HomeMy WebLinkAboutORDINANCE - 2220 - 3/10/1992 - AGREEMENT, PROJECT USE/SWANCC[Chapman and Cut r]
'012192
ELK GROVE
EXTRACT OF MINUTES of the regular [adjourned,
special, or regular] public meeting of the
President and Board of Trustees of the Village of
Elk Grove, Cook and DuPage Counties, Illinois, held
at 901 Wellington Avenue in said Village at
8:00 _p.•m. , on the 10th day of March ,
1992.
The President called the meeting to order and directed
the Village Clerk to call the roll.
Upon the roll being called, the following answered
present: Joseph T. Bosslet, Ronald L. Chernick, Nancy J. Czarnik,
J. Gallitano. James P. Petri, Michael A. Tosto
The following were absent:
None
The President and Board of Trustees then discussed the
proposed financing plans of the Solid Waste Agency of Northern
Cook County (the "Agency") and considered an ordinance approving
and authorizing the execution of a project use agreement with the
Agency.
Thereupon, Nancy J. Czarnik presented,
James P. Petri explained, and there was read into the
record in full the following ordinance:
AN ORDINANCE APPROVING AND AUTHORIZING THE
EXECUTION OF A PROJECT USE AGREEMENT
(the "Ordinance"). The Ordinance in its entirety reads as
follows:
NO. 2720
AN ORDINANCE APPROVING AND AUTHORIZING THE
EXECUTION OF A PROJECT USE AGREEMENT
WHEREAS, the Village of Elk Grove, Cook and DuPage
Counties, Illinois (the "Municipality"), desires to provide an
efficient and environmentally sound system for the collection,
transportation, transfer, processing, storage, disposal, recovery
and reuse of municipal solid waste, and has determined that
providing such a system is in the best interests of the public
health, safety and welfare of the Municipality and its
inhabitants; and
WHEREAS, Article VII, Section 10 of the 1970 Constitu-
tion of the State of Illinois authorizes units of local govern-
ment to contract and associate among themselves to obtain or
share services and to exercise, combine, or transfer any power or
function, in any manner not prohibited by law or ordinance; and
WHEREAS, under that Constitutional provision, units of
local government may use their credit, revenues, and other
resources to pay costs and the service debt related to inter-
governmental activities; and
WHEREAS, the Intergovernmental Cooperation Act, as
amended, found at Ill. Rev. Stat, ch. 127, paragraph 741 et sea.
(the "Act") also authorizes units of local government to exercise
and enjoy jointly their powers, privileges or authority and to
enter into intergovernmental agreements for that purpose; and
WHEREAS, pursuant to Section 3.2 of the Act, the
Municipality, together with other member units of local govern-
ment (the "Members"), has previously entered into An Agreement
Establishing the Solid Waste Agency of Northern Cook County as a
Municipal Joint Action Agency (the "Agency Agreement"), and has
become a member of the Solid Waste Agency of Northern Cook County
(the "Agency"), in order to provide and operate an efficient and
environmentally sound municipal solid waste system; and
WHEREAS, to develop this solid waste system, the Agency
has initiated steps to acquire, construct, operate, equip and
improve a municipal solid waste project (the "Project") consist-
ing of certain construction components and financing components,
and toward such end the Agency has contracted for the preparation
of detailed design and engineering plans for the Project, has
acquired sites and options and other rights with respect to sites
for the Project and has obtained certain zoning, land use and
environmental permits; and the Agency now intends to obtain other
necessary governmental permits, to acquire additional sites or
interests in sites for the Project or to acquire options
therefor, to complete the design of the Project, to acquire
I
equipment for the Project, to construct and operate the Project,
and to do all other things necessary or desirable to acquire,
construct, operate, equip and improve the Project; and
WHEREAS, the Agency has heretofore issued it Contract
Revenue Notes, Series 1990, on May 1, 1990 (the "Prior Notes"),
to prepare for the acquisition, construction, equipping and
improvement of the Project, and has entered into separate
agreements with each of the Members, each dated as of April 16,
1990 (the "Prior Interim Agreements"), in order to provide for
the payment of principal of and interest on the Prior Notes; and
WHEREAS, the Agency will now borrow additional funds by
issuing one or more series of its contract revenue bonds (the
"Bonds") to finance the costs of planning and constructing the
Project, to purchase or pay the Prior Notes, to pay certain costs
of issuance, to provide for capitalized interest and to establish
appropriate reserves; and
WHEREAS, principal of, premium, if any, and interest on
each series of Bonds will be payable solely from (1) revenues
received by the Agency from any Members or customers (including,
without limitation, from any Project Use Agreement as defined
below); (2) revenues of the Agency derived from the operation of
the Project; (3) any amounts on hand at any time in any funds or
accounts held by the Agency or a fiduciary that are established
in the master bond resolution of the Agency (the "Bond Resolu-
tion") or any supplemental resolution of the Agency authorizing
the issuance of a series of Bonds (a "Supplemental Resolution"),
(4) bond- proceeds, (5) such other receipts of the Agency as are
permitted by the Agency Agreement, and (6) investment earnings on
the foregoing; and
WHEREAS, it is necessary and in the best interests of
the Municipality to enter into a project use agreement (the
"Project Use Agreement") with the Agency (a) in order for the
Municipality to participate in and make use of the Project as a
means of processing, storing and disposing of its municipal solid
waste and (b) so that the Agency may pay the costs of the Pro-
ject; and
WHEREAS, under the Project Use. Agreement, the Munici-
pality will agree that it will be liable to pay amounts to the
Agency which will be sufficient, when combined with the payments
of the other Members that are parties to Project Use Agreements,
to cover the costs of the Project; and
WHEREAS, the Municipality is obligated under the
Project Use Agreement to establish a solid waste disposal system,
and pledge certain revenues from the operation of such system,
all as provided in the Project Use Agreement; and
-2-
WHEREAS, the Project Use Agreement sets forth detailed
provisions and requirements regarding the collection and delivery
of the waste of the Municipality, the various payment obligations
of the Municipality and the methods of making such payments, and
certain covenants, duties and agreements of the Municipality; and
WHEREAS, the Municipality is obligated under the
Project Use Agreement to pay its respective share of the costs of
the Project without set-off or counterclaim, irrespective of
whether the Project is ever completed, made available or provided
to the Municipality and notwithstanding any suspension, inter-
ruption, interference; reduction or curtailment of the Project;
and
WHEREAS, the Project Use Agreement will not go into
effect until it has been executed by the minimum number of
Members provided by Section 13.4 of the Project Use Agreement.
NOW, THEREFORE, BE IT ORDAINED by the President and
Board of Trustees of the Village of Elk Grove, Cook and DuPage
Counties, Illinois, in the exercise of its home rule powers as
follows:
SECTION 1: That the Municipality approves the form
of the Project Use Agreement presented to it at this meeting and
the President and Village Clerk are hereby authorized and
directed to execute the Project Use Agreement, in substantially
the form attached to this Ordinance as Exhibit I and made a part
of this Ordinance, with such changes therein as shall be approved
by the persons executing such agreement.
SECTION 2: That this Ordinance shall constitute an
appropriation of the funds necessary to meet the Municipality's
obligations to make various payments under the terms of the
Project Use Agreement.
SECTION 3: That the Village Clerk shall publish a
full, true and complete copy of this Ordinance in pamphlet form,
by authority of the President and Board of Trustees.
SECTION 4: That the Village Clerk is authorized and
directed to send the following to the Executive Director of the
Agency: (1) two certified copies of this Ordinance, (2) two
certificates of publication of this Ordinance evidencing
publication of this Ordinance, and (3) two certified copies of
the minutes, or extract thereof, of the meeting at which this
Ordinance was adopted, showing the adoption of this Ordinance.
SECTION 5: That the President the Village Clerk, and
other officers or employees of the Municipality are authorized
and directed to take whatever additional steps are necessary for
the Municipality to enter into the Project Use Agreement.
-3-
SECTION 6: That all ordinances, resolutions and
orders, or parts thereof, in conflict herewith, are to the extent
of such conflict hereby superseded.
SECTION 7: That this Ordinance shall be in full
force and effect immediately upon passage, approval and
publication.
VOTE: AYES Joseph T. Bosslet, Ronald L. Chernick,
Nancy J. Czarnik, Dennis J. Gallitano, James P. Petri, Michael A. Tosto
NAYS None
ABSENT None
PASSED this 10th day of March , 1992.
APPROVED this 10th day of March 1992.
Charles J.;2.ettek,
Its PRESIDENrT ,
_.ATT., T :
Patricia S. Smith
VILLAGE CLERK
Nancy J. Czarnik moved and James P. Petri
second the motion that the Ordinance as presented be adopted.
After discussion thereof, the President directed that
the roll be called for a vote upon the motion to adopt such
ordinance.
Upon the roll being called, the following persons voted
AYE:
Joseph T. Bosslet, Ronald L. Chernick, Nancy J. Czarnik,
Dennis J. Gallitano, James P. Petri, Michael A. Tosto
and the following voted NAY:
WHEREUPON, the President declared the motion carried
and the ordinance adopted, and henceforth did approve and sign
the same in open meeting, and did direct the Village Clerk to
record the same in full in the records of the President and Board
of Trustees of the Village of Elk Grove, Cook and DuPage
Counties, Illinois.
adjourned.
Other business was duly transacted at said meeting.
Upon motion duly made and carried, the meeting
-5-
Village Clerk
STATE OF ILLINOIS )
) SS
COUNTY OF Cook & DuPage )
CERTIFICATION OF MINUTES, ORDINANCE AND PUBLICATION
IN PAMPHLET FORM
1, the undersigned, do hereby certify that I am the duly qualified and acting
Village Clerk of the Village of Elk Grove, Cook and DuPage Counties, Illinois (the
"Municipality"), and as such official I am the keeper of the official journal of
proceedings, books, records, minutes and files of the Municipality and the President and
Board of Trustees (the "Corporate Authorities") thereof.
I do further certify that the foregoing is a full, true and complete
transcript of that portion of the minutes of the meeting of the Corporate Authorities
held on the 10th day of March , 1992 insofar as the same relates to the
adoption of an ordinance entitled:
AN ORDINANCE APPROVING AND AUTHORIZING THE
EXECUTION OF A PROJECT USE AGREEMENT
(the "Ordinance") a true, correct and complete copy of which Ordinance as adopted at
said meeting appears in the foregoing transcript of the minutes of said meeting.
I do further certify that the deliberations of the Corporate Authorities on
the adoption of the Ordinance were taken openly; that the vote on the adoption of the
Ordinance was taken openly; that said meeting was held at a specified time and place
convenient to the public; that notice of said meeting was duly given to all newspapers,
radio or television stations and other news media requesting such notice; and that said
meeting was called and held in strict compliance with the provisions of the Open Meet-
ings Act of the State of Illinois, as amended, and the Illinois Municipal Code, as amended,
and that the Corporate Authorities have complied with all of the provisions of said Act
and said Code and with all of the procedural rules of the Corporate Authorities in the
adoption of the Ordinance.
I do further certify that on the 12th day of March , 1992 there
was published in pamphlet form, by authority of the Corporate Authorities, a true,
correct and complete copy of the Ordinance and that the Ordinance as so published was
on said date readily available for public inspection and distribution, in sufficient number
to meet the needs of the general public, at my office as Village Clerk located in the
Village.
IN WITNESS WHEREOF I hereunto affix my official signature and the seal
of the Village this 12th day of March 1992.
Village Clerk
uuser/litrwo/727792-e/04/012192
�ECEIVto
MAR 3 1 1992
VILLAGE MANAGER'S OFFICE
PROJECT USE
by and between
SOLID WASTE AGENCY OF
NORTHERN COOK COUNTY
and
iiECEIVED
MAR 3 1 1992
VIUAGE CLERn OFFICE
EcEIvED
JUL 3 11992
VILLAGE MANAGER'S OFFICE
VILLAGE OF ELK GROVE VILLAGE,
ILLINOIS
Dated: March 25, 1992
2.1.
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
2.8.
2.9.
2.10.
2.11.
2.12.
2.13.
2.14.
2.15.
2.16.
2.17.
2.18.
2.19.
2.20.
2.21.
2.22.
2.23.
2.24.
2.25.
2.26.
2.27.
2.28.
2.29.
2.30.
2.31.
2.32.
2.33.
2.34.
2.35.
2.36.
2.37.
2.38.
2.39.
TABLE OF CONTENTS
ARTICLE I
RECITALS
ARTICLE II
DEFINITIONS
"Act" . . . . . . . . .
"Agency" . . . . . . . .
"Agency Agreement" . . .
"Agency Obligations" . .
"Agency Waste" . . . . .
"Agreement" . . . . . . .
"Balefill" . . . . . . .
"Board" . . . . . . . . .
"Components" . . . . . .
"Construction Components"
"Costs of Construction" .
"Customer Waste" . . . .
"Deficiency" . . . . . .
"Deficiency Charge" . . .
"Deficiency Factor" . . .
"Deposit" . . . . . . . .
"Engineer" . . . . . . .
"Excess Waste" . . . . .
"Excessive Use Charge" .
"Expected Agency Waste" .
"Expected Financing Member
"Financing Components"
"Financing Expenses"
"Financing Member" .
"Financing Member Delivery Date"
"Financing Member System Waste" .
"Financing Member Waste System" .
"Fiscal Year" . . . . . . . . . .
"Fixed Costs" . . . . . . . . . .
"Future User" . . . .
"Independent Financial Consultant"
"Inflation Adjustment" . . . . .
"Initial User" . . . . . . . . .
"Interim Costs" . . . . . .
"Landscape Waste Facility" . . .
"Majority Service Date" . . . . .
"Master Bond Resolution" . . . .
"Operation and Maintenance Costs"
"Phase 1 Deficiency" . . . . . .
System Waste"
-i-
Paae
2
2
2
2
2
2
3
3
3
3
3
4
4
4
4
4
4
5
5
5
5
5
5
5
5
6
6
6
6
6
6
6
6
6
6
40.
"Prior Notes" . . . . . . . . . . . . . . . . 7
41.
"Prior Notes Refundings" . . . . . . . . . . . . . 7
42.
"Project" . . . . . . . . . . . . . . . . . . . . 7
43.
"Project Budget" . . . . . . . . . . . . . . . . . 7
44.
"Required Work" . . . . . . . . . . . . . 7
45.
"Rolling Meadows Transfer Station" . . . . . . . . 7
46.
"Subsequent Phase I Deficiency" . . . . . . . . . . 7
47.
"Supplemental Bond Resolution" . . . . . . . . . . 7
48.
"Transfer Station" . . . . . . . . . . . . . . . 7
49.
"Third Transfer Station" . . . . . . . . . . . . . 7
50.
"Trustee" . . . . . . . . . . . . . . . . . . . . . 8
51.
"Waste" . . . . . . . . . . . . . . . . . . 8
52.
