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02-360 Resolution No. 02-360 RESOLUTION AUTHORIZING EXECUTION OF A MEMBERSHIP AGREEMENT WITH JULIE, INC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Olufemi Folarin, Interim City Manager, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a Membership Agreement on behalf of the City of Elgin with JULIE, Inc . for membership in the Illinois One-Call Utility Location System, a copy of which is attached hereto and made a part hereof by reference . s/ Ed Schock Ed Schock, Mayor Presented: November 20, 2002 Adopted: November 20 , 2002 Omnibus Vote : Yeas : 7 Nays : 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk )J`1E TO( JULIE, INC. - The Illinois One-Call System a m u m Serving Illinois Utilities and Excavators for over 25years. en� 892-0, 3275 EXECUTIVE DR. JOLIET.IL 6043 I Phone(815)741-5000 January 8, 2003 Fax(815)741-5958 www.julielcall.com Mark A.Frost Executive Director TO: New JULIE Member Company Please find enclosed a copy of your JULIE Membership Agreement for your files. If you have any questions, please call me at 815-741-5948. Sincerely, Terri Robinson Administrative Assistant Dig;Safely. ILLINOIS Printed on Recycled Paper for a Better Environment. MEMBERSHIP AGREEMENT=JULIE,INC. - AMENDED-July 19,2000 MEMBERSHIP AGREEMENT Agreement made this day of , 20 , by and between JULIE, INC., an Illinois not-for-profit corporation with its principal office at 3275 Executive Drive, Joliet, IL 60431 (hereinafter the "corporation") and City of Elgin , a municipal corporation with its principal office at 150 Dexter Court, Elgin, Illinois (hereinafter called the "member"). WHEREAS, the corporation has been formed as an Illinois General Not-for-Profit Corporation to establish facilities to receive and transmit information to and from persons, firms, corporations and other entities intending to undertake activities which might interfere with or damage the facilities of members of the corporation or others and such activities to include but not be limited to excavating, drilling, blasting or otherwise disturbing the subsurface of the earth and to forward information to the members of the corporation who have facilities which might be affected by the proposed activities; and WHEREAS, the member has such facilities and therefore wishes to become a member of the corporation: NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties agree as follows: ARTICLE 1 1.1 The member accepts and agrees to be bound by the terms and conditions of the Articles of Incorporation, the By-Laws and the Operating Rules and Regulations of the corporation, as the same shall be in effect from time to time. ARTICLE II 2.1 Each member shall be individually and solely responsible for taking such MEMBERSHIP AGREEMENT=JULIE, INC. AMENDED-July 19,2000 action as it, in its sole discretion, may deem necessary to protect its respective underground or other facilities and to prevent interruption of its respective service to the public: 2.2 Nothing in this Agreement shall prevent any member from seeking recovery against the party (including any other member of the corporation) who caused or was responsible for the loss or damage to the member's underground or other facilities or for any other claim or injury except that the member hereby waives any right to recover against the corporation, its directors, officers and employees. It is also expressly understood that neither this Agreement nor the By-Laws is intended to, nor shall either be construed as, altering or affecting the rights and obligations of, or creating additional liability for, any member in its capacity as a supplier of utility service, whether to the corporation or any other member, or in its capacity as a licensor, licensee, franchisor or franchisee of any other member. 2.3 The directors, officers and employees of the corporation shall be indemnified by the corporation as provided for in Article XV of the By-Laws and shall not be personally liable to any member for any loss or damage incurred by any member as a result of any action or failure to act, except as a result of any action or failure to act which would preclude indemnification under said Article XV on the part of the corporation. 2.4 Each member shall be individually and solely responsible for locating and marking its own underground facilities pursuant to telecommunication notification by the corporation. Further, each member shall indemnify the corporation and hold harmless the corporation from and against any and all damages, fines, civil penalties, lawsuits, claims, demands, liabilities, losses, costs and expenses, including attorneys' fees and - 2 - MEMBERSHIP AGREEMENT=JULIE,INC. AMENDED-July 19,2000 administrative expenses, that may arise, or be alleged to have arisen, out of or in connection with such member's performance of, or failure to perform, any work, obligation or service undertaken by, or imposed herein upon, such member, or any part thereof, whether or not due or claimed to be due in whole or in part to the active, passive or concurrent negligence or fault of such member, including without limitation damages, fines, civil penalties, claims, demands, liabilities, losses, costs and expenses for or on account of bodily injury, sickness, disease or death sustained by any person or persons or injury or damage to, or loss or destruction of, any property, or any act or omission of such member, its officers, agents or employees. 