AGREEMENT FOR FIRE AND AMBULANCE PROTECTION
BETWEEN BRAIDWOOD FIRE PROTECTION DISTRICT AND
THE CUSTER FIRE PROTECTION DISTRICT
THIS AGREEMENT, made this 1st day of August, 2023, between Braidwood Fire Protection District ("Braidwood"), and the Custer Fire Protection District ("Custer").
WITNESSETH:
WHEREAS, Braidwood and Custer are organized and operate pursuant to the laws of the State of Illinois, including but not limited to the Fire Protection District Act (the “Act,” 70 ILCS 705/0.01 et seq.); and

WHEREAS, Section 6(a) of the Act (70 ILCS 705/6(a)) provides that the Districts’ Boards of Trustees are the corporate authority for their respective Districts; and

WHEREAS, Section 6(i) of the Act (70 ILCS 705/6(i)) provides that the District Boards have full power to pass all necessary ordinances, and rules and regulations for the proper management and conduct of the business of the Districts for carrying into effect the objects for which the Districts were formed; and

WHEREAS, Section 11 of the Act (70 ILCS 705/11) provides that the District Boards have the power and legal duty to provide as nearly adequate protection from fire for all persons and property within each respective District as possible and to prescribe necessary regulations for the prevention and control of fire therein; and

WHEREAS, Section 11 of the Act (70 ILCS 705/11) further provides that the Districts may provide and maintain life-saving and rescue equipment, services and facilities, including an emergency ambulance service, and have the power to adopt and enforce fire prevention codes and standards parallel to national standards; and

WHEREAS, Section 11a of the Act (70 ILCS 705/11a) provides that the District Boards may contract with any city, village, incorporated town, or organized fire protection district lying adjacent to the Districts for fire protection service; and

WHEREAS, under Section 22 of the Act (70 ILCS 705/22) each District is authorized to provide and provides fire and emergency ambulance services to residents and properties within said District; and

WHEREAS, Section 22 of the Act (70 ILCS 705/22) further provides that the District Boards may contract with providers of ambulance service or combine with other units of governments for the purpose of providing ambulance service; and

WHEREAS, Article VII, Section 10 of the Illinois Constitution of 1970 authorizes units of local government “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, the Intergovernmental Cooperation Act (5 ILCS 220/3) provides that any power or powers, privilege, or authority exercised or which may be exercised by public agency may be exercised and enjoyed jointly with any other public agency of the State; and