"Wheeling Township Transfer Station" . . . . . . . 8
ARTICLE III
EXPECTED FINANCING MEMBER SYSTEM WASTE
3.1. Determinations of Expected Financing Member
System Waste and Deficiency Factor . . . . . 8
3.2. Reasonableness of Expected Financing Member
System Waste and Deficiency Factor . . . . . . . 9
3.3. Commitment to Deliver Financing Member
System Waste . . . . . . . . . . . . . . . . . 9
3.4. Payment Obligation . . . . . . . . . . . . . . . . 9
ARTICLE IV
AGENCY UNDERTAKING REGARDING THE PROJECT
4.1. Undertaking Regarding the Project . . . . . . . . . 9
4.2. Contingency of Agency Undertaking . . . . . . . 10
ARTICLE V
PROCEDURE FOR ISSUING AGENCY OBLIGATIONS
5.1. Determination to Issue . . . . . . . . . . . . . . 11
5.2. Engineer' s Report . . . . . . . . . . . . . . . . . 11
5.3. Costs Within Estimate . . . . . . . . . . . . . 11
5.4. Costs Within 125& of Estimate . . . . . . . . . . . 11
5.5. Costs in Excess of 125% of Estimate . . . . . . . . 12
5.6. Cumulation . . . . . . . . . . . . . . . . . . . . 12
5.7 Interim Costs . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI
COLLECTION AND DELIVERY OF
WASTE TO TRANSFER STATIONS
6.1. Financing Member Waste System . . . . . . . . . . . 12
6.2. Title to Waste . . . . . . . . . . . . . . . . . . 13
6.3. Weighing of Waste . . . . . . . . . . . . . . . . . 13
6.4. Record of Waste . . . . . . . . . . . . . . . . . . 13
6.5. Alternate Measurement . . . . . . . . . . . . . . . 13
ARTICLE VII
PAYMENT OBLIGATION
7.1. Sufficiency of Amounts to be Paid . . . . . . . . . 13
7.2. Operation and Maintenance Costs . . . . . . . . . . 13
7.3. Fixed Costs . . . . . . . . . . . . . . . . . . . . 13
7.4. Excessive Use Charge . . . . . . . . . . . . . . . 14
7.5. Deficiency Charge . . . . . . . . . . . . . . 14
7.6. Obligations upon Withdrawal . . . . . . . . . . . . 15
ARTICLE VIII
PAYMENT MECHANISM
8.1.
Project Budget . . . . . . . . . . . . . . . . .
. 16
8.2.
Bills . . . . . .16
8.3.
Time of Payment; Late Charges
16
8.4.
Interest on Overdue Amounts . . . . . . . . . . .
. 16
8.5.
Reservation of Remedies . . . . . . . . . . . . .
. 16
8.6.
Partial Payments . . . . . . . . . . . . . . ...
17
8.7.
Nature of Obligation . . . . .
. 17
8.8.
Payments from Revenues of Financing Member
Waste System . . . . . . . . . . .
. 17
8.9.
Deficiency Charge Payment of Home -Rule Units as
General Obligation . . . . . . . . . . . .
. 17
8.10.
Payments from Operation and Maintenance Account .
. 17
8.11.
Payments from Non -Waste System Revenue . . . . .
. 18
8.12.
Budgets and Bills as Estimates . . . . . . . . .
. 18
8.13.
Disputes . . . . . . . . . . . . . . . . . . . .
. 19
8.14.
Pledge . . . . . . . . . . . . . . . . . . . . . .
. 20
ARTICLE IX
AGENCY COVENANTS
9.1. Covenants Regarding the Project . . . . . . . . . . 20
ARTICLE X
FINANCING MEMBER COVENANTS
10.1.
Financing Member Waste System . . . . . . .
. . 21
10.2.
Rules and Regulations of Financing Member
. . . . . . 28
13.3.
Waste System . . . . . . . . . .
. . 21
10.3.
Enforcement of Rules and Regulations . . . . .
. . 21
10.4.
Financial Covenant . . . . . . . . . . . . . .
. . 21
10.5.
Segregation of Revenue . . . . . . . . . . .
. . 22
10.6.
Payments from Financing Member Waste System . .
. . 22
10.7.
Books and Accounts . . . . . . . . . . . . . .
. . 22
10.8.
Budget Adoption . . . . . .
. . 22
10.9.
Financing Member Obligations Subordinate . . .
. . 22
10.10.
Tax Matters . . . . . . . . . . . . .
. . 22
10.11.
Financing Member Waste System Ordinance . . . .
. . 24
10.12.
No Competition with Financing Member
Waste System . . . . . . . . . . . . . . . .
. . 25
ARTICLE XI
RECYCLING INCENTIVE
11.1. Recycling Incentive . . . . . . . . . . . . . . . . 25
ARTICLE XII
DEFAULTS AND REMEDIES
12.1. Financing Member Defaults . . . . . . . . 26
12.2. Agency Remedies in Event of Financing
Member Default . . . . . . . . . . . . 26
12.3. Defaulting Financing Member Obligations
Continue to Accrue . . . . . . . . . . . . . . . 26
12.4. Agency Defaults . . . . . . . . . . . . . . 27
12.5. Financing Member Remedies in Event of Agency
Default . . . . . . . . . . . . . . . . . . . . . 27
12.6. Force Majeure . . . . . . . . . . . . . . . . . . . 27
ARTICLE XIII
MISCELLANEOUS
13.1.
Distribution of Reports . . . . . . . .
. . . . . . 28
13.2.
Term . . . . . . . . . . . . . . . .
. . . . . . 28
13.3.
Effective Date . . . . . . . . . . . .
. . . . . . 28
13.4.
Financing Member Reports . . . . . . .
. . . . . . 28
13.5.
Agency Reports . . . . . . . . . . . .
. . . . . . 29
13.6.
Assignment . . . . . . . . . . . . . .
. . . . . . 29
-iv-
13.7.
Cooperation . . . . . . . . . . . . . .
. . . . . . 30
13.8.
Notices . . . . . . . . . . . . . . . .
. . . . . . 30
13.9.
Amendment . . . . . . . . . . . . . .
. . . . . . 31
13.10.
Severability . . . . . . . . . . . . .
. . . . . . 31
13.11.
Waiver . . . . . . . . . . . . . . . .
. . . . . . 31
13.12.
Governing Law . . . .
. . . . 31
13.13.
Local Government Financial Planning
and Supervision Act . . . . . . . . .
. . . . . . 31
EXHIBIT
A Initial Users
EXHIBIT
B Financing Member Delivery Date and
Expected Financing
Member System Waste
EXHIBIT C Financing Member Waste System
EXHIBIT D Estimated Costs of Components of Project
EXHIBIT E Deficiency Factor
EXHIBIT F Formulas
am
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY
PROJECT USE AGREEMENT
THIS PROJECT USE AGREEMENT is entered into by and between
the SOLID WASTE AGENCY OF NORTHERN COOK COUNTY and the VILLAGE OF
ELK GROVE VILLAGE, ILLINOIS as of March 25, 1992.
ARTICLE I
RECITALS
1.1. Article VII, Section 10 of the 1970 Constitution of
the State of Illinois and the Act authorize "units of local
government" to contract and associate among themselves to obtain
or share services and to exercise, combine, or transfer any power
or function in any manner not prohibited by law or ordinance.
1.2. Section 3.2 of the Act authorizes any two or more
municipalities and counties as units of local government to
establish by an intergovernmental agreement a municipal joint
action agency as a municipal corporation and public body politic
and corporate in order to provide for an efficient and
environmentally sound municipal waste system.
1.3. Pursuant to this authority and the Agency Agreement,
the Agency was established. The members of the Agency consist of
twenty-six units of local government located primarily in
northern Cook County, Illinois. The Agency has been created to
establish a waste system to provide for efficient and
environmentally sound collection, transportation, transfer,
processing, treatment, storage, disposal, recovery and reuse of
municipal waste.
1.4. To develop this waste system, the Agency has initiated
steps to acquire, construct, operate, equip and improve the
Project. Toward such end, the Agency has contracted for the
preparation of detailed design and engineering plans for the
Project, has acquired sites and options and other rights with
respect to sites for the Project and has obtained certain zoning,
land use and environmental permits. The Agency now intends to
obtain other necessary governmental permits, to acquire
additional sites or interests in sites for the Project or to
acquire options therefor, to complete design of the Project, to
acquire equipment for the Project, to construct and operate the
Project, and to do all other things necessary or desirable to
acquire, construct, operate, equip and improve the Project.
1.5. In order to pay certain costs of the Project, the
Agency issued its $5,500,000 Contract Revenue and Bond
Anticipation Notes, Series 1988 on May 25, 1988, its $2,000,000
Contract Revenue and Bond Anticipation Notes, Series 1989 on
December 6, 1989 and its Prior Notes on May 1, 1990. The Agency
and each of its twenty-six members entered into separate
agreements, each dated as of April 16, 1990, in order to provide
for the payment of principal of and interest on the Prior Notes.
In order to pay the costs of the Project, including the cost of
purchasing or paying the Prior Notes and relieving the obligation
of the Financing Members to pay the costs of the Prior Notes, the
Agency and the Financing Members will enter into separate
Agreements.
1.6. Under the Agreements, each Financing Member agrees
that it will be liable to pay amounts to the Agency which
together with all amounts paid by other Financing Members will be
sufficient in the aggregate to pay the costs of the Project.
1.7. The Agency will issue Agency Obligations from time to
time to finance certain costs of the Project.
1.8. It is necessary and in the best interests of the
Financing Member and the Agency for each of them to enter into
this Agreement in order for (a) the Financing Member to
participate in and make use of the Project as a means of
processing, storing and disposing of its municipal waste and
(b) the Agency to pay the costs of the Project.
ARTICLE II
DEFINITIONS
2.1. "Act" means the Intergovernmental Cooperation Act, as
amended (Ill. Rev. Stat. ch. 127, 11 741-749 (1989)).
2.2. "Agency" means the Solid Waste Agency of Northern
Cook County.
2.3. "Agency Agreement" means An Agreement Establishing the
Solid Waste Agency of Northern Cook County as a Municipal Joint
Action Agency, dated as of May 2, 1988, as it may be amended from
time to time.
2.4. "Agency Obligatione" means all bonds, notes and other
forms of indebtedness of the Agency payable or secured in whole
or in part from revenues derived from the operation of the
Project and issued after the date hereof.
2.5. "Agency Waste" means the sum of the Financing Member
System Waste of all the Financing Members accepted by the Agency
for any Fiscal Year.
2.6. "Agreement" means this Agreement and a similar
Agreement with each of the Financing Members.
IWAN
2.7. "Balefill" means the facility which will receive waste
from one or more Transfer Stations for disposal into individually
constructed cells which is expected to be constructed by the
Agency near West Bartlett and Gifford Roads in Hanover Township
in unincorporated Cook County, Illinois as a part of the Project.
2.8. "Board" means the Board of Directors of the Agency.
2.9. "Components" means the Construction Components and the
Financing Components.
2.10. "Construction Components" means the Wheeling Township
Transfer Station, the Rolling Meadows Transfer Station, the Third
Transfer Station, the Balefill, the Landscape Waste Facility and
Required Work.
2.11. "Costs of Construction" means and shall include,
together with any other proper item of cost properly capitalized
but not specifically mentioned herein, the following costs and
expenses of the Agency in connection with or incidental to the
completion of the Project or any Construction Component:
(a) the costs and expenses for labor, equipment,
supplies and materials, and payments to contractors,
builders, suppliers and materialmen in connection with
construction and improvement (excluding any costs and
expenses described in subparagraph (c) below);
(b) the cost of contract bonds and of insurance of all
kinds that may be required or necessary during the course of
development and construction;
(c) the costs and expenses of test borings, surveys,
site investigations, the acquisition of real or personal
property or interests therein, provisions to indemnify or
secure a seller of any such property or interests therein,
demolition of any buildings or structures and other site
preparation costs necessary for development and
construction, and supervising construction, as well as the
performance of all duties required by or consequent upon
proper construction;
(d) the costs and expenses of acquiring or leasing
equipment, machinery and rolling stock to be used in
conjunction with a Construction Component or the Project,
including equipment used to transport Waste;
(e) fees and expenses for architectural, engineering,
legal and other professional services with respect to the
Project or any Construction Component during construction;
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(f) any sums required to reimburse the Agency or any
other lawfully authorized person for advances made by any of
them for any of the above items, or for any other costs incurred
and for work done by any of them, which are properly chargeable
to development and construction including, without limitation,
administrative expenses attributable to the period prior to
completion of the Project;
(g) the payment of any obligations of the Agency
(including any interest and redemption premiums) other than
the Prior Notes incurred to temporarily finance the payment
of any costs of the Project or any Component; and
(h) such other costs and expenses not specified herein
as may be necessary or incidental to development,
acquisition and construction, and operation during
construction, of all or any part of the Project or any
Construction Component, the financing thereof and the
placing of the same in use and operation.
2.12. "Customer Waste" means all waste accepted by the
Agency at a Transfer Station which is not Financing Member System
Waste of any Financing Member.
2.13. "Deficiency" means, as of the first day of any month,
the amount by which revenues, either actual or projected, are
insufficient to meet known expenses.
2.14. "Deficiency Charge" means, as of the first day of any
month, the amount determined and charged by the Agency to meet a
Deficiency and to be paid by the Financing Members.
2.15. "Deficiency Factor" means the factor used in
allocating each Financing Member's share of a Deficiency Charge
as detailed in Exhibit E to this Agreement.
2.16. "Deposit" means the deposit described in Section 8.11
of this Agreement.
2.17. "Engineer" means an engineer or engineering firm or
corporation having a favorable reputation for skill and
experience in the design and construction of solid waste transfer
stations and landfills.
2.18. "Excess Waste" means the Financing Member System
Waste which is in excess of 115% of its Expected Financing Member
System Waste for that Fiscal Year.
2.19. "Excessive Use Charge" means the charge imposed
pursuant to Section 7.4 for delivering more than 115% of Expected
Financing Member System Waste in any Fiscal Year.
SC
2.20. "Expected Agency Waste" means the sum of the Expected
Financing Member System Waste of all of the Financing Members for
the relevant Fiscal Year.
2.21. "Expected Financing Member System Waste" means the
Waste expected to be generated within the Financing Member Waste
System for any Fiscal Year, as determined under Section 3.1.
2.22. "Financing Components" means the Prior Notes
Refundings and the Interim Costs.
2.23. "Financing Expenses" means expenses related to the
issuance of Agency Obligations, including costs of issuance,
reserve funds, capitalized interest and credit enhancement fees
and expenses.
2.24. "Financing Member" means a member of the Agency which
is a party to an Agreement.
2.25. "Financing Member Delivery Date" means the date on
which the Financing Member is scheduled to commence delivering
Waste to the Agency as detailed on Exhibit B to this Agreement.
2.26. "Financing Member System Waste" means, for each
Financing Member, the Waste identified by type generated and the
geographic area or areas of such generation as defined by the
Financing Member Waste System.
2.27. "Financing Member Waste System" means, for each
Financing Member, the waste collection and transportation system
from time to time, as defined in the ordinance meeting the
requirements of Article X of this Agreement. The term Financing
Member Waste System includes all financial and physical assets of
the Financing Member Waste System. A copy of the Financing
Member's ordinance establishing such Financing Member Waste
System is attached as Exhibit C to this Agreement.
2.28. "Fiscal Year" means the fiscal year of the Agency
commencing May 1 of any year and concluding April 30 of the
following year.