2.4.1 Where more than one member is obligated to indemnify and hold harmless the corporation pursuant to Section 2.4 above in connection with an occurrence for which indemnification and hold harmless protection is sought, such members shall provide indemnification and hold harmless protection to the corporation in the ratios set forth in Section 2.5 below. 2.4.2 Where more than one member is obligated to indemnify and hold harmless the corporation pursuant to Section 2.4 above in connection with an occurrence for which indemnification and hold harmless protection is sought and any such member fails to fulfill its obligation under Section 2.4.1, then the other members obligated to indemnify and hold harmless the corporation pursuant to Section 2.4 above shall be responsible for such obligation in the ratios set forth in Section 2.6 below, provided, such other obligated members shall have the right to pursue at law, equity and otherwise all available remedies (including but not limited to, by way of subrogation, the corporation's right to indemnification under Section 2.4 above) to enforce the obligation of the failing member - 3 - MEMBERSHIP AGREEMENT=JULIE, INC. . AMENDED-July 19,2000 to the extent that said other obligated members have paid amounts in excess of their obligations under Section 2.4.1: 2.5. This Membership Agreement specifically recognizes and affirms that all municipal members' liability for indemnification of the directors,officers or employees of the corporation or for indemnification of any other member or officer, agent, or employee of that member is limited to claims arising as a result of the acts or omissions of the municipality or its officers, agents, or employees arising out of the operations of the municipality's underground utility facilities. 2.5.1 Further, no additional liability for a municipal member in relation to any other member with which the municipal member may have entered into a franchise agreement is hereby created by signing and entering into this Membership Agreement. 2.5.2 If any municipal member's liability for indemnification under a franchise agreement is narrower than the indemnification provisions as provided by this Membership Agreement, then the terms of the franchise agreement shall control. 2.5.3 Notwithstanding anything to the contrary contained within this Membership Agreement, the By-Laws and the Operating Rules and Regulations of JULIE, Inc., the Illinois State Statute found at 220 ILCS 50/11.5 shall be applicable and shall control the rights of JULIE, Inc. and any municipal member. 2.6 The votes of each member (determined in accordance with ARTICLE III. Members, SECTION 3. Voting Rights, of the By-Laws, and made a part of this Agreement) as of the time of the incident which is the subject matter of a claim shall be used to determine the ratios set forth in this section. The ratio for each member shall be a fraction the numerator of which is his vote as -4 - MEMBERSHIP AGREEMENT=JULIE, INC. AMENDED-July 19,2000 determined in the prior paragraph and the denominator of which is the sum of the votes of all members who are providing indemnification and hold harmless protection to the corporation. (For instance, in the prior paragraph if there are three members providing indemnification and hold harmless protection to the corporation and two are entitled to cast 50,000 votes each and one 25,000 the respective fractions would be 50,000 50,000 and 25,000, or 2, 2, and 1 125,000 125,000 125,000 5 5 5 ARTICLE Ill 3.1 Each member shall secure and maintain in force during the term of this Agreement Comprehensive General Liability Insurance, including Contractual Liability insurance. Such insurance shall be in such form, in such amounts, and with such companies as are acceptable to the corporation and is in accordance with the standards set forth in the Operating Rules and Regulations of the corporation. A certification evidencing such insurance shall be filed with the corporation before this Membership Agreement shall become effective and shall provide evidence that the policy has been endorsed to provide thirty (30) days', notice of cancellation or change thereof. Said insurance requirements may be waived at the discretion of the corporation. ARTICLE IV 4.1 This Agreement is made pursuant to and shall be governed by the laws of the State of Illinois applicable to agreements made and to be entirely performed within such State. 4.2 In the event that any provision of this Agreement or the application of such provision to any party or circumstance, shall be held to be invalid or unenforceable, the - 5 MEMBERSHIP AGREEMENT=JULIE,INC. AMENDED-July 19,2000 remainder of this Agreement, or the application of such provision to parties or circumstances other-than those to which it is held invalid or unenforceable, shall not be affected thereby. 4.3 No waiver at any time by any party hereto of its rights with respect to any other party, or with respect to any other matter arising in connection with this Agreement, shall be considered a waiver with respect to any other default or matter. 4.4 Any amendment to this Agreement shall be in writing and shall be made by a change in the Articles of Incorporation or By-Laws of the corporation. 