WHEREAS, the Districts are units of local government and public agencies as defined by the Illinois Constitution and statute; and
WHEREAS, Braidwood has historically provided Custer with ambulance and fire protection services up to May 2019 and stands ready, willing, and able to resume such fire and ambulance protection services to Custer pursuant to the terms hereinafter set forth; and
WHEREAS, Custer has requested Braidwood to provide ambulance and fire protection services, and is willing to pay Braidwood for such additional services as hereinafter provided; and
WHEREAS, the Parties are interested in the prospect of someday consolidating in order to further efficiency in operations and generate taxpayer savings by reducing duplicative mandatory costs.
NOW, THEREFORE, in consideration of the covenants and conditions herein set forth, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed by and between the parties hereto as follows:
1. INCORPORATION OF RECITALS: The above recitals are incorporated herein as if written verbatim.
2. SERVICES TO BE PROVIDED BY BRAIDWOOD: Beginning on the Commencement Date of August 1, 2023:
(A) Braidwood will provide qualified personnel and equipment to provide fire and emergency ambulance services to residents and properties of Custer.
(B) Braidwood will, to the best of its ability and as reasonably and operationally practicable, provide such services on the same basis as it provides its services to residents and properties within its corporate limits.
(C) Braidwood will provide to the residents of Custer the same public education and fire safety programs which are available to Braidwood residents.
(D) Braidwood shall make regular and routine reports when requested, but typically not less than a quarterly basis, to Custer of its activities, including any significant or noteworthy service-related event occurring in Custer’s territory.
(E) Braidwood will make reasonable effort to secure Automatic Aid for Custer from other fire departments and fire districts. Mutual Aid will be provided through agreements with MABAS divisions, or such successors as Braidwood may choose from time to time, including an auto aid an agreement with Salina Fire Protection District and an auto aid engine to the southeast beat of Custer’s territory.
3. COMPENSATION FOR SERVICES RENDERED:
(A) In consideration of the foregoing fire protection, rescue, and emergency ambulance services to be rendered by Braidwood, Custer agrees to pay to Braidwood the balance of Custer’s Corporate and Ambulance Fund. The payment for the 2023 calendar year shall be due on December 31, 2023.
(B) Beginning January 1, 2024, and continuing each year thereafter, Custer shall pay Braidwood a sum equal to 100% of Custer’s actual real estate taxes deposits less the sum paid by Custer for Board and corporate expenses (e.g., insurance, legal fees, email/internet fees, required travel, and office supplies) in consideration of Braidwood’s fire protection, rescue, and emergency ambulance services (the “Annual Payment”).
(C) The Annual Payment shall be paid by January 31st of each year of this contract. By way of clarification, payment for the year 2024 shall be due January 31, 2025. Notwithstanding the above, payments may be made in installments during the year at the discretion of Custer.
(D) In addition to the Annual Payment, and commencing immediately upon execution of this Agreement, and pursuant to regulations promulgated by the Center for Medicare and Medicaid Services of the U.S. Department of Health and Human Services, Braidwood may bill Custer’s residents and persons receiving Braidwood’s ambulance services pursuant to this Agreement. Braidwood shall retain all proceeds from any reimbursement thus recovered. Custer’s residents shall be considered as “residents” by Braidwood, and Braidwood promises it will not “hard bill” Custer’s residents during the duration of this Agreement.
(E) As further consideration to Braidwood for its performance under this Agreement, Custer shall liquidate all tangible assets including apparatus and portable fire protection equipment no later than one year from the Commencement Date. Custer shall convey to Braidwood the title of Ambulance 29 and all onboard/surplus EMS equipment, such that it can be used to service Custer’s residence via this Agreement. Braidwood agrees that the value of all liquidated and conveyed assets from Custer is $________________ without depreciation.
4. CUSTER TO ENACT ORDINANCES FOR PAYMENT OF FEES: Custer acknowledges that to the extent it is permitted by law, it shall enact, enforce and maintain all Ordinances necessary to impose fees or charges upon the residents and non-residents of Custer for ambulance, fire, rescue and hazardous material related incidents. Any charges made pursuant to this provision would, with the authority of Custer, be initiated by Braidwood, at the cost of Braidwood, and any proceeds would be retained by Braidwood. Custer represents that it intends to mirror Braidwood’s ordinances upon the commencement of this Agreement.
5. INSURANCE:
(A) Braidwood shall maintain commercial general liability insurance, business auto liability insurance for its vehicles, and workers’ compensation/employer’s liability insurance for their respective employees as required by law with respect to Braidwood’s provision of Fire and Ambulance Services. Braidwood agrees to add Custer as an additional insured under all liability insurance policies covering Braidwood as such policies relate to the services provided in this Agreement, including, but not limited to property damage, general liability, and workers compensation.
(B) Custer shall maintain commercial general liability insurance and properly insure against property damage, general liability, and all other risks in relation to its fire station. Custer shall also maintain D&O liability insurance. Custer shall name Braidwood as an additional insured under all liability insurance policies covering Custer.
7. PERSONNEL AND EQUIPMENT:
(A) All personnel and equipment necessary for Braidwood to perform its obligations hereunder shall be provided by Braidwood.
(B) The Parties agree that the Braidwood personnel and equipment providing fire and ambulance service to Custer pursuant to this Agreement shall remain the personnel and equipment of Braidwood.
(C) Custer’s agents and employees shall have no authority to direct Braidwood in the provision of fire and ambulance service. However, Custer shall have the ability to convey resident complaints and convers concerns with Braidwood’s service, if any.
(D) During the term of this Agreement, Braidwood shall be the exclusive provider of fire and ambulance service to Custer’s territory. Custer’s agents and employees shall not provide fire and ambulance services.
(E) The Parties acknowledge the hard work and dedication of Custer’s employees. The Parties further acknowledge that Braidwood’s full-time, paid firefighters must be appointed via the original appointment process prescribed by law. See 70 ILCS 705/16.06b. The Parties agree that Braidwood lacks the power to hire Custer’s employees as full-time, commissioned firefighters without them undergoing the aforesaid original appointment process. Nevertheless, following the execution of this Agreement, Braidwood shall make reasonable and good faith efforts to hire Custer’s employees as non-commissioned, part-time firefighters. The Parties will meet and confer in good faith as to Braidwood’s hiring of said individuals.
(F) While this Agreement is in effect, Braidwood shall be permitted to use and operate out of Custer’s fire station without Custer charging rent. Custer shall continue any ownership or leasehold interest in its fire station during the term of this Agreement. However: (1) Custer intends to work with Custer Township to acquire full ownership of the fire station, and (2) nothing herein shall prevent Custer from conveying its interests in its fire station to Braidwood if it so desires. Braidwood agrees to pay all taxes, utilities, and maintenance costs, and all other expenses associated with the fire station while this Agreement is in effect.
8. FIRE ALARMS AND DISPATCHING:
(A) Braidwood will assume, and may assign to a 9-1-1 dispatch center of which it is a member all alarm call receipt and dispatching responsibility.
(B) The Parties acknowledge that Custer is a member of the Laraway Communications Center (“LCC”) and receives dispatching services from LCC. Braidwood is a member of WESCOM and receives dispatching services from WESCOM. As the Parties deem practical after the execution of this Agreement, Custer shall withdraw from Laraway Communications Center and become a member of WESCOM. Custer acknowledges that it may be subject to withdraw and other liability from Laraway Communications Center. Any such liability will be paid via from Custer’s Annual Payment.