2.29. "Fixed Costa" means an amount sufficient at all times
to pay all those costs of the Project which do not vary as a
function of the amount of Waste delivered to the Project,
including, but not limited to, the costs (i) to pay the principal
of and premium, if any, and interest on Agency Obligations, (ii)
to establish and maintain an environmental fund, (iii) to
establish and maintain a renewal and replacement fund, (iv) to
establish and maintain a self-insurance fund, (v) to establish
and maintain a rebate fund, (vi) to provide and maintain required
reserves related to payment of the costs enumerated in clauses
(i) through (v), (vii) to establish and maintain debt service
reserve accounts, (viii) to comply with the covenants of the
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Master Bond Resolution with respect to all costs except as they
pertain to Operation and Maintenance Costs, and (ix) to pay
reasonable capital costs and costs of service, equipment and
supply contracts necessary to carry out the corporate purposes
and powers of the Agency with respect to the Project.
2.30. "Future User" means a Financing Member not listed on
Exhibit A to this Agreement.
2.31. "Independent Financial Consultant" means an
individual or firm having a favorable reputation for skill and
experience as a financial advisor for issuers of municipal bonds.
2.32. "Inflation Adjustment" means the adjustment to the
Costs of Construction made by application of the building cost
index for the Chicago metropolitan area available through the
"Engineering News -Record."
2.33. "Initial User" means a Financing Member listed on
Exhibit A to this Agreement.
2.34. "Interim Costs" means the costs relating to (i) the
permitting, engineering and initial construction of the Balefill,
and (ii) general and administrative costs of the Agency,
including professional fees, until the Balefill is operational.
2.35. "Landscape waste Facility" means a facility to be
built by the Agency which will dispose of landscape waste.
2.36. "Majority Service Date" means the earlier to occur of
(i) the date on which at least a majority of the members of the
Agency are delivering Financing Member System Waste to a Transfer
Station, (ii) the date on which the Agency commences construction
of or makes lease payments for a second Transfer Station,'or
(iii) January 1, 1996.
2.37. "Master Bond Resolution" means the Agency's master
bond resolution, as it may be amended from time to time under
which the Agency will authorize the issuance of and issue Agency
Obligations.
2.38. "Operation and Maintenance Costs" means an amount
sufficient at all times to pay those costs of the Project which
vary as a function of the amount of Waste delivered to the
Project and do not constitute Fixed Costs.
2.39. "Phase I Deficiency" means a Deficiency which
requires the imposition of a Deficiency Charge on Financing
Members which (i) occurs prior to the Majority Service Date and
(ii) occurs with respect to a month following a month with
respect to which no Deficiency Charge has been imposed.
ME
2.40. "Prior Notes" means the Agency's $16,250,000 Contract
Revenue Notes, Series 1990, issued on May 1, 1990.
2.41. "Prior Notes Refundings" means the Financing
Component pursuant to which the Agency will refund its Prior
Notes.
2.42. "Project" means a "waste project" as defined in
Section 3.2(j)(ii) of the Act undertaken by or on behalf of the
Agency consisting of the Financing Components and the
Construction Components, which may be undertaken in any order.
2.43. "Project Budget" means the budget regarding the
Project adopted each Fiscal Year by the Agency.
2.44. "Required Work" shall mean repairs, maintenance,
renewals, replacements, improvements or betterments required by
federal or state law, a licensing or regulatory agency with
jurisdiction over the Project or any Construction Component, or
this Agreement, or otherwise determined to be necessary by a
majority of the Directors of the Board then holding office to
keep the Project or any Construction Component in good and
efficient operating condition, consistent with (1) sound
economics for the Project and the Financing Members and (2)
standards for the industry.
2.45. "Rolling Meadows Transfer Station" means the Transfer
Station expected to be constructed by the Agency at 3851 Berdnick
Street in the City of Rolling Meadows, Illinois as a part of the
Project.
2.46. "Subsequent Phase I Deficiency" means a Deficiency
which requires the imposition of a Deficiency Charge on Financing
Members which (i) occurs prior to the Majority Service Date and
(ii) occurs with respect to a month following a month with
respect to which a Deficiency Charge has been imposed.
2.47. "Supplemental Bond Resolution" means a resolution of
the Agency authorizing the issuance of Agency Obligations in
accordance with the Master Bond Resolution.
2.48. "Transfer Station" means the Wheeling Township
Transfer Station, the Rolling Meadows Transfer Station, the Third
Transfer Station or any other transfer station constructed, owned
or leased by the Agency.
2.49. "Third Transfer Station" means the Transfer Station
expected to be leased or constructed and owned by the Agency, the
location of which has not been determined by the Agency as of the
date hereof, as part of the Project.
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2.50. "Trustee" means the trustee or trustees for the
benefit of the owners of the Agency Obligations, appointed as
provided in the Master Bond Resolution.
2.51. "Waste" means garbage, general household,
institutional and commercial waste, industrial lunchroom or
office waste, and construction or demolition debris, excluding
landscape waste, which may by law and regulation be deposited at
a Transfer Station and which satisfies the Agency's requirements.
2.52. "Wheeling Township Transfer Station" means the
Transfer Station, including the flood control work and the
administrative building related thereto, expected to be
constructed by the Agency northeast of the intersection of
Central Road and Des Plaines River Road in unincorporated Cook
County, Illinois as a part of the Project.
ARTICLE III
EXPECTED FINANCING MEMBER SYSTEM WASTE
3.1. Determinations of Expected Financing Member System
Waste and Deficiency Factor. (a) The Agency and the Financing
Member have determined the Expected Financing Member System Waste
of the Financing Member as detailed in Exhibit B in order to
design the capacity of the Project. The Agency and the Financing
Member have determined the Deficiency Factor as detailed in
Exhibit E in order to allocate the default risk of the Project.
This determination is based, in part, on population and waste
estimates for each Financing Member for the year 2003. The
Agency and the Financing Member agree that the determinations
made with respect to Exhibit B and Exhibit E are fair and
equitable.
(b) The schedule of Expected Financing Member System Waste
detailed in Exhibit B will be revised annually by the Agency for
each Financing Member commencing March 1 of the first Fiscal Year
after the Financing Member Delivery Date for such Financing
Member during the term of this Agreement. These revisions shall
be effective on May 1 of each such year. The first annual
revision of the Expected Financing Member System Waste shall be
based on the actual Financing Member System Waste for the
previous Fiscal Year. The second annual revision of the Expected
Financing Member System Waste shall be based on the average of
the actual Financing Member System Waste of the Financing Member
for the two previous Fiscal Years. The revised Expected
Financing Member System Waste for each subsequent Fiscal Year
shall be based on the average of the actual Financing Member
System Waste of the Financing Member for the three years prior to
such Fiscal Year. The Agency shall determine such revisions
after consultation with the Financing Member. Such
determinations shall take into account, among other things,
partial year usage, phased -delivery as indicated on Exhibit B,
annexations, disconnections, consolidations, physical disasters
and changes in law or Agency requirements. Upon the request of
the Financing Member, the Agency may further revise the Estimated
Financing Member System Waste for the then current Fiscal Year
subsequent to the commencement of that Fiscal Year to accommodate
unforeseen circumstances such as those listed in the preceding
sentence.
3.2. Reasonableness of Expected Financing Member System
Waste and Deficiency Factor. The Financing Member acknowledges
that the determination of its Expected Financing Member System
Waste and Deficiency Factor are reasonable. The Financing Member
further acknowledges (i) that an allocation of 100% of the Fixed
Costs of the Agency among the Financing Members on the basis that
all Financing Members will deliver at least 85% of their
respective Expected Financing Member System Waste to the Agency
is an equitable method for determining its share of the Fixed
Costs of the Project and (ii) that an allocation of the default
risk of the Project among Financing Members on the basis of the
Deficiency Factor is an equitable method for sharing risk of the
Project.
3.3. Commitment to Deliver Financing Member System Waste.
From and after the Financing Member's Delivery Date through the
term of this Agreement, the Financing Member shall deliver or
cause to be delivered its Financing Member System Waste to the
Agency.
3.4. Payment Obligation. As long as Agency Obligations are
outstanding, the Financing Member shall make all payments as
required by this Agreement, without setoff or counterclaim and
irrespective of whether the Project or any Component is ever
completed, made available or provided to the Financing Member or
whether any Financing Member fails to deliver its Financing
Member System Waste, and notwithstanding any suspension,
interruption, interference, reduction or curtailment of the
Project or any Component.
ARTICLE IV
AGENCY UNDERTAKING REGARDING THE PROJECT
4.1. Undertaking Regarding the Project. On behalf of the
Financing Members, the Agency shall use its best efforts to:
(a) Construct and operate those Construction Components of
the Project which will enable it to accept for disposal all
Financing Member System Waste from and after such Waste is
scheduled to be delivered to the Agency, provided that the Agency
may construct any Construction Component or portion of the
Project in phases and may construct the various Construction
Components and portions of the Project in any order.
(b) Construct and operate the Wheeling Township Transfer
Station, make it available for acceptance of the Financing Member
System Waste of the Initial Users on their respective Financing
Member Delivery Dates and provide for disposal of the Financing
Member System Waste accepted by it.
(c) Construct and operate the Rolling Meadows Transfer
Station, make it available for acceptance of the Financing Member
System Waste of those Financing Members identified in Exhibit B
on their respective Financing Member Delivery Dates and during
the term of this Agreement and shall provide for disposal of the
Financing Member System Waste accepted by it.
(d) Provide for the Third Transfer Station, cause it to be
available for acceptance of the Financing Member System Waste of
those Financing Members identified on Exhibit B on their
respective Financing Member Delivery Dates and during the term of
this Agreement and provide for disposal of the Financing Member
System Waste accepted by it.
(e) Construct and operate the Balefill and make it
available for disposal of Financing Member System Waste accepted
at Transfer Stations.
(f) Borrow in two or more phases the sums necessary to
refund, or otherwise provide for the payment of, its Prior Notes.
(g) Borrow the sums necessary to finance the Interim Costs.
(h) Construct and operate a Landscape Waste Facility.
(i) Undertake and complete all Required Work.
(j) With respect to the Agency's undertakings in
subparagraphs (b), (c) and (d) of this Section, the Agency may
direct Financing Member System Waste to a Transfer Station other
than the one identified on Exhibit B for the Financing Member,
provided that access is provided to a Transfer Station by the
Financing Member Delivery Date as shown on Exhibit B.
4.2. Contingency of Agency Undertaking. The Agency's
obligation to initiate and complete the undertaking described in
Section 4.1 above is contingent upon the issuance of the
necessary permits by the federal, state and local governments.
In the event the Agency is unable to complete the Project or any
Component or in the event that after completion, the operation of
the Project or any Component thereof is suspended, interrupted,
interfered with, reduced or curtailed, the Agency shall use
reasonable efforts to find alternate means of disposal of the
Financing Member System Waste. Notwithstanding the Agency's
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failure to perform its obligations under this Article, the
obligation of the Financing Member to make all payments as
required by this Agreement is unconditional and irrevocable,
without setoff or counterclaim and irrespective of whether the
Project or any Component is ever completed, made available or
provided to the Financing Member or whether any Financing Member
fails to deliver its Financing Member System Waste, and
notwithstanding any suspension, interruption, interference,
reduction or curtailment of the Project or any Component.
ARTICLE V
FOR ISSUING AGENCY OBLIGATIONS
This Article provides for the procedures pursuant to which
the Agency may issue Agency Obligations to finance the Project.
5.1. Determination to Issue. Except as otherwise provided
in this Article V, the Agency, by a majority vote of the
Directors of the Board then holding office, may determine to
issue Agency Obligations to finance the various Components at
such time, in such amount, and in one or more series as is in the
best interest of the Agency. Before the issuance of Agency
Obligations, the Agency shall notify each Financing Member of its
intent to issue Agency Obligations at least 30 days prior to such
issuance.
5.2. Engineer's Report. Before issuing Agency Obligations
(for other than Financing Components, Required Work or refundings
of Agency Obligations), the Agency shall cause to be prepared an
Engineer's report estimating the cost of the Construction
Component or Components of the Project to be financed by the
proposed Agency Obligations and comparing such costs to be
financed to the estimates contained in Exhibit D.
5.3. Costs Within Estimate. If the Engineer's report
prepared pursuant to Section 5.2 estimates that the Costs of
Construction of the Construction Component to be financed by the
proposed Agency Obligations is not more than the cost as detailed
on Exhibit D, plus the Inflation Adjustment, then the Agency may
issue Agency Obligations to pay the Costs of Construction of such
Construction Component and to pay Financing Expenses with respect
to such Component, upon the approval of a majority of the
Directors of the Board then holding office.
5.4. Costs within 125% of Estimate. If the Engineer's
report prepared pursuant to Section 5.2 estimates that the Costs
of Construction of the Construction Component to be financed by
the proposed Agency Obligations is more than 100k but no more
than 1254 of the cost detailed on Exhibit D, plus the Inflation
Adjustment, then the Agency may issue Agency Obligations to pay
the Costs of Construction of such Construction Component and to
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pay Financing Expenses with respect to such Component, upon the
approval of 60% of the Directors of the Board then holding
office.
5.5. Costs in Excess of 125% of Estimate. If the
Engineer's report prepared pursuant to Section 5.2 estimates that
the Costs of Construction of the Construction Component to be
financed by the proposed Agency Obligations is more than 125% but
no more than 195% of the cost detailed on Exhibit D, plus the
Inflation Adjustment, then the Agency may issue Agency
Obligations to pay the Costs of Construction of such Construction
Component and to pay Financing Expenses with respect to such
Component, upon the approval of (i) 60% of the Directors of the
Board and (ii) the corporate authorities of 60% of the Financing
Members. Without the consent of the corporate authorities of all
of the Financing Members, the Agency shall not issue Agency
Obligations to pay any costs in excess of 195% of the Costs of
Construction of any Construction Component (except Required Work)
detailed on Exhibit D, plus the Inflation Adjustment.
5.6. Cumulation. Upon the completion of each Construction
Component (except Required Work), the Engineer shall certify the
Costs of Construction of such Construction Component. The
positive difference between the Costs of Construction of a
Construction Component described in Exhibit D, plus the Inflation
Adjustment to the date of the certificate minus the certified
Costs of Construction, may be used to increase the cost shown on
Exhibit D for another Construction Component for the purpose of
determining whether the Engineer's report delivered under Section
5.2 for that Construction Component is within the estimate for
the purpose of Section 5.3.
5.7. Interim Costs. Without the consent of the corporate
authorities of all of the Financing Members, the Agency shall not
issue Agency Obligations for Interim Costs in excess of the
estimate for Interim Costs detailed on Exhibit D, plus the
Inflation Adjustment.
ARTICLE VI
COLLECTION AND DELIVERY OF WASTE TO TRANSFER STATIONS
6.1. Financing Member Waste System. The Financing Member
has created a Waste System pursuant to Article X hereof and from
and after its Financing Member Delivery Date shall cause the
collection and delivery of its Financing Member System Waste to
the Transfer Station in accordance with the Agreement and its
ordinance adopted as required by Article X hereof. A description
of the geographic boundaries of the Financing Member Waste System
and the type of Waste included in the Financing Member Waste
System is described in Exhibit C and may not be amended without
the consent of the Agency, except the geographic boundaries
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described in Exhibit C may be amended to add any area annexed to
or remove any area disconnected from, the corporate limits of the
Financing Member.
