HomeMy WebLinkAboutORDINANCES-1992-011-O-923-4-92
11-0-92
APPROVING AND AUTHORIZING THE
EXECUTION OF A PROJECT USE AGREEMENT
WHEREAS, the City of Evanston, Cook County, 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
Constitution of the State of Illinois authorizes 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;
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
intergovernmental 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
government (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")
consisting 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
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additional sites or interests in sites for the Project or to+
acquire options therefor, to complete the 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; 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 capitaolized 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
Resolution") 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
Project; and
WHEREAS, under the Project Use Agreement, the
Municipality 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,
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• SECTION 5: That the City Manager -the City Clerk, wand
other officers of 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.
SECTION 6: All ordinances or parts of ordinances
in conflict herewith are hereby repealed.
SECTION 7: This ordinance shall be in full force and
effect from and after its passage, approval, and publication in
the manner provided by law.
Introduced:
Adopted:
L
TES .
• City Clerk
Apgroved a fo
Corporation Counsel
, 1992.
, 1992.
APP r d: �/ , 1992.
Mayor
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and pledge certain revenues from the operation of such system, •
all as provided in the Project Use Agreement; and
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 counter claim, irrespective of
whether the Project is ever completed, made available or provided
to the Municipality and notwithstanding any suspension,
interruption, 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 CITY COUNCIL OF
THE CITY OF EVANSTON, COOK COUNTY, 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
City Manager and City 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 City Clerk shall publish a full,
true and complete copy of this Ordinance in pamphlet form, by
authority of the City Council.
SECTION 4: That the City 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.
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•
PROJECT USE AGREEMENT
by and between
SOLID WASTE AGENCY OF
NORTHERN COOK COUNTY
and
YXXN/CITY OF Evanston
ILLINOIS
Dated:
1992
DRAFT 1/29/92
3046299 Ver 2 1/29/92 15:41
TABLE OF CONTENTS
Pacie
ARTICLE I
RECITALS
1.1. . . . . . . . . . . . . . . . . . . . . . . . 1
it"V("494
DEFINITIONS
2.1.
"Act" . . . . . . . . . . . . . . . . . . . . . . 2
2.2.
"Agency" . . . . . . . . . . . . . . . . . . . . . 2
2.3.
"Agency Agreement" . . . . . . . . . . . . . . . . 2
2.4.
"Agency obligations" . . . . . . . . . . . . . . . 2
2.5.
"Agency Waste" . . . . . . . . . . . . . . . . . . 2
2.6.
"Agreement" . . . . . . . . . . . . . . . . . . . . 2
2.7.
"Available Revenues" . . . . . . . . . . . . . . . 3
2.8.
"Balef ill" . . . . . . . . . . . . . . . . . . . . 3
2.9.
"Board" . . . . . . . . . . . . . . . . . . . . 3
2.10.
"Components" . . . . . . . . . . . . . . . . . . . 3
2.11.
"Construction Components" . . . . . . . . . . . . . 3
2.
"Costs of Construction" . . . . . . . . . . . . . . 3
3.
'''Customer Waste" 4
2.14.
"Deficiency" . . . . . . . . . . . . . . o 4
2.15.
"Deficiency Charge" . . . . . . . . . . . o 4
2.16.
"Deficiency Factor" . . . . . . . . . . . . 4
2.17.
"Deposit" . . . . . . . . . . . . . . . . . . 4
2.18.
"Engineer" . . . . . . . . . . . . . . . . . . . . 4
2.19.
"Excess Waste" . . . . . . . . . . . . . . . . . . 4
2.20.
"Excessive Use Charge" . . . . . . . . 4
2.21.
"Expected Agency Waste" . . . . . . . . . . . . . 5
2.22.
"Expected Financing Member System Waste" . . . . . 5
2.23.
"Financing Components" . . . . . . . . . . o 5
2.24.
"Financing Expenses" . . . . . . . . . . . 5
2.25.
"Financing Member" . . . . . . . . . . . . . . . . 5
2.26.
"Financing Member Costs" . . . . . . . . . . . . . 5
2.27.
"Financing Member Delivery Date" . . . . . . . . . 5
2.23.
"Financing Member System Waste" . . . . . 5
2.29.
"Financing Member Waste System" . . . . . . 5
2.30.
"Fiscal Year" . . . . . . . . . . . . . . . . . . . 5
2.31.