9. INDEMNIFICATION:
(A) Braidwood shall, to the extent permitted by law, indemnify, hold harmless and defend Custer, its officials, officers, employees, and agents from and against all liability, claims, suits, demands, proceedings and action, including reasonable attorney’s fees, costs, fees and expense of defense, arising from, growing out of, or related to any loss, damage, injury, death, or loss or damage resulting from or connected with the sole negligent or willful acts, errors or omissions of Braidwood in providing fire and ambulance services under this Agreement.
(B) Custer shall, to the extent permitted by law, indemnify, hold harmless and defend Braidwood, its officials, officers, employees, and agents from and against all liability, claims, suits, demands, proceedings and action, including reasonable attorney’s fees, costs, fees and expense of defense, arising from, growing out of, or related to any loss, damage, injury, death, or loss or damage resulting from or connected with the negligent or willful acts, errors, or omissions of Custer that are unrelated to Braidwood’s provision of fire and ambulance services under this Agreement.

(C) Nothing contained herein shall be construed as a limitation or waiver of defenses available to either District, including but not limited to the Tort Immunity Act.

10. TERM: Subject to the terms of Section 11, this Agreement will be for an initial term commencing upon execution of this Agreement and ending on the fifth anniversary of the execution of this Agreement (the “Initial Term”).

11. RENEWAL AND TERMINATION:

(A) Renewal: Upon the expiration of the five-year Initial Term or any renewal term, this Agreement shall automatically renew for succeeding terms of five years each unless either party gives written notice to the other party of their intent not to renew at least one year prior to the expiration of any term. At each renewal, the Parties will meet in confer in good faith about dissolution of Custer and consolidation with Braidwood. However, nothing in this Agreement shall preclude the Parties from meeting and conferring on dissolution/consolidation at other times.

(B) Termination for Cause: Any party may terminate this Agreement for just cause, meaning a legally sufficient reason for termination of the agreement (except the termination provisions set forth in paragraphs (C)-(D) below), provided that the terminating party gives written notice as further provided in this Agreement to the other parties not less than one year prior to the date when termination would take effect.

(C) Termination for Nonpayment: Braidwood may terminate this Agreement for nonpayment if the Annual Payment remains unpaid for a period of sixty days after Braidwood has notified Custer of the default in payment. In the event of such termination for non-payment, Custer shall pay a penalty to Braidwood equal to six months payment at the then current Annual Payment. Custer shall pay to Braidwood all expenses (including reasonable attorney’s fees and court costs) incurred by Braidwood in connection with collection of late payments.

(D) Other Terminations:

a. If Braidwood decides to terminate this Agreement for any other reason than specified in Subsections 11(B)-(C), or declines to renew this Agreement pursuant to Subsection 11(A), Braidwood agrees to repay to Custer the agreed amount of Custer’s assets detailed in Section 3(E) above.

b. If Custer decides to terminate this Agreement for any other reason than specified in Subsections 11(B)-(C), or declines to renew this Agreement pursuant to Subsection 11(A), Custer shall allow Braidwood to shall retain the agreed amount of Custer’s assets detailed in Section 3(E) above.

12. COOPERATION OF THE PARTIES:

(A) The Parties shall cooperate in the exercise of their obligations as set forth in this Agreement. The Parties shall prepare, execute, and provide such additional agreements, consents and other approvals as needed to perform the purposes and objectives of this Agreement.

(B) The Parties acknowledge that there may be certain efficiencies and benefits in consolidation between Custer and Braidwood. Accordingly, the Parties shall meet and confer in good faith about formal consolidation at least minimally at the frequency established in Section 11(A) above.

13. REPRESENTATIONS BY BRAIDWOOD: Braidwood agrees, represents, and warrants that:

(A) It will faithfully serve Custer’s territory and citizens to the best of its ability.