6.2. Title to Waste. Title to Financing Member System
Waste shall pass to the Agency when it has been accepted by the
Agency at a Transfer Station.
6.3. Weighing of Waste. The Agency shall provide for and
calibrate and keep in reasonable and accurate working order a
measurement device for weighing Financing Member System Waste
delivered to any Transfer Station.
6.4. Record of Waste. The Agency shall keep daily records
of deliveries of Financing Member System Waste to the Transfer
Stations and shipment of Waste from each Transfer Station in a
form as designated in the rules and regulations of the Agency,
which records shall be available for inspection by any Financing
Member during the normal business hours of the Agency.
6.5. Alternate Measurement. In the event that the Agency
measurement device is inoperable, Financing Member System Waste
shall be measured by volume as provided by the rules and
regulations of the Agency.
ARTICLE VII
PAYMENT OBLIGATION
This Article establishes the obligation of the Financing
Member to pay its share of the costs of the Project. Formulaic
descriptions of the obligations described in this Article are
included as Exhibit F to this Agreement.
7.1. Sufficiency of Amounts to be Paid. Each Financing
Member shall pay an amount sufficient, when taken in the
aggregate, to enable the Agency to pay the Operation and
Maintenance Costs and the Fixed Costs of the Project.
7.2. Operation and Maintenance Costs. As its share of
Operation and Maintenance Costs of the Project, the Financing
Member shall pay an amount equal to the total Operation and
Maintenance Costs for the relevant Fiscal Year multiplied by a
fraction whose numerator is the Financing Member System Waste
accepted and whose denominator is Agency Waste accepted for the
relevant Fiscal Year.
7.3. Fixed Costs. (a) As its share of Fixed Costs of the
Project for any Fiscal Year during which the sum of Agency Waste
and Customer Waste is less than 855k of Expected Agency Waste, the
Financing Member shall pay an amount equal to the total Fixed
Costs for the relevant Fiscal Year multiplied by a fraction
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(i) whose numerator is the greater of (A) the Financing Member
System Waste accepted for the relevant Fiscal Year or (B) 85% of
the Expected Financing Member Waste for the relevant Fiscal Year
and (ii) whose denominator is 85% of the Expected Agency Waste
for the relevant Fiscal Year.
(b) As its share of Fixed Costs of the Project for any
Fiscal Year during which the sum of Agency Waste and Customer
Waste is greater than or equal to 85% of Expected Agency Waste,
the Financing Member shall pay an amount equal to the total Fixed
Costs for the relevant Fiscal Year multiplied by a fraction whose
numerator is the Financing Member System Waste accepted for the
relevant Fiscal Year and whose denominator is 85t of the Expected
Agency Waste for the relevant Fiscal Year.
7.4. Excessive Use Charge. In any year in which Financing
Member Waste is disposed of at the Balefill, an Excessive Use
Charge will be assessed against the Financing Member if (a) the
amount of Financing Member System Waste during any Fiscal Year
exceeds 115W of its Expected Financing Member System Waste for
that Fiscal Year and (b) the amount of Agency Waste exceeds 100%
of Expected Agency Waste for that Fiscal Year. The Excessive Use
Charge shall be an amount equal to (i) the sum of such Financing
Member's share of Operation and Maintenance Costs and Fixed Costs
for the Fiscal Year (ii) divided by ten (10). An Excessive Use
Charge will not be imposed or applicable to the Financing Member
until the fourth Fiscal Year after the Financing Member Delivery
Date.
7.5. Deficiency Charge. (a) An Initial User's share of
the Deficiency Charge from a Phase I Deficiency, if any, for each
period shall be an amount equal to the Initial User's Deficiency
Factor as shown in Exhibit E divided by the sum of the Deficiency
Factors for all Initial Users multiplied by the Deficiency Charge
for the period and multiplied by nine -tenths (9/10). A Future
User's share of the Deficiency Charge from a Phase I Deficiency,
if any, for each period shall be an amount equal to the Future
User's Deficiency Factor as shown in Exhibit E divided by the sum
of the Deficiency Factors for all Future Users multiplied by the
Deficiency Charge for the period and multiplied by one-tenth
(1/10).
(b) The Financing Member's share of Deficiency Charges from
a Subsequent Phase I Deficiency or any Deficiency subsequent to
the Majority Service Date, if any, for each period shall be an
amount equal to the Financing Member's Deficiency Factor as shown
in Exhibit E divided by the sum of the Deficiency Factors for all
Financing Members multiplied by the Deficiency Charge for the
period.
(c) In calculating the sum of the Deficiency Factors as
described above in (a) and (b) of this Section, the Agency may
exclude from any such summation the Deficiency Factor of any
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Financing Member then in default under Section 12.1(a) of its
Agreement.
(d) The Agency may, but is not required to, impose a
Deficiency Charge if it reasonably expects the related Deficiency
to be eliminated within the subsequent month of the Agency's
Fiscal Year.
(e) The total amount which the Initial User, Future User or
Financing Member is obligated to pay under this Section 7.5 for
any Fiscal Year shall not exceed the Deficiency Factor for the
Financing Member multiplied by the Fixed Costs of the Agency for
such Fiscal Year multiplied by one and one-third.
(f) The total amount which a Financing Member is obligated
to pay under Section 7.3 and Section 7.5 for any Fiscal Year
shall not exceed the greater of (i) the sum of (A) its share of
Fixed Costs payable under Section 7.3 for the Fiscal Year and (B)
one-third of the Fixed Costs of the Agency for the Fiscal Year
multiplied by the Deficiency Factor for the Financing Member, and
(ii) the Deficiency Factor for the Financing Member multiplied by
the Fixed Costs of the Agency for the Fiscal Year multiplied by
one and one-third.
7.6. Obligations upon Withdrawal. The Financing Member may
withdraw from the Agency as provided in Section 6 of the Agency
Agreement but shall remain fully obligated under this Agreement,
including, but not limited to, all payment obligations, all
obligations to deliver waste and all other performance
obligations and covenants hereunder. If the Financing Member
withdraws, it shall also be obligated to pay all Agency costs
associated with the withdrawal.
ARTICLE VIII
PAYMENT
This Article provides for the Agency to adopt a Project
Budget which will estimate the costs of the Agency for the
Project for each Fiscal Year and estimate the allocation of the
shares of those costs for each Financing Member in that Fiscal
Year. These estimated shares of certain costs will be the basis
of the annual bill, payable in equal monthly installments. The
Project Budget and the annual bill are designed for the
convenience of the Financing Member in making its financial
plans. The payment obligations of the Financing Member are
estimated by the Project Budget. Should the amounts due as
determined under Article VII be greater for any Fiscal Year than
the amount of the annual bill for the Fiscal Year, the amount due
shall be the amount determined under Article VII. Should the
amounts due as determined under Article VII be less for any
Fiscal Year than the amount of the bill, the Financing Member
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shall pay during that Fiscal Year not less than the amount of the
bill for that Fiscal Year, but shall be due a credit pursuant to
Section 8.12.
8.1. Project Budget. The Project Budget adopted each
Fiscal Year by a majority of the Directors of the Board then
holding office shall contain a statement of the estimated
expenses, including the Operation and Maintenance Costs and Fixed
Costs for that Fiscal Year, the estimated other available revenue
of the Agency from the Project, including estimated income from
customer contracts, the other revenue of the Agency to be applied
to the Project during the Fiscal Year and the amounts needed to
be paid by Financing Members to meet the expenses of the Agency
for the Project in such Fiscal Year. The Project Budget shall
also show an expected allocation of the amounts needed to be paid
by Financing Members to meet the expenses among the Financing
Members on the basis of the Expected Financing Member System
Waste to be generated during the Fiscal Year. The Agency may
amend the Project Budget at any time, provided that the Financing
Member shall receive 30 days' prior notice of the meeting at
which such amendment is to be adopted.
8.2. Bills. The Agency shall prepare and deliver to the
Financing Member not later than March 15 a statement which shall
set forth the estimated amount of the Financing Member's
obligations under this Agreement for the subsequent Fiscal Year.
The Agency shall also prepare and deliver to the Financing Member
not later than the 5th day of each month a bill for the
subsequent month, the amount of which shall be 1/12th of the
Financing Member's obligations under this Agreement as determined
in the Project Budget for the Fiscal Year and the full amount of
any Deficiency Charge and any charges imposed pursuant to
Sections 8.3 and 8.4 not determined in the Project Budget.
Revised bills reflecting amendments to the Project Budget shall
be sent to the Financing Member within 10 days of the adoption of
such amendment.
8.3. Time of Payment; Late Charges. The bill for each
month shall be paid by the Financing Member no later than the
25th day of such month. A Financing Member shall pay a late
charge of 3% on all amounts due and unpaid on the due date.
8.4. Interest on Overdue Amounts. In the event that the
Financing Member has not paid all amounts due including any late
charges by the end of the month in which they are due, the
Financing Member agrees to pay interest on all such unpaid
amounts at the rate of 1%* per month or portion of a month, which
interest shall accrue beginning with the first day of the
calendar month after the due date.
8.5. Reservation of Remedies. In addition to the right to
receive a late charge and interest as provided in this Article,
the Agency reserves all other rights and remedies it may have at
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law, in equity or under this Agreement or the Agency Agreement as
a result of any failure by the Financing Member to pay when due
all amounts payable under this Agreement. Election of any remedy
shall not be a waiver of any other remedy.
8.6. Partial Payments. Acceptance of any partial payment
shall not be deemed a waiver with respect to any amounts not
paid.
8.7. Nature of Obligation. The obligation of the Financing
Member to make all payments as required by this Agreement is
unconditional and irrevocable, without setoff or counterclaim and
irrespective of whether the Project or any Component is ever
completed, made available or provided to the Financing Member or
whether any Financing Member fails to deliver Financing Member
System Waste, and notwithstanding any suspension, interruption,
interference, reduction or curtailment of the Project or any
Component.
8.8. Payments from Revenues of Financing Member Waste
System. Except as provided in Sections 8.9 and 8.11 of this
Agreement, all payments required to be made by the Financing
Member under this Agreement shall be made from revenues to be
derived by the Financing Member from the operation of its
Financing Member Waste System. Except as provided in Section 8.9
of this Agreement, payments made by the Financing Member under
this Agreement shall not constitute an indebtedness of the
Financing Member within the meaning of any statutory or
constitutional limitation. Notwithstanding the provisions of
this Section, the Financing Member is not prohibited by this
Agreement from using any other available funds to make the
payments required by this Agreement, provided however, that the
use of any such other funds shall be made only pursuant to
Sections 8.9 or 8.11.
8.9. Deficiency Charge Payment of Home -Rule Units as
General Obligation. If the Financing Member is a home -rule unit
pursuant to Article VII of the 1970 Constitution of the State of
Illinois on the effective date of this Agreement, any Deficiency
Charge payable by the Financing Member under this Agreement is a
general obligation of the Financing Member to the prompt payment
of which its full faith and credit and its taxing power are
pledged, and unless paid from other sources, the Financing Member
shall provide for the levy of a tax on all taxable property
within the corporate limits of the Financing Member without limit
as to rate or amount so as to provide for the payment of such
obligation when due.
8.10. Payments from Operation and Maintenance Account.
The obligation of the Financing Member to make payments required
by this Agreement from revenues of its Financing Member Waste
System shall be payable from the operation and maintenance
account of its Financing Member Waste System enterprise fund and
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from all other accounts of its Financing Member Waste System fund
in which there are available funds. Except as provided in
Section 10.9, no other obligation for payment may be made against
the Financing Member Waste System.
8.11. Payments from Non -Waste System Revenue. (a) Prior
to the beginning of the Agency's Fiscal Year, the Financing
Member may choose to make payments pursuant to this Section 8.11
provided the terms of this Section 8.11 are complied with. Upon
any such election, the chief administrative officer of the
Financing Member shall provide a copy of the relevant resolution
or ordinance making such election and a certificate stating to
the reasonable satisfaction of the Agency that (A) the conditions
of this Section 8.11 are expected to be satisfied and (B) the
source of the moneys, the projected monthly cash flow and the
timing of the receipt thereof are expected to satisfy its
obligations hereunder.
(b) If pursuant to subparagraph (a) above a Financing
Member determines to use funds other than those generated from
the operation of its Financing Member Waste System, the Financing
Member shall (i) deposit in the Financing Member Waste System's
enterprise fund or a special revenue fund an amount of cash equal
to its obligation to the Agency as estimated by the Project
Budget for the next Fiscal Year or (ii) pledge and assign taxes
previously and lawfully levied but yet to be collected to the
Financing Member Waste System's enterprise fund or a special
revenue fund in an amount equal to its obligation to the Agency
as estimated by the Project Budget for the next Fiscal Year; such
levy amount to be identified as being for payment to the Agency
in the Financing Member's tax levy ordinance, appropriation
ordinance or budget ordinance. The Financing Member may also
determine to pay its obligations from any combination of (x)
funds generated from the operation of its Financing Member Waste
System, (y) any Deposit made pursuant to clause (i) of the
previous sentence and (z) a pledge and assignment of taxes made
pursuant to clause (ii) of the previous sentence. If the Project
Budget for the next Fiscal Year is not available, the Financing
Member may use the Project Budget for the current Fiscal Year to
calculate such amounts. Such amount shall be properly budgeted
and appropriated by the Financing Member from the Financing
Member Waste System's enterprise fund or special revenue fund, as
applicable, to the Agency to pay the Financing Member's payment
obligations hereunder.
8.12. Budgets and Bills as Estimates. Although it is
intended that the Project Budget will be an accurate estimate of,
and the annual bills will accurately state, the payment
obligations of the Financing Member, the payment obligations of
the Financing Member are determined by Article VII of this
Agreement. Failure by the Agency to adopt a Project Budget or to
send any bill, or inaccuracies in a Project Budget or any bill,
5".
shall not affect the obligations of the Financing Member to pay
all amounts due pursuant to Article VII. The Agency shall
calculate the actual obligations of each Financing Member for the
previous Fiscal Year within 60 days after the beginning of a
subsequent Fiscal Year. If the amount due under Article VII
exceeds the billed amount, the Financing Member shall pay to the
Agency over the four monthly payments after the actual
obligations are determined all amounts due in respect of any
difference between billed amounts and amounts actually due to the
Agency pursuant to Article VII. If the billed amount exceeds the
amount due under Article VII, the Agency shall give a credit to
the Financing Member in the subsequent Fiscal Year over the four
monthly bills after the actual obligations are determined for any
difference between the billed amount and amount actually due to
the Agency pursuant to Article VII. As long as Agency
Obligations are outstanding, the Agency shall make no cash
refunds to any Financing Member. Furthermore, in the event that
any portion of the Fixed Costs paid by a Financing Member prior
to January 1, 1996 is attributable to debt service on Agency
Obligations, such Financing Member shall receive a credit for
that portion of the Fixed Costs attributable to debt service.
The credit shall be applied against the Financing Member's
obligations to the Agency for the Fiscal Year commencing May 1,
1996. Any such credit shall be added to the Fixed Costs of the
Agency for the Fiscal Year commencing May 1, 1996.
