty (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
1 provided to the Municipality, and such decision shall be 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 invoke
any or all of the following remedies:
(1) 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 an injunction or any other appropriate equitable remedy; and/or
(3) the right to seek money damages and any 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
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(3) the right to seek money damages and any other remedies available under the law.-
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 Section 8.2(A), 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 effective date of such termination if the Tax is preempted, repealed,
or determined by a court of competent jurisdiction to be unconstitutional or otherwise invalid'.---.,r .
If the Municipality elects to terminate this Agreement under this Section 83(A);.all:Tax
Collection Services to bp.. provided hereunder shall. cease with respect to bills issued on and aftex
the effective date stated in the notice, which date shall be the first day of a calendar month'.
B: Contractor
In addition to termination pursuant to Section 8.2(B), 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:
(1) if the Illinois Commerce Commission issues an order prohibiting the Contractor
from performing all or part of the Tax Collection Services; or
(2) 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 8.3(B), 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, which date shall be the first day of a calendar month.
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9.1 Entire Agreement
A. General
0
ARTICLE 9.
GENERAL CONDITIONS
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 Municipality 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
corre%suitabili t3or meaeither art includin an y with reference o (1 the mn ctss
completeness of anyprovisions 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 i in any way affect this Agreement or °its' performance; (v) the compensation
provisions of this!* A reement, or (vi) any other matteis, whether similar to or different from chose
referred to in clatisks (i) through:(v} above, affecang`or having any connection with this s r
Agreement or the negotiation or performance hereof; fi .
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.
93 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 and venue for
litigation of all disputes shall be Lake County, Illinois.
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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 genders. 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'aad
thereof. 'All references to an person or entity shall be deemed to include an person or entity
'
. . y p ty y pe. t3' = .
succeeding to the rights, duties and obligations of such persons or entities in accordance with the
terms and conditionsof this Agreement.
i9.7, ,r, Assigns`•
All of the terms and conditions of this Agreement shall, bebinding upon and inure to the
benefit of the;parties hereto and their respective legal representatives; successors, transferees and `
assigns'
9.8 :Invalid Tax or Exemption from Tax; Responsibifity,fo Refunds andCollechon
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 from that
Customer.
In the event that any aspect of 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 Contractor 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.
In the event that any exemption from the Tax is found to be invalid or unconstitutional by
a court of competent jurisdiction, it shall be the Municipality's responsibility to collect any
amounts of the Tax then due; the Contractor shall not be responsible to collect any such amounts.
9.9 Miscellaneous Provisions
Whenever under this Agreement the Municipality by a proper authority waives the
Contractor's performance in any respect or waives a requirement or condition to either the
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Municipality's or the Contractor's performance, the waiver so granted, 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 Wonliability 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 cliarged'.personally by . s_
the Municipality or by any assignee or subcontractor of the Municipality with any liability or y y
expenses of defense or be held personally liable to them under any term or provision of
.:.Agreement or because of the Contractor's execution or attempted execution thereof or because of
any breach hereof.
9.12 Consequential Damages
Notwithstanding any other provision in this Agreement, neither the Municipality nor the
Contractor, or their respective officers, directors, employees, representatives or agents shall be
liable to the other for consequential losses or damages, including punitive or exemplary
damages, arising out of or incurred in connection with the Tax Collection Services. The
Municipality and the Contractor each hereby release each other and their subcontractors, officers,
directors, employees, representatives and agents from any such liability.
9.13 Limitation of Liability
To the fullest extent permitted by law, the cumulative maximum liability of either party
to the other with respect to claims and costs arising out of the performance or nonperformance of
the Tax Collection Services shall not exceed the amount of the Contractor's Fee paid to the
Contractor during the period which is three years prior to the date on which the Municipality
commences an action against the Contractor.
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Municipality agrees that Contractor is not a "Retail Purchaser" as derived in Section
3.65.020 of the Municipal Code, nor is Contractor a business entity required to collect and pay
the Municipal tax to the Municipality. No provisions of Section 3.65.030 of the Municipal Code
shall apply to Contractor or the services contained in this agreement. Further, Municipality
agrees the Contractor shall not be subject to the penalties set forth in Chapter 1.08 of the
Municipal Code in the event of any actual or alleged breach of this Agreement or any actual or
alleged failure to comply with any requirement of Chapter 3.65 of the Municipal Code.
9.14 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, Toss, costs and expenses, r
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 or its agents violation of applicable statutes, negligence, willful misconduct, or
intentionally tortious acts or omissions, in performing under this Agreement, as determined by a
court of`c impet6WJunsdiction. t
B. Indemnification by Municipality
The Municipality agrees to indemnify, defend and,hold hanmles&the Contractor,
including its officers, directors, agents, subcontractors, affiliates :and employees, against any !
liability; loss; costs and expenses, including, 41, costs of litigation and all reasonable attorneys':'
-
4668; :that th-6- Contractor; *cluding its officers, directors, agents, subcontractors, affiliates and `. y
ei la ees "incur `sustain or are subject to which arise from the Munici ah 's or its a ents y
P �' J p �tY g
violation df'applicable statutes, negligence; willful misconduct, or intentionally tortious acts or
omissions, under this Agreement, as determined by a court of competent jurisdiction.
C. Indemnification by Municipality Related to Imposition of Tax
The Municipality agrees to indemnify, defend and hold harmless the Contractor,
including its officers, directors, agents, subcontractors, affiliates 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, directors, agents, subcontractors, affiliates 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 any aspect of the Tax (including any
exemption from the Tax) is unconstitutional under the United States or Illinois constitutions or
otherwise invalid.
9.14 Limitation Period on Actions
No action, regardless of form, arising out of this Agreement, or alleging any breach of
this Agreement, may be brought by either the Contractor or the Municipality against the other
party more than three years after such an action accrued.
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ARTICLE 10.
NOTICES
Notices provided for herein, unless expressly provided for otherwise in this Agreement,
and except for notices to Contractor concerning customer lists under Article 3 which. shall be
sent to North Shore Gas Company, Attention: Nereida Deleon- Trinidad, CIS Support Specialist;
130 E. Randolph Drive, Chicago, Illinois 60601, NDeleon- Trinidad@integrysgroup.com, which
may be made electronically or by any efficient method, 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 follows:
11.1 Municipality's Authority
This Agreement is entered into 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 corporate policy, and the
signature of the 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.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Municipality and the Contractor have executed this Agreement
on the date first set forth above.
Village of Buffalo Grove
By: VV vu M
4
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