"Fixed Costs" . . . . . . . . . . . . . . . . . . . 5
2.32.
"Future User" . . . . . . . • . . . . . . . . 6
2.33.
"Independent Financial Consultant" . . . . 6
2.34.
"Inflation Adjustment" o 6
2.35.
"Initial User" . . . . . . . . . . . . o 6
2.36.
"Interim Costs" . . . . . . . . . . . . . . . . 6
2.37.
"Landscape Waste Facility" . . . . . . . . . . . . 6
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•
2.38.
"Majority Service Date" . . . . . . . . . . .
. . . 6
2.39.
"Master Bond Resolution" . . . . . .
6
2.40.
"Operation and Maintenance Costs" . . . . . .
. . . 6
2.41.
"Phase 1 Deficiency" . . . . . . . . . . . .
. . . 6
2.42o
"Prior Notes" • . . . . . . . . . .
. . . 7
2.43.
"Prior Notes Refundings". . . . . . . . . .
. . . 7
2.44.
"Project" . . . . . . . . . . . . . . .
. . . 7
2.45.
"Project Budget" . . . . . . . . . . . . . .
. . . 7
2.46.
"Required Work" . . . . . . . . . . . .
. . . . e 7
2.47.
"Rolling Meadows Transfer Station" . . . .
. . . . 7
2.48.
"Subsequent Phase I Deficiency" . . . . . .
. . . . 7
2.49.
"Supplemental Bond Resolution" . . . . . .
. . . . 7
2.50.
"Transfer Station" . . . . . . . . . .
. . . . 7
2.51.
"Third Transfer Station" . . . . . . . . .
. . . . 7
2.52.
"Trustee" . . . . . . . . . . . . . . .
. . . . 8
2.53.
"Waste" . . . . . . . . .
. . . . 8
2.54.
"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
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• 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
Project Budget . . . . . . . . . . . . . . . . . .
15
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 . . . . . . . . . . . . . . .
16
8.7.
Nature of Obligation . . . . . . . . . . . . . .
17
8.8.
Payments from Revenues of Financing Member
Waste System . . . . . . . . . . .
17
8.9.
Deficiency Charge Payments 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 . . . . . .
17
8.12.
Budgets and Bills as Estimates . . . . . . . . . .
18
8.13.
Disputes . . . . . . . . . . . . . . . . . . . . .
19
8.14.
Pledges. . . . . . . . . . . . . . . . . . . . . .
. 19
ARTICLE IX
AGENCY COVENANTS
9.1. Covenants Regarding the Project . . . . . . . . . . 19
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ARTICLE X
FINANCING MEMBER COVENANTS
10.1.
Financing Member Waste System .. . . . . . .
. 21.
10.2.
Rules and Regulations of Financing Member
Waste System . . . . . . .
. _ 21
10.3.
Enforcement of Rules and*Regulations . . . . .
. . 21 .
10.4.
Financial Covenant . . . . . . . . . . . . . .
. . 21
10.5.
Segregation of Revenue . . . . . . . . . .
. . 21
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 Maj eure . . . . . . . . . . . . . . . . . . . 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
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13.7. Cooperation .._ . . . . . . . . . Y . . . 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 GovernmentFinancial 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
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•
•
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY
PROJECT USE AGREEMENT
THIS PROJECT USE AGREEMENT is entered into by and between
the ESvans oOLsRo n WASTE AGENCY "OF NORTHERN COOK COUNTY and the City of
as of , 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 $2,000,000
3046299 ver 2 1/29/92 15:41 10
Contract Revenue and Bond Anticipation Notes Series i989•on"`
December 6, 1989 and its Prior Notes on May 1, 1990. The -Agency
and each of its twenty-six members entered into separate
agreements, each dated as of April 16, 1990, in order to provide
for the payment of principal of and interest on the Prior Notes. -
In order to pay the costs of the Project, including the cost of"`
purchasing or paying the Prior Notes and relieving the obligation
of the Financing Members to pay the costs of the Prior Notes, the
Agency and the Financing Members will enter into separate
Agreements.
1.6. Under the Agreements, each Financing Member agrees
that it will be liable to pay amounts to the Agency which
together with all amounts paid by other Financing Members will be
sufficient in the aggregate to pay the costs of the Project.
1.7. The Agency will issue Agency Obligations from time to
time to finance certain costs of the Project.