8.13. Disputes. (a) If a Financing Member desires to
dispute all or any part of any payments under this Agreement, the
Financing Member shall nevertheless pay the full amount of any
such payment when due and include with such payment written
notification to the Agency that charges are disputed, the grounds
for dispute and the amount in dispute. Upon receipt of
notification of dispute, representatives of the Agency shall meet
with representatives of the Financing Member to resolve such
dispute. No adjustment or relief on account of any disputed
charges shall be made unless disputed charges are the subject of
such notice within the time herein specified, or within a
reasonable period from the time the Financing Member knew or
should have known of the facts giving rise to the dispute. The
Agency and the Financing Member shall promptly attempt and
continue efforts to resolve the dispute. In the event that it is
determined that the Financing Member shall have overpaid, it
shall receive a credit pursuant to Section 8.12 and in no event
shall it be entitled to setoff or counterclaim.
(b) In no event shall the Financing Member's payment or
partial payment of a bill be deemed a waiver with respect to any
claims of the Financing Member. Nor shall the Financing Member's
participation in the dispute resolution process pursuant to this
Section limit the claims, causes of actions, rights, or remedies
that the Financing Member may have at law or in equity against
the Agency under this Agreement or the Agency Agreement, nor
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shall such participation be deemed an election of remedies by the
Financing Member.
8.14. Pledge. All revenues derived by the Financing Member
from the operation of its Financing Member Waste System are
hereby pledged to the purpose of making all payments required
under this Agreement and the Agency is hereby granted a lien on
all funds now or hereafter deposited in the Financing Member
Waste System enterprise fund or any special revenue fund
described in Section 8.11(b).
ARTICLE IX
AGENCY COVENANTS
9.1. Covenants Regarding the Project. The Agency
covenants and agrees that it will:
(a) operate and maintain the Project and each Construction
Component in conformance with all laws and this Agreement;
(b) make and keep separate and proper books and accounts
with respect to the Project and cause those books and accounts to
be audited annually in accordance with generally accepted
accounting principles;
(c) operate and maintain the Project and each Construction
Component in order to be able to perform the obligation to accept
Financing Member System Waste from the Financing Member and other
Financing Members;
(d) maintain in effect and enforce the Agreement with each
of the Financing Members as required by the Master Bond
Resolution;
(e) perform all of its covenants under the Master Bond
Resolution and any Supplemental Bond Resolution, as may be
amended from time to time;
(f) issue Agency Obligations, the debt service on which
will not be includable in Fixed Costs until after December 1995;
provided, however, that Agency Obligations may be issued which
require debt service payments prior to January 1996 if the Agency
receives (i) an opinion of bond counsel that tax exemption on
Agency Obligations would otherwise be jeopardized or (ii) a
letter from an Independent Financial Consultant that market
conditions dictate that interest rates on Agency Obligations
would otherwise be materially higher;
(g) impose an equity charge under the interim project use
agreements relating to the Prior Notes only if the Agency pays
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that charge for each Financing Member from the Agency's own
funds;
(h) prior to the Majority Service Date and to the extent
permitted under the Master Bond Resolution, use any monies in the
Residual Fund (as defined and created under the Master Bond
Resolution) to reduce the Operation and Maintenance Costs and the
Fixed Costs; and
(i) enter into a contract or agreement to accept Customer
Waste only if the performance of the Agency obligations
thereunder do not impair the Agency's ability to perform its
obligations under the Agreements.
ARTICLE X
FINANCING MEMBER COVENANTS
The Financing Member covenants and agrees as follows:
10.1. Financing Member Waste System. The Financing Member
shall and shall cause each franchisee, licensee and contractor
with respect to the Financing Member Waste System to (a) maintain
and keep the Financing Member Waste System in good repair and
working order; (b) operate it efficiently and faithfully; and (c)
conform with all laws, including the Act and the rules and
regulations of the Agency as amended from time to time, this
Agreement, any agreement attached as Exhibit C to this Agreement
and its ordinance establishing the Financing Member Waste System.
10.2. Rules and Regulations of Financing Member Waste
System. The Financing Member will establish rules and
regulations for the use, operation and composition of the
Financing Member Waste System which are consistent with those
rules and regulations adopted by the Agency of which the
Financing Member has been given notice and which will enable the
Financing Member to comply with the Agency's rules and
regulations. All such rules and regulations adopted by the
Financing Member shall be filed with the Agency.
10.3. Enforcement of Rules and Regulations. The Financing
Member shall vigorously enforce the rules and regulations of its
Financing Member Waste System and its Financing Member Waste
System ordinance and any agreements attached hereto as Exhibit C
and shall diligently pursue the collection of rates and charges
from its customers.
10.4. Financial Covenant. Subject to the provisions of
Sections 8.11, the Financing Member will establish, maintain,
revise as necessary, and collect rates and charges from customers
of the Financing Member Waste System as shall be required from
time to time, together with other available funds, to produce
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revenues at least sufficient (a) to pay all amounts due under
this Agreement; (b) to pay all other costs of operation and
maintenance of the Financing Member Waste System; (c) to provide
adequate depreciation and reserve funds for the Financing Member
Waste System; and (d) to conform with the terms of all the
resolutions or ordinances authorizing issuance of bonds payable
from the revenues of the Financing Member Waste System.
10.5. Segregation of Revenue. The Financing Member will
provide for segregation of all revenues, accounts and cash
investments of the Financing Member Waste System, provided,
however, that (i) payments made pursuant to Section 8.11 need not
be so segregated, but rather only be accounted for separately and
(ii) such funds may be commingled with other funds of the
Financing Member for investment purposes.
10.6. Payments from Financing Member Waste System. The
payments required to be made by the Financing Member under this
Agreement shall be considered a portion of the operation and
maintenance costs of the Financing Member Waste System.
10.7. Books and Accounts. The Financing Member will make
and keep separate and proper books and accounts with respect to
the Financing Member Waste System and cause those books and
accounts to be audited annually in accordance with generally
accepted accounting principles.
10.8. Budget Adoption. The Financing Member will adopt a
budget or appropriation ordinance for each fiscal year in
accordance with all applicable law and provide for the payment of
all sums anticipated to be due to the Agency during the fiscal
year.
10.9. Financing Member Obligations Subordinate. Any
resolution or ordinance of the Financing Member which authorizes
the issuance after the date of this Agreement of any obligation
of the Financing Member to be paid from revenues of its Financing
Member Waste System will expressly provide that revenues of its
Financing Member Waste System may be used to pay principal of and
premium, if any, and interest on those obligations only to the
extent that those revenues exceed the amounts required to pay the
operation and maintenance expenses of its Financing Member Waste
System including, expressly, all amounts payable from time to
time under this Agreement.
10.10. Tax Matters. So long as any of Agency Obligations
are outstanding:
(a) Not more than ten percent (10U of the payments to be
made to the Agency by the Financing Member pursuant to the
Project Agreement has been or will be, directly or indirectly (i)
secured by any interest in (A) property used or to be used in any
activity carried on by any person other than a state or local
-22-
governmental unit or (B) payments in respect of such property, or
(ii) derived from payments (whether or not by the Financing
Member or to the Agency), in respect of property, or borrowed
money, used or to be used in any activity carried on by any
person other than a state or local governmental unit;
(b) No one uses or will be permitted to use more than ten
percent (10%) of the Financing Member Waste System on any basis
other than the same basis as the general public; and no person
other than a state or local governmental unit uses or will be
permitted to use the Financing Member Waste System as a result of
(i) ownership, (ii) actual or beneficial use pursuant to a lease
or a management or incentive payment contract, or (iii) any other
similar arrangement. As of the date hereof, there are no written
contracts or agreements between the Financing Member and any
person relating to the Financing Member Waste System, except
those listed on Exhibit C hereto. As of the date hereof, there
are no oral agreements or understandings between the Financing
Member and any person relating to the Financing Member Waste
System;
(c) With respect to contracts, agreements, or
understandings the Financing Member may enter into on and after
the date hereof for the collection and transportation of
Financing Member System Waste, title to the Financing Member
System Waste shall at all times remain with the Financing Member
until accepted by the Agency. All contracts, agreements or
understandings that the Financing Member may enter into with
haulers shall state that the obligations of such haulers shall
relate only to the collection and transportation of Financing
Member System Waste. Under any contracts, agreements or
understandings that the Financing Member may enter into, no
hauler shall be responsible for the disposition of any Financing
Member System Waste, except at the explicit direction of the
Financing Member;
(d) No portion of the payments to be made to the Agency by
the Financing Member pursuant to Article VII herein or any credit
enhancement or liquidity device relating to the foregoing is or
will be directly or indirectly guaranteed (in whole or in part)
by the United States (or any agency or instrumentality thereof);
(e) To the extent not prohibited by state law or pre-
existing contracts or other obligations, the Financing Member
will take all actions with respect to either (i) the use of the
Financing Member Waste System or (ii) the investment of moneys or
other property derived from the operation of the Financing Member
Waste System that may be necessary to establish and maintain the
tax-exempt status of the Agency obligations throughout the term
of the Agency obligations, including compliance with any
applicable law or regulation that may be enacted or promulgated
in the future. The Agency may from time to time deliver to the
Financing Member letters of counsel nationally recognized as
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having expertise in the area of tax-exempt bonds advising the
Financing Member of actions or inactions with respect to either
(i) the use of the Financing Member Waste System or (ii) the
investment of moneys or other property derived from the operation
of the Financing Member Waste System that may be necessary to
maintain or establish the tax-exempt status of interest payable
on Agency Obligations. Such advice may include advice to execute
supplemental agreements setting forth additional or alternate
covenants of the Financing Member; and
(f) The Financing Member need not comply with any covenant
contained in this Section 10.10, if the Financing Member obtains
an opinion addressed to the Agency and to the Financing Member of
counsel nationally recognized as having expertise in the area of
tax-exempt bonds and acceptable to the Agency to the effect that
failure to comply with such covenant will not adversely affect
the exclusion from gross income of interest on Agency
Obligations.
10.11. Financing Member Waste System Ordinance. The
Financing Member, having determined that it is in such Financing
Member's interest to do so, covenants that it has enacted and
will keep in full force and effect during the term of this
Agreement an ordinance (attached hereto as Exhibit C) which, at a
minimum, complies with subsections (a) through (j) below and if
it has any agreements attached as Exhibit C or enters into any
such agreements during the term of this Agreement, it covenants
that it has or will require, as appropriate, the other party to
any such agreement to comply with subsections (a) through (j)
below. Any such ordinance or agreement shall:
(a) establish a Financing Member Waste System pursuant to
the Act and Chapter 24, paragraphs 11-19-1 through 11-19-10 of
the Illinois Revised Statutes, as amended, for the collection,
transportation and disposal of the Financing Member System Waste;
(b) provide that such Financing Member Waste System is (or
will be at any particular time during the existence of this
Agreement) either (i) a waste disposal franchise system or
licensing system under which company or companies collect,
transport and dispose of the Financing Member System Waste, or
(ii) a municipally owned and municipally or privately operated
waste disposal system under which either the Financing Member or
a private contractor or contractors collect, transport and
dispose of the Financing Member System Waste, or (iii) a
combination of (i) and (ii);
(c) require all Financing Member System Waste to be
disposed of at a Transfer Station or at such other locations, at
such times and in such amounts as are designated by the Agency,
which method shall be the exclusive method of collection and
disposal of all of the Financing Member System Waste, all as
contemplated by this Agreement;
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(d) prohibit the delivery by or on behalf of the Financing
Member of all but Financing Member System Waste to a Transfer
Station unless otherwise agreed to by the Agency;
(e) require all haulers of Financing Member System Waste to
observe rules and regulations pertaining to operation of the
Project as promulgated by the Agency, in accordance with Section
10.1;
(f) provide for the imposition of service charges, fees and
rates upon the persons who are customers of the Financing Member
Waste System, in accordance with Section 10.4;
(g) pledge the revenues and funds of such Financing Member
Waste System to secure the obligations of the Financing Member
under the Agreement;
(h) provide for appropriate sanctions to be applied to any
persons who fail to comply with the provisions of the ordinance;
(i) require all persons generating Financing Member System
Waste to arrange for disposal of such Waste through the Financing
Member or a hauler authorized by the Financing Member; and
(j) prohibit the transportation or disposal of Financing
Member System Waste by anyone other than the Financing Member or
a hauler authorized by the Financing Member.
10.12. No Competition with Financing Member Waste Svstem.
From and after the Financing Member's Delivery Date through the
term of this Agreement, the Financing Member shall deliver or
cause to be delivered its Financing Member System Waste to the
Agency and the Financing Member and, without the written consent
of the Agency, the Financing Member shall not create, nor permit
the operation of, a waste system which competes with its
Financing Member Waste System.
ARTICLE XI
RECYCLING INCENTIVE
11.1. Recycling Incentive. The Agency will adopt rules and
regulations providing for, among other things, incentives to
maintain or increase the amount of recycling undertaken by the
Financing Member.
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ARTICLE XII
DEFAULTS AND REMEDIES
This Article sets forth the rights of the Agency in the
event that the Financing Member fails to perform its obligations
under this Agreement and the rights of the Financing Member in
the event that the Agency fails to perform its obligations under
this Agreement.
12.1. Financing Member Defaults. The following events or
conditions shall be considered defaults of the Financing Member
under this Agreement.
(a) Failure to pay when due any amounts payable under this
Agreement;
(b) Failure to pay when due any other amounts payable to
the Agency, including, but not limited to any charge imposed
pursuant to the Agency Agreement;
(c) Failure to deliver its Financing Member System Waste
required to be delivered pursuant to Section 3.3; and
(d) Failure to perform any other obligation under this
Agreement and the continuation of that failure for 30 days after
written notice from the Agency or the Trustee of such failure.
12.2. Agencv Remedies in Event of Financing Member Default.
In addition to any other remedy which may be available to the
Agency at law or in equity or under this Agreement or the Agency
Agreement, including any right to refuse to accept delivery of
Financing Member System Waste, the Agency shall have the
following remedies in the event of default by the Financing
Member:
(a) In the event of a default described in Section 12.1(a)
the Agency (and the Trustee) shall have the right to compel the
payment of any Deposit as described in Section 8.11 and to
collect the late charge and interest provided in Sections 8.3 and
8.4.
(b) In the event of a default described in Section 12.1(b),
(c) or (d), the Agency shall have the rights to mandamus and
specific performance of the Financing Member's obligations to the
extent allowed by law. Election of any remedy shall not be a
waiver of any other remedy.
12.3. Defaulting Financing Member Obligations Continue to
Accrue. In the event that the Financing Member is in default
under Section 12.1(a), the obligation of the Financing Member to
make payments under this Agreement shall continue to accrue,
notwithstanding the fact that other Financing Members may have
-26-
been billed for or may have paid shares of Deficiency Charges as
a result of the default by the Financing Member. Payment of any
amounts by the Financing Member while in default shall be applied
first to the payment of late charges, interest and overdue
amounts (in that order) until those amounts are paid in full.
The obligation to make payments of amounts in default, including
late charges and interest, shall survive beyond the term of this
Agreement until those amounts are paid.