4.5 Except as otherwise provided, this Agreement shall be effective as of the day and year first above written. Subject to the provisions of Section 4.6, this Agreement may be terminated by any member after the effective date hereof by thirty days written notice to the corporation and each member. 4.6 No termination of this Agreement, shall discharge the member of (1) any obligation it owes any other party indemnified herein by reason of any transaction, loss, cost, damage, expense or liability or, (2) any other obligation under this Agreement including but not limited to the obligation to pay its bills from the corporation, which shall occur or arise (or the circumstances, events or basis of which shall occur or arise) prior to such termination, whether the same be known or unknown at the time of such termination. - 6 - MEMBERSHIP AGREEMENT=JULIE, INC. - AMENDED-July 19,2000 IN WITNESS WHEREOF,.the parties hereto have caused this Agreement to be executed the day and year first above written. JULIE, INC. ATTEST' jc/Z 111, BY: SECRETARY PR DE -727/ MEMBER ATTEST: Me-CL/4,_ BY: City Clerk ' ITS: Ci • YOUR FEDERAL TAX IDENTIFICATION NO 36-6005862 JULIE, INC., FEDERAL TAX IDENTIFICATION NO.: 36-2944012 - 7 - • eNs 0/ kl ��: § Agenda Item No. F City of Elgin , � r -]TE EI F-6 .I E g tit,: November 1 , 2002 fit 10� I of . .1 N tip ,: , 0 a TO: Mayor and Members of the City Council FINANCIALLY STABLE CITY GOVERNMENT EFFICIENT SERVICES, AND QUALITY INFRASTF0.ICTUFIE FROM: Olufemi Folarin, Interim City Manager SUBJECT: Consideration Of Membership Agreement With Illinois One-Call Utility Location System (JULIE) PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider approving an agreement for membership in the Illinois One-Call Utility Location System know by the acronym, JULIE BACKGROUND In July, 2001, the State legislature passed House Bill 2138 which amended the Illinois Underground Utility Facilities Damage Prevention Act . The original act required all utility owners/operators to become members of JULIE and to participate in its utility location program to minimize the damage to existing utilities by construction activities . The 2001 amendment added a $100 per day fine for utility owners who are not members by January 1, 2003 . The water, sewer, traffic signal, street light and fiber optic systems operated by the City fall under the terms of the act . The membership agreement that the City must approve to join JULIE is attached. Currently the City requires contractors and residents to call us directly to request locations on city owned utilities . City crews consistently use the services provided by JULIE to obtain locations on privately owned utilities within the city when their activities involve excavation or below grade installation of poles or other appurtenances . Damage to city owned utilities have been very minor and infrequent . Approximately 600 calls per year are received by the Public Works office requesting field locations of our utilities . r JULIE Membership Agreement November 1, 2002 Page 2 The number of calls for field locations that the City will receive through JULIE will be approximately 5, 700 per year based on historical data provided by them. The significantly higher number is due to the fact that calls are directed to utilities based on the location of the work being done referencing a grid map utilized by JULIE. If the City has utilities anywhere in that grid section, it will receive the location request . Under the current system, callers are more selective and have usually confirmed the presence of City utilizes in their work area prior to calling us . Even though many of the location requests may not have city utilities in the immediate location of the work, the added calls will drastically increase the work load for staff . Each request still has to be checked to verify an "all clear" situation and approximately 60% (per JULIE) will require a phone call back to the requestor advising them of the situation. One positive aspect of the more thorough cross section of calls is that the information provided on the purpose for the request can be reviewed to insure that proper building permits have been obtained. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None Dik- FINANCIAL IMPACT There is not a membership fee to join JULIE. Rather member utilities are charged by the number of calls for service processed. The most economical approach is to receive the notices by e-mail at a cost of $0 . 80 per request . For large utilities receiving over 300 calls per year, the payment must be made in advance based on the projected number of calls . For Elgin, the anticipated 5, 700 calls would result in a cost of $4, 560 . 00 . There are sufficient funds available in the utilities' operating budgets in the Water Fund, account numbers 401-4005-771 .45-99 ($18 , 725 budgeted, $5, 030 available) - (Other Misc . Services) and in the Sewer Fund, account number 430-4202- 772 .45-99 ($30, 000 budgeted, $14 , 665 available) - (Other Misc. Services) to split the cost . JULIE Membership Agreement November 1 , 2002 Page 3 GAL IMPACT None ALTERNATIVES 1 . Approve the agreement as recommended and join JULIE 2 . Do not approve the agreement . This would violate state law and so is not a viable alternative. RECOMMENDATION It is recommended that the City Council approve the membership agreement with the Illinois One-Call Utility Location System know as JULIE and authorize the Mayor to sign. Respectfully submitted, Olu emi Fo arin Interi Cir -.ger JML/j ml Attachment