1.8. It is necessary and in the best interests of the
Financing Member and the Agency for each of them to enter into
this Agreement in order for (a) the Financing Member to
participate in and make use of the Project as a means of
processing, storing and disposing of its municipal waste and
(b) the Agency to pay the costs of the Project.
• ARTICLE II
DEFINITIONS
2.1. 11Act18 means the Intergovernmental Cooperation Act, as
amended (Ill. Rev. Stat. ch. 127, 11 741-749 (1989)).
2.2. '$Agency's means the Solid Waste Agency of Northern
Cook County.
2.3. I'Agency Agreements• 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 Obligationsel 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 Wastes' 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.
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2.7. "Available RevenuesIl means Available Revenues as
defined under the Master Bond Resolution.
2.8. "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.
2.9. "Boards@ means the Board of Directors of the Agency.
2.10. I'Componentsel means the Construction Components and
the Financing Components.
2.11. IsConstruction 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.
2.12. I'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;
L�
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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.
2.13. $$Customer Wastell means all waste accepted by the
Agency at a Transfer Station which is not Financing Member System
Waste of any Financing Member.
2.14. $'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.
2.15. Deficiency Chargell 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.
2.16. "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.
2.17. $'Deposit" means the deposit described in Section 8.11
of this Agreement.
2.18. "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.
2.19. "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.
2.20. "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.
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2.21. "Expected Agency Wastell means the sum of the Expected _.
Financing Member System Waste of all of the Financing Members -for_
the relevant Fiscal Year.
2.22. "Expected Financing Member System Wastell means the
Waste expected to be generated within the Financing Member Waste
System for any Fiscal Year, as determined under Section 3.1.
2.23. "Financing Components" means the Prior Notes
Refundings and the Interim Costs.
2.24. "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.
2.25. "Financing Member1l means a member of the Agency which
is a party to an Agreement.
2.26. "Financing Member Costs$$ means all costs and charges
imposed on the Financing Member under this Agreement.
2.27. IfFinancing Member Delivery Datell 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.
2.28. "Financing Member System Wastell 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.
2.29. IlFinancinq 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.
2.30. "Fiscal Year" means the fiscal year of the Agency
commencing May 1 of any year and concluding April 30 of the
following year.
2.31. "Fixed Costs'@ 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 a conservation 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
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rated 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 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.
2.32. "Future User" means a Financing Member not listed on
Exhibit A to this Agreement.
2.33. "Independent Financial Consultant'l means an
individual or firm having a favorable reputation for skill and
experience as a financial advisor for issuers of municipal bonds.
2.34. "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."
2.35. "Initial User1l means a Financing Member listed on
Exhibit A to this Agreement.
2.36. "Interim Costsel 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.
• 2.37. '$Landscape Waste Facilityle means a facility to be
built by the Agency which will dispose of landscape waste.
2.38. "Majority Service Date'$ 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.
2.39. IlMaster 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.
2.40. "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.
2.41. $'Phase I Deficiencyll means a Deficiency which
requires the imposition of a Deficiency Charge on Financing
Members which (i) occurs prior to the Majority Service Date and
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(ii) occurs with respect to a month following a month with
respect to which no Deficiency Charge has been imposed.
2.42. "Prior Notes1l means the Agency's $16,250,000 Contract
Revenue Notes, Series 1990, issued on May 1, 1990.
2.43. ----"Prior Notes Refundings1l_means ,the Financing
Component pursuant to which the Agency will refund its Prior
Notes.
2.44. INProj ectll means a "waste project" as defined in
Section 3.2(j)(ii) of the Act undertaken by or on behalf of the
Agency consisting of the Financing Components and the
Construction Components, which may be undertaken in any order.
2.45. "Project Budgeter means the budget regarding the
Project adopted each Fiscal Year by the Agency.
2.46. IsRequired Work1l shall mean repairs, maintenance,
renewals, replacements, improvements or betterments required by
federal or state law, a licensing or regulatory agency with
jurisdiction over the Project or any Construction Component, or
this Agreement, or otherwise determined to be necessary by a
majority of the Directors of the Board then holding office to
keep the Project or any Construction Component in good and
efficient operating condition, consistent with (1) sound
economics for the Project and the Financing Members and (2)
standards for the industry.
2.47. "Rolling Meadows Transfer Station'$ 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.
2.48. "Subsequent Phase I Deficiencyle 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.