12.4. Agency Defaults. Failure by the Agency to perform
any obligation under this Agreement and the continuation of that
failure to perform for 30 days after written notice from the
Financing Member to the Agency of such failure shall be a default
of the Agency under this Agreement, unless any such failure is
excused pursuant to Section 12.6.
12.5. Financing Member Remedies in Event of Agency Default.
(a) In the event of a default by the Agency under this Agreement,
the Financing Member may bring any action against the Agency,
including an action in equity and actions for mandamus and
specific performance of the Agency's obligations to the extent
allowed by law, but in any event, whether or not there is an
Agency default, as long as Agency Obligations are outstanding,
the Financing Member shall have no right to cancel or rescind
this Agreement, no right to withhold payments due or to become
due under this Agreement, no right to setoff or counterclaim, and
no right to recover amounts pledged and assigned as security for
the payment of Agency Obligations under this Agreement and the
Master Bond Resolution.
(b) Failure on the part of the Agency or of any Financing
Member in any instance or under any circumstance to observe or
fully perform any obligation assumed by or imposed upon it by
this Agreement shall not relieve the Financing Member from making
any payment to the Agency or fully performing any other
obligation required of it under this Agreement, but the Financing
Member may have and pursue any and all other remedies provided by
law (1) compelling performance by the Agency of any obligation
assumed by or imposed upon the Agency by this Agreement or (2)
compelling performance of any payment obligation imposed upon any
Financing Member pursuant to its Agreement.
(c) Election of any remedy shall not be a waiver of any
other remedy. The Agency will issue Agency Obligations in
specific reliance on the limitations set forth in this Section
with respect to the rights of the Financing Member.
12.6. Force Majeure. (a) The Agency shall not be in
default under this Agreement to the extent that it is prevented
from or delayed in performance of its obligations under this
Agreement by any event or condition beyond its reasonable
control, including, but not limited to, strikes or other work
stoppages, war, acts of civil or military authorities other than
_27_
the Agency, earthquakes, tornadoes, inability of the Agency to
borrow money to finance acquisition and construction of the
Project and acts of the Financing Member. If any such event
occurs, the Financing Member shall remain obligated hereunder as
described under Section 3.4.
(b) The Financing Member shall not be in default under
Section 12.1(c) or (d) to the extent it is prevented from or
delayed in performance of its obligations under this Agreement
(except for the obligation described under Section 3.4) by any
event or condition beyond its reasonable control, including, but
not limited to, strikes or other work stoppages, war, acts of
civil or military authorities other than the Financing Member,
earthquakes or tornadoes. If any such event occurs, the
Financing Member shall remain obligated hereunder as described
under Section 3.4.
ARTICLE XIII
MISCELLANEOUS
13.1. Distribution of Reports. Copies of all reports and
studies required by this Agreement shall be provided to the
Agency, the Trustee and each of the Financing Members.
13.2. Tenn. This Agreement shall have a term commencing on
the effective date and ending on the earlier to occur of (i)
December 31, 2031 or (ii) one year after the date on which 60%- of
the Directors of the Board then holding office vote to terminate
this Agreement, provided that termination pursuant to this clause
shall not become effective until Agency Obligations are no longer
outstanding for at least one year.
13.3. Effective Date. This Agreement shall become
effective only when Agreements have been executed by the Agency
and a number of members of the Agency having a population in
excess of 584,180 and this Agreement shall not become effective
if that has not occurred on or before December 31, 1992.
13.4. Financing Member Reports. (a) The Financing Member
shall provide the Agency with a copy of the Financing Member
budget prepared in accordance with Section 10.8 within 30 days
after that budget is adopted. The Agency will provide the
Financing Member an annual reminder notice to assist the
Financing Member in complying with this subsection. The budget
as so provided shall include a description and an estimate of any
revenues other than revenue from rates and charges for the
Financing Member Waste System which are to be used to make
payments under this Agreement as provided in Section 8.11.
(b) The Financing Member shall keep on file with the Agency
a copy of the Financing Member's effective rates for the
Financing Member Waste System, including any formula by which
less than 100% of the rates are billed for collection.
(c) The Financing Member shall immediately notify the
Agency of any emergency, disruption or failure of the Financing
Member Waste System or other event or condition which affects or
may affect directly or indirectly the ability of the Financing
Member to perform its obligations under this Agreement.
(d) The Financing Member shall keep on file with the Agency
the name(s) of the person(s) in charge of the operation of the
Financing Member Waste System.
(e) The Financing Member shall make available to the Agency
in timely manner all Financing Member information related to
performance of this Agreement, including, without limitation,
audits, capital improvements and prospective expansions of the
Financing Member Waste System.
(f) The Financing Member shall provide the Agency with a
copy of any Financing Member financial or management audit within
30 days of its acceptance by the Financing Member.
13.5. Agency Reports. (a) The Agency shall provide the
Financing Member with a copy of the Project Budget within 30 days
after its adoption.
(b) The Agency shall provide the Financing Member within 10
days after the end of each month with a monthly report of the
Financing Member System Waste for all Financing Members.
(c) The Agency shall immediately notify the Financing
Member of any emergency failure or malfunction of the Project or
of any other condition or event which affects or may affect
directly or indirectly the Agency's performance of its
obligations under this Agreement.
(d) The Agency shall keep the Financing Member informed of
the name(s) of the person(s) in charge of the Project.
(e) Upon written request, the Agency shall provide access
to the Financing Member all records of the Agency regarding the
Project.
(f) The Agency shall provide the Financing Member with a
copy of any Agency financial or management audit within 30 days
of its acceptance by the Agency.
13.6. Assignment. Except to the extent hereinafter
provided, neither party shall assign or transfer this Agreement
or any rights or interests herein without the written consent of
the other. The right to receive all payments which are required
to be made by the Financing Member to the Agency in accordance
-29-
with the provisions of this Agreement may be assigned by the
Agency to the Trustee as provided in the Master Bond Resolution
to secure the payment of principal of and premium, if any, and
interest on the Agency Obligations as those amounts come due,
subject to the application of those payments as may be provided
in the Master Bond Resolution. The Financing Member agrees that
it will, upon notice of assignment to the Trustee, make all
payments directly to the Trustee. The rights of the Agency to
enforce the provisions of this Agreement may be assigned to the
Trustee and, in such event, the Trustee will have the right to
enforce this Agreement at law or in equity with or without the
further consent or participation of the Agency. The Agency may
also retain the right to enforce this Agreement.
13.7. Cooperation. The Financing Member shall cooperate
with the Agency in the issuance of Agency Obligations, and the
Agency shall cooperate with the Financing Member in the issuance
of the Financing Member's general obligation bonds or revenue
bonds of its Financing Member Waste System. In such connection,
the Financing Member and the Agency will comply with all
reasonable requests of each other and will, upon request, do as
follows:
(a) Make available general and financial information about
itself;
(b) Consent to publication and distribution of its
financial information;
(c) Certify that general and financial information about it
is accurate, does not contain an untrue statement of a material
fact and does not omit to state a material fact necessary in
order to make the statements in that information, in light of the
circumstances under which they were made, not misleading;
(d) Make available certified copies of official
proceedings;
(e) Provide reasonable certifications to be used in a
transcript of closing documents; and
(f) Provide for reasonably requested opinions of counsel as
to the validity of its actions taken with respect to and the
binding effect of this Agreement, title to its Financing Member
Waste System, as applicable, pending or threatened litigation
which could materially affect its performance hereunder, and
other reasonably related opinions.
13.8. Notices. All notices, invoices and bills under this
Agreement shall be in writing except in case of emergency and
shall be delivered either in person or by first class mail, if to
the Agency at:
-30-
Solid Waste Agency of Northern Cook County
1616 East Golf Road
Des Plaines, Illinois 60016
Attention: Executive Director
and if to the Financing Member at:
Village of Elk Grove Village
901 Wellington Avenue
Elk Grove Village, IL 60007
Attention: Village Manager
or such other address as either the Agency or the Financing
Member shall designate by notice to the other. Notice shall be
considered given when delivered or 3 days after being deposited
in the mail.
13.9. Amendment. This Agreement may be amended only by
written agreement between the Agency and the Financing Member.
If the Agency pledges or assigns any of its rights under this
Agreement to the Trustee in connection with the sale, issuance
and payment of Agency Obligations, then this Agreement shall not
be terminated, revoked, amended or modified except as provided in
and permitted by the Master Bond Resolution so long as the Master
Bond Resolution is in effect.
13.10. Severability. Should any part, term or provision of
this Agreement be determined by a court of competent jurisdiction
to be illegal or in conflict with any law, the validity of the
remaining portions or provisions shall not be affected thereby.
13.11. Waiver. No action by either party to this Agreement
other than a written statement signed by the party against whom a
waiver is claimed, shall be deemed a waiver of any rights granted
by this Agreement. A waiver of rights with respect to any matter
arising under this Agreement shall not be deemed a waiver of any
other rights under this Agreement, nor a waiver of similar or
identical rights with respect to any other matter.
13.12. Governing Law. This Agreement shall be construed
under the applicable laws of the State of Illinois.
13.13. Local Government Financial Planning and Supervision
Act. Pursuant to Section 14 of the Local Government Financial
Planning and Supervision Act (111. Rev. Stat. ch. 85, 1 7214
(1989)), the parties hereby declare that the provisions of such
act do not apply to any indebtedness, obligation or liability
incurred under this Agreement.
-31-
IN WITNESS WHEREOF, the
caused this Agreement to be
names and attested by their
with their corporate seals,
written.
[SEAL]
Attest:
Secretary
Il
t
[SEAL]
Attest:
Agency and the Financing Member have
executed in their respective corporate
duly authorized officers and sealed
all as of the date first above
SOLID WASTE AGENCY OF NORTHERN
COOK COUNTY
Chairman
VILLAGE OF ELK GROVE VILLAGE,
ILLINOIS
By,
Its: Vi I la e r si t
By: �" ) "4Z --t-1 �d7ZL-y 6u, 14Z, /Z k-�Jf /i�;4r��/'
Its: Vi I lage Clerk
32-
EXHIBIT A
INITIAL USERS
Arlington Heights
Elk Grove Village
Evanston
Glenview
Kenilworth
Lincolnwood
Morton Grove
Mount Prospect
Niles
Palatine
Rclling,Meadows
Skokie
Wheeling
Wilmette
EXHTATT R
FINANCING MEMBER DELIVERY DATE AND
EXPECTED FINANCING MEMBER SYSTEM WASTE
Total 291,619
l/ Indicate if less than 100% of Expected Financing Member
System Waste will be delivered [3 year limit to phase in].
2/ The Agency reserves the right to direct Financing Member
System Waste to a Transfer Station other than the one
identified on this Exhibit, provided that access is
provided by the Delivery Date shown.
Ordinance 89-47 of the City of Rolling Meadows limits use
of the RMTS to waste from Rolling Meadows, Palatine,
Arlington Heights, Inverness, Barrington and South
Barrington. The Ordinance imposes certain other
restrictions on routes to and from the Transfer Station
which shall be complied with.
Expected
Expected Financing
Transfer
Delivery
Member System
Waste
Station
Financing Member
Date
for First
Yearl/ Designation2/
Arlington Heights
1/94
32,000
Wheeling
Twp.
Barrington
1/96
3,909
Rolling
Meadows
Buffalo Grove
5/95
18,034
Wheeling
Twp,
Elk Grove Village
11/94
14,453
Wheeling
Twp.
Evanston
1/94
22,000
Wheeling
Twp,
Glencoe
1/96
4,100
Wheeling
Twp.
Glenview
1/94
18,200
Wheeling
Twp.
Hoffman Estates
5/95
19,026
Third Transfer
Set
Inverness
9/95
4,700
Rolling
Meadows
Kenilworth
1/94
2,900
Wheeling
Twp.
Lincolnwood
1/94
5,900
Wheeling
Twp.
Morton Grove
1/94
8,640
Wheeling
Twp.
Mount Prospect
8/94
24,000
Wheeling
Twp.
Niles
1/94
8,262
Wheeling
Twp.
Palatine
1/94
24,000
Rolling
Meadows
Park Ridge
1/96
12,970
Wheeling
Twp.
Prospect Heights
5/95
3,244
Wheeling
Twp.
Rolling Meadows
1/94
6,650
Rolling
Meadows
Skokie
11/94
18,600
Wheeling
Twp.
South Barrington
10/95
1,711
Rolling
Meadows
Wheeling
1/94
13,533
Wheeling
Twp.
Wilmette
5/94
12,787
Wheeling
Twp.
Winnetka
1/96
12,000
Wheeling
Twp.
Total 291,619
l/ Indicate if less than 100% of Expected Financing Member
System Waste will be delivered [3 year limit to phase in].
2/ The Agency reserves the right to direct Financing Member
System Waste to a Transfer Station other than the one
identified on this Exhibit, provided that access is
provided by the Delivery Date shown.
Ordinance 89-47 of the City of Rolling Meadows limits use
of the RMTS to waste from Rolling Meadows, Palatine,
Arlington Heights, Inverness, Barrington and South
Barrington. The Ordinance imposes certain other
restrictions on routes to and from the Transfer Station
which shall be complied with.
EXHIBIT C
FINANCING MEMBER WASTE SYSTEM
[Attach ordinance establishing Financing Member Waste System and
any contract or agreement as described in Section 10.10(b)3
[The actual designation of, or changes in, the area of generation
of non-residential Financing Member System Waste may be made
without Agency consent prior to Financing Member Delivery Date
provided that the volume committed under Exhibit B is not
changed.]
o
Elk
Presid
Village CHARLES
CHARLES 1. ZETTEK
J.
\ i
Village Clerk
Grove
Page ICIAManager S SMITH
Village r
Village
CHARLES A. WILLIS
CHARLES
STATE OF ILLINOIS )
COUNTIES OF COOK AND DU PAGE)
SS
CERTIFICATE OF CLERK
Village Trustees
JOSEPH T. BOSSLET
RONALD L. CHERNICK
NANCY J. CZARNIK
DENNIS J. GALLITANO
JAMES P. PETRI
MICHAEL A. TOSTO
This is to certify that I, Patricia S. Smith, am the Village Clerk of the
Village of Elk Grove Village, Cook and DuPage Counties, Illinois, and as
such official am the custodian of the records and seal of said Village; and
that the attached is a true and correct copy of Ordinance No. 2221 ,
passed by the President and Board of Trustees of said Village at a meeting
duly held on the
Ordinance
10th day of
March
1992 , which
was approved by the Village President, all as appears
from the official records which are in my custody.
Witness my hand and the official seal of said Village of Elk Grove Village
this 31st day of
(SEAL)
March
, 1992
'z �_I 4-uL
Village e CuerK oT the Village of Elk ik
Grove Village, Counties of Cook and 0
DuPaoe, Illinois
901 WELLINGTON AVENUE a ELK GROVE VILLAGE, ILLINOIS 60007-3499 a TELEPHONE (708) 439-3900
ORDINANCE NO• 2221
AN ORDINANCE CREATING A MUNICIPAL WASTE SYSTEM
WHEREAS, the Village of Elk Grove Village is a member of the Solid
Waste Agency of Northern Cook County; and
WHEREAS, Agency members are obligated to enact regulations and
controls with respect to its Municipal Waste System in amendments with
the Project Use Agreement between the Village and the Agency;
NOW, THEREFORE, BE IT ORDAINED by the President and Board of
Trustees of the Village of Elk Grove Village, Counties of Cook and
DuPage, Illinois, as follows that a Municipal Waste System is hereby
adopted as follows:
Section i. Definitions.
(a) "Agency" means the Solid Waste Agency of Northern Cook County.
(b) "Municipal Waste System" means the waste collection,
transportation and disposal system of the Municipality operated under a
franchise agreement entered into pursuant to Section 4, including all
physical assets of the Municipality used for the collection,
transportation and disposal of System Waste, all amounts on deposit in
the Municipal Waste System Fund and all amounts collected on account of
rates and charges imposed under this Ordinance.
(c) "Municipality" means the Village of Elk Grove Village.
(d) "Person" means any natural individual, firm, trust, estate,
partnership, association, joint stock company, joint venture, or
corporation, or a receiver, trustee, conservator or other
representative appointed by order of any court.
(e) "Project Use Agreement" means the 1992 project use agreement
by and between the Municipality and the Agency, as amended from time to
time.
(f) "System Waste" means (1) garbage and general household waste,
(2) institutional waste, and (3) construction and demolition waste
discarded by Persons within residential zoned districts
reflected on the attached geographical service area map and further
described as single-family attached and detached dwelling units,
multi -family dwelling units, churches, hospitals and ancillary
facilities (excluding medical waste), congregate housing, library and
Village -owned municipal buildings.
System Waste does not include industrial, commercial, office
park, office transitional areas of the Village or governmental
agencies other than the Village and the Library.
Section 2. Findings.
The Municipality finds as follows:
(a) It is necessary for and in the best interests of the
Municipality to regulate and control the collection, transportation and
disposal of municipal waste in the exercise of its police power in
order to protect the health, safety and welfare of its residents; and
(b) The Municipality is authorized pursuant to Article VII,
Section 6 of the Illinois Constitution, Section 11-19-1 et seg. of
the Illinois Municipal Code, I11. Rev. Stat. ch 24, Para. 11-19-1 and
Section 3.2 of the Intergovernmental Cooperation Act, Ill. Rev. Stat.
Stat. ch 127, Para. 743.2 to provide for the method or methods of
-9-
collection, transportation and disposal of municipal waste within its
corporate limits and to provide that the method chosen may be the
exclusive method to be used within the corporate limits; and
(c) The Municipality acting pursuant to Article VII, Section 10
of the Illinois Constitution and Section 3.2 of the Intergovernmental
Cooperation Act has entered into an intergovernmental agreement with
twenty-five other north and northwest suburban Cook County
municipalities, thereby creating the Agency to provide an efficient and
environmentally sound municipal waste disposal system; and
(d) The Municipality intends to enter into a Project Use
Agreement by which the Agency will acquire, construct, operate, equip
and improve a municipal solid waste project to provide for the disposal
of System Waste of the Municipality and other members of the Agency; and
(e) Under the Project Use Agreement, the Municipality is
obligated to establish a municipal waste disposal system, to cause
System Waste collected within its corporate limits to be delivered to
the Agency, and to make certain payments to the Agency, all as
described in the Project Use Agreement; and
(f) It is necessary and in the best interests of the Municipality
to provide for the environmentally sound and efficient collection,
transportation and disposal of System Waste by creating a Municipal
Waste System, by providing for the disposal of System Waste by delivery
to the Agency and to impose the rates and charges provided for herein.
Section 3. Required Use of Municipal Waste System.
(a) All Persons owning, or occupying real estate within the
corporate limits of the Municipality shall dispose of the System Waste
_12
through the Municipal Waste System. All System Waste shall be
collected by or on behalf of the Municipality pursuant to the terms of
this Ordinance and shall be delivered to a transfer station as directed
by the Agency and theMunicipality or as otherwise agreed to by the
Agency and the Municipality under the Project Use Agreement.
(b) At any time the Health Coordinator deems it necessary to
protect the health and welfare of the Village, any waste not otherwise
prohibited by the Agency and not within the geographical service area
of the Village can be delivered to the Agency, provided that the Agency
agrees to accept such waste.
(c) No Person shall dispose of System Waste through the Municipal
Waste System unless the System Waste complies with all rules and
regulations applicable thereto and established from time to time by
either the Municipality or the Agency.
(d) Any Person disposing of System Waste through the Municipal
Waste System shall pay the rates and charges established by the
Municipality under the provisions of Section 5.
Section 4. Franchise Collection.
(a) No Person shall collect, transport or dispose of System Waste
without entering into a franchise agreement with the Village pursuant
to this Section 4. Franchise agreements may be entered into with one or
more contractors to service the defined geographical service area.
(b) All franchisees shall operate within the guidelines of
this ordinance and its franchise agreement with the Village.
(c) Any Person who has entered into a franchise agreement to
collect, transport or dispose of System Waste shall comply with the
following obligations as a condition of that franchise:
-4-
1. Comply with all the laws, ordinances, rules and
regulations pertaining to the collection,
transportation and disposal of System Waste as
may be enacted from time to time by any lawful
authority, including the State of Illinois, this
Municipality and the Agency.
2. Deliver all System Waste to the transfer station
designated by the Agency and the Municipality.
3. Maintain all equipment used to collect, transport
and dispose of System Waste in good repair and
working order and operate it efficiently and
effectively.
4. Maintain accurate books and records and make them
available to the P4unicipality upon demand.
(d) Renewal and revocation of a franchise agreement shall be as
delineated in the franchise agreement.
(e) Properties within the defined geographical service area,
reflected on the attached map, shall not be permitted to contract
for scavenger services beyond October 31, 1994. Those properties with
individual contracts include the following:
Single -Family Attached
Fox Run
Quads - Parcel C
Quads - Parcel E
East Hamptons
Elk Grove Town Estates
Elk Grove Estates Townhome Two, Parcel G
Hampton Farms Townhome Association
Hampton Farms Townhouse Association Plumber Two
Roundtree Commons
Talbot's Mill Townhomes
Multi -Family
Boardwalk Condominiums
Park Orleans Condominiums
Park Chardonnay Condominiums
Charonnday By The Lake Condominiums
Village on the Lake Condominiums
Washington Square Condominiums
Willow Woods Condominiums
Hampton Manor Apartments
-5-
Carroll Square Apartments
Eagles on Tonne Apartments
Hamilton Court Apartments
Perrie Grove Apartments -even
Perrie Grove Apartments - odd
Regency Square Apartments
Terrace Apartments
Village Grove P�partments
Churches
Ascension Lutheran Church Gethsemane Presbyterian Church
69 Grange Road 301 Ridge
Christus Victor Lutheran Prince of Peace United
Church Methodist Church
1045 S. Arlington Heights Rd. 1400 S. Arlington Heights
E1 Bethel Christian Center
777 Meacham Road
Elk Grove Baptist Church
801 Beisner Road
Elk Grove United
Presbyterian Church
600 East Elk Grove Blvd.
Queen of the Rosary Parish
750 Elk Grove Boulevard
Saint Julian Eymard Parish
601 West Siesterfield
Saint Nicholas Episcopal
Church
1071 Westview Drive
Evangelical Lutheran Church Tri -Community Church
of the Holy Spirit 1900 Nerge Road
666 Elk Grove Boulevard
First Baptist Church
590 Tonne Road
Congregate Housing
Americana Nursing Home
Hospital & Ancillary Facilities
Wesleyan Community Church
545 Landmeier Road
Alexian Brothers Medical Center and all associated facilities.
Governmental
Elk Grove Village Library
All Village -owned Municipal Buildings
Section 5. The Municipal Waste System Fund; Imposition of Rates
and Charges.
(a) There is hereby created and established an enterprise fund of
the Municipality known as the Municipal Waste System Fund. which shall
be separate and apart from all other funds and accounts of the
Municipality as provided below in subsection (g).
c
(b) Before the beginning of each fiscal year, the Village
Treasurer shall recommend and the Municipality shall adopt a budget for
the Municipal Uaste System. The budget shall estimate the revenue
required to (1) pay all operating and maintenance expenses of the
Municipal Waste System, including all obligations to the Agency under
the Project Use Agreement; (2) pay as they become due interest on and
principal of any revenue bonds or other obligations payable from the
revenues of the Municipal Waste System; (3) provide for all unpaid
claims; and (4) maintain appropriate depreciation and reserve funds,
including reserves for uncollected charges. The budget shall estimate
the amounts available to pay those obligations from (1) taxes levied
and anticipated to be collected pursuant to law; (2) other amounts
deposited in the Municipal baste System Fund; and/or (3) rates and
charges to be imposed on Persons disposing of System Waste through the
Municipal haste System.
(c) The rates and charges imposed for use of the Nunicipal I:a<_te
System shall be sufficient, after taking into account monies then on
hand in the Municipal baste System Fund, (1) to pay all operation and
maintenance expenses of the r1unicipal baste System, including all
obligations to the Agency under the terms of the Project Use Agreement,
(2) to pay as they become due interest on and principal of anv revenue
bonds or other obligations payable from revenues of the Municipal I%aste
System, (3) to provide for all unpaid claims, and (4) to provide
adequate depreciation and reserve funds for the Municipal Waste System,
including reserves for uncollected charges.
-7-
(d) The Municipality shall have the responsibility of billing and
collecting all fees in conjunction with the operation of the Municipal
Waste System.
(e) The owners and occupants of real estates within the
Municipality served by the Municipal Waste System shall be jointly and
severally liable to pay all rates and charges imposed by the
Municipality pursuant to the provisions of this Section.
(f) Charges and penalties for delinquent payments shall be as
set forth in Chapter 22A of the P'unicipal Code.
(g) All amounts collected from rates and charges imposed under
this Section shall be deposited in the Municipal Waste System Fund, and
together with all other amounts deposited in the Municipal Plaste System
Fund, shall be separate and apart from all other monies of the
Municipality, provided that amounts deposited in the Municipal Waste
System Fund may be invested together with other funds of the
Municipality.
Section 6. That this Ordinance shall be in full force and effect
from and after its passage and approval and publication according to
law.
VOTES: AYES: 6 NAYS: n
PASSED this 10th day of March
APPROVED this 10th day of March
ATTEST:
Patricia S. Smith
Village Clerk
in
ABSENT:
1992.
1992.
Charles J. Zettek
Village President
RESOLUTION NO. 62-91
A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE
CLERK TO EXECUTE AN AGREEMENT BETWEEN THE VILLAGE OF ELK
GROVE VILLAGE AND GARDEN CITY DISPOSAL COMPANY FOR SCAVENGER
SERVICE IN THE RESIDENTIAL AREA OF THE VILLAGE
NOW, THEREFORE, BE IT RESOLVED by the President and Board of Trustees
of the Village of Elk Grove Village, Counties of Cook and DuPage. State of
Illinois as follows:
Section 1: That the Village President be and is hereby authorized to
sign the attached documents marked:
Residential Scavenger Service Agreement
a copy of which is attached hereto and made a part hereof as if fully set
forth and the Village Clerk is authorized to attest said documents upon the
signature of the Village President.
Section 2: That this Resolution shall be in full force and effect
from and after its passage and approval according to law.
PASSED this 10th day of December , 1991.
APPROVED this 10th day of December , 1991.
ATTEST:
Patricia S. Smith
Village Clerk
Charles J. Zettek
Village President
• n- gxuau i• - r � • r ri • r u
For All Single Family Detached Residences
in Elk Grove Villace. Illinois
1991-1994
THIS AGREEMEM made and entered into this 10th day of
December , 1991, by and between the VILLAGE OF ELK GROVE VILLAGE, a
municipal corporation in Cook and DuPage Counties, Illinois, party of the first
part, hereinafter referred to as the VILLAGE, and Garden City Recycling and Waste
Services, a Division of Waste Management of Illinois, Inc, party of the second
part, hereinafter referred to as the CONTRACTOR.
WITNESSETH:
WHEREAS, the VILLAGE, mindful of its duties and responsibilities to protect
and maintain the public health, safety and welfare of its citizens, find it
necessary to regulate and control the collection and disposal of garbage and
rubbish from single family detached residences of the VILLAGE, and has determined
that the best interest of the VILLAGE would be served by the employment of the
CONTRACTOR for said purpose and
WHEREAS, the CONTRACTOR is willing to render the services of recycling,
the collection and disposal of yardwaste and the collection and disposal of
solidwaste within the Village upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, for and in consideration of the matual covenants, promises
and agreements herein contained, the parties hereto agree as follows:
I. Services
A. The CONTRACTOR agrees to make collections of solidwaste, yarchaste
and recycling on a regular schedule of not less than once each seven
(7) days from each single family detached residence within the
Village.
Exception: During the week in which one of our celebrated holidays
occur (New Years Day, Memorial Day, Fourth of July, Labor Day,
Thanksgiving Day and Christmas Day) pickup will be made one day late
from the holiday on.
1. SOLIDWASTE SERVICE - The CONTRACTOR hereby agrees to collect
and dispose of in a good workmanship manner all domestic
solidweste placed at the curb in standard 30-33 gallon
containers, 30-33 gallon plastic bags or optional 90 gallon
1
carts (the use of 45 gallon containers is discouraged);
discarded furniture, furnishings, fixtures; trees and tree
branches greater than 3 1/2 inches in diameter which are cut
up and bound into bundles of no more than four feet in length,
manageable in diameter by one person and weigh no more than
50 pounds per bundle.
a. The CONTRACTOR shall not be required within the normal
service to remove scrap and materials from the
construction, remodeling and repair of buildings;
concrete bricks; tree stumps, large amounts of earthy
materials, automobile bodies or large machine parts
weighing more than 50 pounds; nor materials of a toxic,
highly inflammable, or explosive nature.
b. The CONTRACTOR may receive additional compensation as
agreed upon between the property owner and the CONIRA=R
for collection of those materials in Article I -A -1-a.
2. RECYCLING SERVICE - the CONIRA=R agrees to make curbside
collection, process, store and market newspaper, aluminum and
bimetal cans, plastic (HDPE milk, water and windshield washer
solvent bottles; HDPE soda pop and liquor bottles and PET
liquid laundry and bleach bottles), glass jars/containers and
major appliances (white goods) including but not limited to,
washing machines, clothes dryers, dishwashers, refrigerators,
freezers, water heaters, stoves and ovens.
a. All recycle items mist be rinsed of any food product.
b. All recycle items (exception, major appliances) must be
placed loose in a recycle bin or equivalent open top
plastic container.
C. The CONTRACTOR also agrees to make pickup from multi-
family residence for which the CONTRACMR is the hauler.
d. During the term of this contract, if additional
recyclables are added to the program, a new service
charge based on the cost associated with those items,
will be negotiated with the VILLAGE.
3. MMWASTE SERVT - Between April 1 and November 30, of each
calendar year, the CODIIRACMR agrees to collect and dispose
of yardwaste; grass, leaves, shrubbery, vine trimmings, brush,
-tree limbs and other plant materials resulting from landscape
maintenance as classified by the State Statute for landscape
waste. Rocks, earth, garden vegetables and fruit are not
considered landscape waste and should be disposed of with
household solidwaste.