2.49. "Supplemental Bond Resolution's means a resolution of
the Agency authorizing the issuance of Agency Obligations in
accordance with the Master Bond Resolution.
2.50. "Transfer Stations$ 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.
2.51. "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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• 2.52. "Trusteell means the trustee or trustees for the
benefit of the owners of the Agency Obligations, appointed as
provided in the Master Bond Resolution.
2.53. IlWastell 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.
2.54. "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 Financinq Member System
Waste and Deficiencv 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
M&Lnber have determined the Deficiency Factor as detailed in
Wbit E in order to allocate the default risk of the Project.
s 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,
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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 Financina 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 Financina Member Svstem 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. Pavment 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. Undertakina Reaardina the Project. 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
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Pro] P Yjma ect in phases and 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
z nd, 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
Delivery Date as shown on Exhibit B.
4.2. Continaencv of Aaencv 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
PROCEDURE 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 100% but no more
than 125% 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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• Financing Expenses with respect to such Component, upon the
pay g xP
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
E hibit D for another Construction Component ror zne purpose or
ermining whether the Engineer's report delivered under Section
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. Financings Member Waste Svstem. 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. Weiahina of Waste. The Agency shall own, operate,
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. Sufficiencv 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 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
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(f 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 85% 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 115% 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 one-third of the amounts the
Financing Member is obligated to pay under Sections 7.2 and 7.3
for such Fiscal Year.
7.6. Obliaations 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 MECHANISM
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
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 Budaet. 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
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•
culomer 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 Pavment; Late Charaes. The bill for each
ir1kh shall be paid by the Financing Member no later than the
2 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
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 Pavments. Acceptance of any partial payment
shall not be deemed a waiver with respect to any amounts not
paid.
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LJ
8.7. Nature of Obliaation. 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 Financina Member Waste
Svstem. 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. 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. Deficiencv Charae Pavment of Home -Rule Units as
General Obliaation. 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
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 Svstem 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
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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 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 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
*current Fiscal Year to calculate such amounts. Such amount
S--,ll be properly budgeted and appropriated by the Financing
Member from the Financing Member Waste System's enterprise fund
to the Agency to pay the Financing Member's payment obligations
hereunder.
8.12. Budctets 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,
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
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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
shall such participation be deemed an election of remedies by the
Financing Member.
8.14. Pledae. 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.
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ARTICLE IB
AGENCY COVENANTS
9.1. Covenants Reaardina 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
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.
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ARTICLE %
FINANCING MEMBER COVENANTS
The Financing Member covenants and agrees as follows:
10.1. Financina Member Waste Svstem. 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
Svstem. 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
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; and (c) to
provide adequate depreciation and reserve funds for the Financing
Member Waste System, (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
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such funds may be commingled with other funds of the�
Financing Member for investment purposes. -..
10.6. Pavments from Financina 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. Budaet 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. Financina 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
tent that those revenues exceed the amounts required to pay the
ration and maintenance expenses of its Financing Member Waste
stem 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 (10%) 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
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
3046299 Ver 2 1/29/92 15:41 —22—
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
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
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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. Financina Member Waste Svstem 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,
ansport and dispose of the Financing Member System Waste, or
S) a municipally owned and municipally or privately operated
Ste 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;
(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;
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(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:,
10.2;
(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 10.3;
(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 Financina Member Waste System.
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. Recvclina 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.
ARTICLE %II
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.
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12.1. Financina 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. Aaencv Remedies in Event of Financina 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)
Agency (and the Trustee) shall have the right to compel the
ent 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. Defaultina Financina Member Obliaations 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
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.
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12.4. Aaencv Defaults. Failure by the Agency to perform ,.3,.�•
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. Financina 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 Maieure. (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
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
Section 12.1(c) or (d) to the
delayed in performance of its
3046299 Ver 2 1/29/92 15:41
shall not be in default under
extent it is prevented from or
obligations under this Agreement
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(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 %III
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. Term. 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
a a number of members of the Agency having a population in
ss of 584,180 and this Agreement shall not become effective
i that has not occurred on or before December 31, 1992.
13.4. Financina 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
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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. Aaencv 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. Assictnment. 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
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
3046299 Ver 2 1/29/92 15:41 - 2 9 - •
L J
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
cumstances 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:
Solid Waste Agency of Northern Cook County
1616 East Golf Road
Des Plaines, Illinois 60016
Attention: Executive Director
304,§ Ver 2 1/29/92 15:41 - 3 0 -
and if to the Financing Member at:
City Manager---
2100 Ridge Avenue
Evanston. Illinois 6QUni
Attention: Eric A. Anarcnn
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. Governincr Law. This Agreement shall be construed
under the applicable laws of the State of Illinois.
13.13. Local Government Financial Planninct and Supervision,
Act. Pursuant to Section 14 of the Local Government Financial
Planning and Supervision Act (Ill. Rev. Stat. ch. 85, Q 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.
3046299 Ver 2 1/29/92 15:41 - 3 1 -
•
IN WITNESS WHEREOF, the Agency and.th4a"-Financing Member have
caused this Agreement to be executed in their respective
corporate names and attested by their duly authorized officers
and sealed with their corporate seals, all as of the date first
above written.
SOLID WASTE AGENCY OF NORTHERN
COOK COUNTY
Chairman
[SEAL]
Attest:
Secretary
Date of Execution by Financing Member: , 1992.
•
[VIITAJI�/City of Fvan-,tnn ]
Its V' Ly i'laiiauCt
[SEAL]
Attest:
Its
611 Ver 1 1/29/92 16:59
ti - - _,INITIAL -USZRS,;tz
•
3046299 Ver 2 1/29/92 15:41 •
•
zancing Member
Lington Heights
Y-rington
falo Grove
s Plaines
Grove Village
�nston
encoe
enview
ffman Estates
verness
nilworth
ncolnwood
rto rove
unt 6ospect
les
rthbrook
rthfield
latine
rk Ridge
'ospect Heights
lling Meadows
.okie
luth Barrington
,eeling
.lmette
.nnetka
EXHIBIT B
FINANCING KENWR DELIVERY„DATE AND..
EXPECTED FINANCING*NOMER RYRTEN WART$ "
Expected Expected_ Financing_-
Delivery Member System Waste -
Date for First Year) _-
.Transfer
Station'
Designation
Indicate if less than 100% of Expected Financing Member
System Waste will be delivered [3 year limit to phase in].
3046 Ver 2 1/29/92 15:41
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)]
(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.]
•
3046299 Ver 2 1/29/92 15:41 0
y ,
EXHIBIT D -
ESTIMATED COSTS OF COMPONENTS
OFPROJECT
Component Estimated Cost
Wheeling Township Transfer Station 23,417,865
Interim Costs 6,000,000
Balefill 19,392,455
Rolling Meadows Transfer Station 16,670,855
Third Transfer Station 16,670,855
Landscape Waste Facility 4,820,140
Total Costs 86,972,170
x
•
304# Ver 2 1/29/92 15:41
EXHIBIT E - - - -�
DEFICIENCY FACTOR--
Municipality Factor
R
Based on 2003 Waste Estimates made at time of execution of
agreement. Never revised or updated. [Explanatory note to
be deleted on execution copy]
3046299 Ver 2 1/29/92 15:41
•
•
EXHIBIT F
FORKULKS - - - - -
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 85% of Expected Agency Waste:
SW
FC = FC x FM
FM A .85(EW )
A
CO 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
3046299 Ver 2 1/29/92 16:41
(b)
Subsequent Phase I Deficiency or any Deficiency after
Majority Service Date
DF
DC = FM x DC
FM E DF A
FM
Key
DC =
Deficiency Charge to be imposed by Agency
A
DC =
Deficiency Charge payable by Financing Member
FM
DC =
Deficiency Charge payable by Financing Member which is
FU
a Future User
DC =
Deficiency Charge payable by Financing Member which is
IU
an Initial User
DF =
Deficiency Factor of Financing Member; taken from
FM
Exhibit E
DF =,
Deficiency Factor of Financing Member which is a Future
FU
User; taken from Exhibit E
DF =
Deficiency Factor of FinancingMember which is an
IU
Initial User; taken from Exhibit E
EUC =
Excessive Use Charge payable by Financing Member
•
FM
ESW =
Expected Financing Member System Waste
FM
EW =
Expected Agency Waste
A
FC =
Fixed Costs of Project
A
FC =
Fixed Costs payable by Financing Member
FM
OMC =
Operation and Maintenance Costs of Project
A
OMC =
Operation and Maintenance Costs payable by
FM
Financing Member
SW =
Financing Member System Waste
FM
W = Agency Waste
A
3046299 Ver 2 1/29/92 16:42 - 2 - is