2
a. All items with the exception of tree limbs and brush mast
be placed in a 30-33 gallon biodegradable paper bags or
cans (Maximum weight of 50 pounds), or optional 90 gallon
cart. No plastic bags or non-WML 90 gallon carts/
containers will be used for the collection of yar dweste.
b. Tree limbs and brash, no larger than 3 1/2 inches in
diameter, will be picked up in bundles only. A bundle
size mast be no longer than 4 feet in length, manageable
in diameter by one person and weigh no more than 50
pounds and securely tied with biodegradable string.
C. The VILLAGE shall conduct a street leaf collection
program. The VILLAGE further agrees to transport
collected leaves to a designated IEPA approved staging
area. The CONTRACTOR shall transport leaves from the
staging area for ultimate disposal.
d. The CONTRACR7R agrees to make curbside collection of
Christmas trees between January 2 and January 15 of each
calendar year. The VILLAGE agrees to accept these
Christmas trees at a designated IEPA approved staging
area for chipping by the VILLAGE.
B. Collection of solidwaste, yardtaste and recycling shall be Trade
from the parkway in the residential area within the Village;
the disposal or processing of same shall be outside of the
corporate limits of the Village.
II. Service Charces
A. As consideration of said franchise, the CONTRACTOR agrees to
charge not more than the following rates per single family
detached residence within the Village when containers are
placed for pickup from the parkway abutting such premises:
1. Sol idweste Chargg
Rate not to exceed Peri
S 8.70/month/residence Novemberl, 1991-0ctober3l, 1992
$ 9.48/month/residence Novemberl, 1992-0ctober3l, 1993
S10.35/month/residence November 1,1993 -November 30, 1994
a. It is understood and agreed that the rates herein
specified shall be the rates charged for such service
and shall not be increased or decreased without the
consent of the VILLAGE.
3
M
3
b. The VILLAGE is a cmmber of the Solid Waste Agency of
Northern Cook County (the "AGENCY"). If the AGENCY
begins operating caste transfer stations during the term
of this Agreement, the VILLAGE may, at its sole
discretion, require the CONMACLOR to deposit the
residential .este collected in the VILLAGE at one of the
AGENCY'S transfer stations and re -adjust the price and
other terms of the agreement accordingly to meet the
obligations of the agency.
y
Rate not to exceed Period
53.45/ninth/residence November 1, 1991-October3l, 1992
53.62/month/residence Novemberl, 1992-October3l, 1993
53.80/month/residence November 1, 1993-I\bvember 30, 1994
It is understood and agreed that the rates herein specified
shall be the rates charged for such service and shall not be
increased or decreased without the consent of the VILLAGE.
Yard,aste Charge
Elate not to exceed Period
$ .50 per sticker April 1, 1992 -November 30, 1992
$ .50 per sticker April 1, 1993 -November 30, 1993
$ .50 per sticker April 1, 1994 -November 30, 1994
a. Residents will apply one (1) sticker per 30-33 gallon
biodegradable paper bag or three (3) stickers per 90
gallon cart.
b. The CONIRACMR agrees to make curbside collection of
bundled tree limbs and brush from single family detached
homes at no additional cost to the residents of the
VILLAGE.
C. The CONTRACTOR agrees to make curbside collection of
Christmas trees between January 2, and January 15, of
each calendar year at no additional charge to the
residents of the VILLAGE.
d. The COMPACTOR agrees to transport leaves from the
staging area at no additional charge to the residents
of the VILLAGE or the VILLAGE.
e. It is understood and agreed that the rates herein
specified shall be the rates charged for such service
and shall not be increased or decreased without the
consent of the VILLAGE.
4
III
IV
V
04
hbbile Containers and Charces
A. The CONTRACTOR is hereby authorized to lease mobile 90 gallon
carts to residents at the following rates:
Rate not to exceed Period
51.50/month/container Novemberl, 1991-Cctober3l, 1992
51.50/month/container Novemberl, 1992-October3l, 1993
51.50/month/container November 1,1993-Dbvemter 30, 1994
B. The customer has the option to lease or not lease the cart(s)
and to terminate the lease by notifying the CC== and
returning the cart(s) to the CONTRACTOR. The CONTRACTOR will
deliver and pick up containers at no charge to the resident.
C. The CONTRACTOR is responsible for furnishing , maintaining and
replacing containers that become damaged at no cost to the
resident.
Billinc
The CCNTRACTOR agrees to bill and collect for all services rendered
in Articles II and III and shall not look to the VILLAGE for
collection. Billing shall be for a three month service period. All
bills shall be due not later than the 45th day of the three month
service period.
Recycling Rebate
The CONTRACTOR agrees to process, store and market the recyclable
materials to an end user or utilize the DuPage County IPF. The
CONIRACTOR agrees to rebate the VILLAGE by the 30th day of the month
incrediately following the period for which service has been rendered,
a flat fee per ton each month regardless of price flucuations with
the CONTRACTOR retaining all receipts from the sale of said
materials.
Rate -per Ton Period
$ 9.50 November 1, 1991 -October 31, 1992
$10.00 November 1, 1992 -October 31, 1993
$10.50 November 1, 1993 -November 30, 1994
Disposal Sites
A. The CONTRACTOR agrees to procure and obtain the services of
disposal sites outside the VILLAGE boundaries, and to comply
withall the laws of the State of Illinois and of the Corporate
authorities of the area within which such sites are situated.
B. The CCNTRACTOR agrees to use disposal sites at no additional
cost to the VILLAGE or residents of the VILLAGE except as noted
in Article II A 1 b.
5
VII. Vehicles
A. The CONTRACTOR agrees and it shall be mandatory upon him to
acquire, operate and maintain the most modern collection
equipment for use in the VILLAGE and all such equipment shall,
at all times, be so constructed that none of the refuse or
garbage shall be scattered on the public ways of the VILLAGE.
B. The CONTRACTOR agrees to maintain safety stickers and proper
weight licenses, as required by the Secretary of State, State
of Illinois, on all vehicles operated within the Village.
C. The CONTRACTOR is responsible for furnishing, maintaining and
replacing the collection vehicles at no additional cost to the
Village or residents of the Village.
VIII. Insurance
A. The CONTRACTOR agrees to carry at his own cost the following:
1.
Workers' Compensation Insurance
2.
General Liability Insurance
(a) Bodily injury at a level
of
not
less
than
$500,000/$500,000.
(b) Property damage at a level
of
not
less
than
$500,000.
3.
Auto Liability Insurance
(a) Bodily injury at a level
of
not
less
than
$500,000/$1,000,000.
(b) Property damage at a level
of
not
less
than
$500,000.
4.
Umbrella Policy of $25,000,000
each
occurrence,
$25,000,000 aggregate.
B. The CONTRACTOR agrees to include the VILLAGE OF ELK GROVE
VILLAGE as an additional named insured on both General and Auto
Liability Insurance policies, and the lirbrella policy. The
CONTRACTOR will provide copies of these policies annually to
the VILLAGE.
C. All insurance premiums shall be paid by the CONTRACTOR and
shall be without cost to the VILLAGE.
D. The CONTRACTOR agrees to keep and hold the VILLAGE harmless
from and against all costs, damages, claims or expenses he may
suffer, incur or sustain or become liable for, or on account
of any injury to or death of his employees or to any other
person, or damage to or injury to real estate or personal
property caused or arising out of the services herein
contained.
3
E. The COMMA= agrees that at his own cost and at all times
he will pay the salaries of all employees employed by him in
the performance of this Agreement.
IX Recons
A. The COU ACTOR agrees to furnish annual financial statements
for all residential services at the end of each calendar year
to the Village Manager plus monthly reports on the number of
loads and approximate number of cubic yards hauled for both
solidwaste and yardwaste, A monthly report for recycling
activity showing the types of recycled materials and total
weight collected.
B. The VILLAGE retains the option of having the CCMRACTCR'S
books and records of accounts audited by a Certified Public
Accountant. Said audit shall be at the VILLAGE'S expense.
C. The CCMRA=R shall provide copies of all current labor
agreements and other contracts pertaining to the franchise
entered into by the COM'RACTCR.
D. The above reports and agreements will be kept strictly
confidential by the VILLAGE.
X. Availability of CONTRACTOR'S Eauioment
Upon the failure of the COMRACIOR to fulfill any of the
provisions of this Agreement, or upon the failure to make pickups
as herein provided for, the CONRACTOR hereby agrees that the VILLAGE
is authorized to engage the services of any person to do such work
and charge the cost thereof to the CONRACTOR herein, or to take
possession of the COM'RACIOR'S equipment, vehicles, facilities which
are normally used in providing service to the residential areas of
the Village, and to employ such personnel as the VILLAGE may deem
necessary to continue the work to protect the public health.
The CC1V RACMR agrees that all costs borne by the VILLAGE for
labor, materials and equipment necessary for such emergency work
shall be reimbursed to the VILLAGE by the COMPACTOR herein within
90 days of release and return of the vehicles to the CONTRACTOR.
XI. Franchise Fee
A. The CONTRACTOR agrees to pay a franchise fee of $3,000 per year
for use of Village streets and exclusive collection rights in
the VILLAGE's residential areas during the period of this
Agreement. The fee is to be paid upon the execution of this
Agreement.
B. The COMRACTCR shall pay for a VILLAGE scavenger license.
7
XII. The CONTRACTOR agrees to mark closely with the VILLAGE and assist
with educational, promotional and informational programs. Nailing
cost will be shared by the CONTRACTOR and the VILLAGE.
XIII. The CONTRACTOR agrees that it will at all times provide disposal
services in accordance with all local, state and federal laws,
subject to the need to adjust for this component, i.e. white goods
July, 1992.
XIV. Reusable Household Goods
The CCNMCTOR agrees to be responsible for the performance of a
monthly residential curbside collection program of reusable household
goods. The CCNTRACTCR agrees to utilize a not-for-profit
organization registered with the Attorney General of the State of
Illinois in accordance with the provisions of "An Act to Regulate
Solicitation and Collection of Funds for Charitable Purposes",
Illinois Revised Statutes, Chapter 23, Paragraph 5101 et seq. The
CONTRACTOR agrees to provide this service at no additional cost to
the residents of the village or VILLAGE.
Xv. Term of Agreement
This Agreement shall be for a
period of
three (3) years
(1) month
beginning November 1, 1991 and
ending on
November 30, 1994.
This
Agreement may be extended upon
agreement
of the parties
hereto and
it may be cancelled for cause
followinq
90 day written
notice by
either party during the term of the contract.
F-9
THIS AGREEMWr SHALL inure to and be binding upon the heirs,
administrators, executors, successors and assigns of the parties hereto.
IN WITNESS HEREOF, the VILLAGE has caused this Agreement to be signed by
it President and attested by its Village Clerk pursuant to authority granted by
the President and Board of Trustees of the VILLAGE, and the CONIRACICR has
affixed his signature hereto on the day and year first above written.
VILLAGE OF ELK GROVE VILLAGE GARDEN CITY RECYCLING & WASTE SERVICES
Division of Waste Managerrent
of Illinois, Inc.
Charles J. Zettek
Village President Donald R. Price
President
ATTEST: WITNESS:
Patricia S. Smith
Village Clerk Nam--
Title
ame
Title
E
EXHIBIT D
ESTIMATED COSTS OF
COMPONENTS OF PROJECT
Component
Wheeling Township Transfer Station
Interim Costs
Balefill
Rolling Meadows Transfer Station
Third Transfer Station
Landscape Waste Facility
Total
Estimated Costs
$23,417,865
6,000,000
22,260,391
17,538,791
16,670,855
4,820,140
$90,706,042
EXHIBIT E
DEFICIENCY FACTOR
2003
Financing Member
Waste Estimate
Factor
Arlington Heights
32,000
10.13%
Barrington
4,418
1.40%
Buffalo Grove
18,634
5.90%
Elk Grove Village
14,453
4.57%
Evanston
23,000
7.28%
Glencoe
3,800
1.20%
Glenview
18,500
5.85°%
Hoffman Estates
19,495
6.17%
Inverness
4,800
1.52%
Kenilworth
2,900
0.92%
Lincolnwood
5,900
1.87%
Morton Grove
8,800
2.78%
Mount Prospect
28,000
8.86°%
Niles
8,262
2.61%
Palatine
39,000
12.33%
Park Ridge
12,970
4.10%
Prospect Heights
3,500
1.11°%
Rolling Meadows
8,650
2.74%
Skokie
17,500
5.54%
South Barrington
2,032
0.64%
Wheeling
14,616
4.63%
Wilmette
12,787
4.05%
Winnetka
12,000
3.80%
Total
316,017
EXHIBIT F
FORMULAS
A. Operation and Maintenance Costs (Section 7.2)
SW
OMC = OMC x FM
FM A W
A
B. Fixed Costs (Section 7.3)
(a) If Agency Waste plus Customer Waste is less than 85% of
Expected Agency Waste:
(greater of SW or .85(ESW ))
FC = FC x FM FM
FM A .85 (EW )
A
(b) If Agency Waste plus Customer Waste is greater than or
equal to 85s of Expected Agency Waste:
SW
FC = FC x FM
FM A .85(EW )
A
C. Excessive Use Charge (Section 7.4)
OMC + FC
EUC = FM FM
FM 10
D. Deficiency Charge (Section 7.5)
(a) Phase I Deficiency
DF
DC = IU x DC x (.9)
IU E DF A
IU
DF
DC = FU x DC x (.1)
FU E DF A
FU
(b) Subsequent Phase I Deficiency or any Deficiency after
Majority Service Date
Key
DC =
A
DC =
FM
DC =
FU
DC =
IU
DF =
FM
DF =
FU
DF =
IU
EUC =
FM
ESW =
FM
EW =
A
FC =
A
FC =
FM
OMC =
A
OMC =
FM
SW =
FM
W=
A
Deficiency Charge to be imposed by Agency
Deficiency Charge payable by Financing Member
Deficiency Charge payable by Financing Member which is
a Future User
Deficiency Charge payable by Financing Member which is
an Initial User
Deficiency Factor of Financing Member; taken from
Exhibit E
Deficiency Factor of Financing Member which is a Future
User; taken from Exhibit E
Deficiency Factor of Financing Member which is an
Initial User; taken from Exhibit E
Excessive Use Charge payable by Financing Member
Expected Financing Member System Waste
Expected Agency Waste
Fixed Costs of Project
Fixed Costs payable by Financing Member
Operation and Maintenance Costs of Project
Operation and Maintenance Costs payable by
Financing Member
Financing Member System Waste
Agency Waste
F-2
DF
DC
=
FM
x
DC
FM
E
DF
A
FM
Deficiency Charge to be imposed by Agency
Deficiency Charge payable by Financing Member
Deficiency Charge payable by Financing Member which is
a Future User
Deficiency Charge payable by Financing Member which is
an Initial User
Deficiency Factor of Financing Member; taken from
Exhibit E
Deficiency Factor of Financing Member which is a Future
User; taken from Exhibit E
Deficiency Factor of Financing Member which is an
Initial User; taken from Exhibit E
Excessive Use Charge payable by Financing Member
Expected Financing Member System Waste
Expected Agency Waste
Fixed Costs of Project
Fixed Costs payable by Financing Member
Operation and Maintenance Costs of Project
Operation and Maintenance Costs payable by
Financing Member
Financing Member System Waste
Agency Waste
F-2