(B) It has the resources to adequately provide fire and emergency medical services to Custer’s territory and citizens.

(C) At present, it intends to staff Custer’s fire station with one paramedic and at least one firefighter/EMT or above (and shall do so unless prevented by extreme circumstances) with the intention of staffing either an Advanced Life Support ambulance or fire apparatus, as the situation may dictate. However, operational concerns may require Braidwood to modify this staffing arrangement according to prevailing circumstances. In the event of a substantial change in staffing, the Parties agree to meet, confer, and bargain in good faith over any impacts such changes may require.

(D) It has material policies of insurance covering it and its employees, properties and assets, including policies of property, fire, workers’ compensation, directors’ and officers’ liability, and other casualty and liability insurance that is in a form and amount that is customarily carried by fire protection districts conducting business similar to that of the District and which is adequate (in terms of amount and losses and risks covered) for its operation. Braidwood further warrants that each such policy is in full force and effect and all premiums due thereon have been paid.

(E) It is not insolvent and remains in good financial condition.

(F) There is no complaint, claim, action, suit, litigation, proceeding, or governmental or administrative investigation pending or threatened that would compromise the promises made in this Agreement.

14. REPRESENTATIONS BY CUSTER: Custer agrees, represents, and warrants that:

(A) It is not insolvent and remains in good financial condition.

(B) There is no complaint, claim, action, suit, litigation, proceeding, or governmental or administrative investigation pending or threatened that would compromise the promises made in this Agreement.

(C) It currently has material policies of insurance covering it and its employees, properties and assets, including policies of property, fire, workers’ compensation, directors’ and officers’ liability, and other casualty and liability insurance that is in a form and amount that is customarily carried by fire protection districts conducting business similar to that of the District and which is adequate (in terms of amount and losses and risks covered) for its operation. Custer further warrants that each such policy is in full force and effect and all premiums due thereon have been paid. However, upon execution of this Agreement, Custer may be allowed to terminate certain insurance policies in accordance with Section 5 of this Agreement.

(D) Custer has the ability and resources to make the payments and deliver the consideration described in this Agreement.

(E) Custer has no bonded indebtedness, but discloses that it has a vehicle loan with the remaining balance of $______________ that it anticipates will be paid upon the commencement of this Agreement.

15. CHOICE OF LAW AND DISPUTE RESOLUTION: This Agreement shall be construed and interpreted according to the laws of the State of Illinois without reference to choice of law rules. Any action at law or in equity arising under this Agreement shall be filed only in an appropriatethe state of Illinois or a federal court located in the State of Illinois. The Parties hereby waive any right to a trial by jury in any suit or proceeding arising out of or relating to this Agreement. The Parties agree that their sole and exclusive remedy under this Agreement shall be to seek specific performance of the obligations set forth herein. This Section shall survive the expiration or earlier termination of this Agreement.

16. APPROVAL: Braidwood and Custer shall take such steps as are necessary under the law to approve, and to authorize the execution and delivery of this Agreement. Braidwood and Custer warrant they have full authority to execute this Agreement. The Parties hereby and forever waive any argument at law or in equity that they lack the power to enter into this Agreement.

17. COMPLETE AGREEMENT AND AMENDMENT: This Agreement memorializes the full and complete understanding of Braidwood and Custer. This Agreement may be amended at any time by the mutual consent of the parties hereto, expressed in a written instrument executed and delivered with the same formality with which this instrument was executed and delivered.

18. SEVERABILITY: The provisions of this Agreement are severable. If any paragraph, section, subdivision, sentence, clause or phrase of this Agreement is for any reason held to be contrary to law, or contrary to any rule or regulation having the effect or force of law, such decision shall not affect the validity of the remaining portions or the Agreement.

19. NO THIRD-PARTY BENEFICIARIES: This Agreement is only for the benefit of Custer and Braidwood. This Agreement shall not be construed as or deemed to operate as an agreement for the benefit of any third party or parties, and no third parties shall have any right of action or obtain any right to benefits or position of any kind for any reason whatsoever.

20. WAIVER: No failure on the part of either District to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that either District may have hereunder.

21. FORCE MAJEURE: Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder as a result of any Force Majeure Event. For purposes of this Agreement, "Force Majeure Event" shall mean an event beyond a Party's reasonable control that occurs without a Party's fault or negligence, including, but not limited to fire, strike, boycott, picketing, or other industrial disturbances, riot, civil commotion, epidemic, pandemic, or public health emergency, theft, vandalism, flood, lightning, tempest, storm, acts of nature, war, acts of war and defense, power failure (provided that each Party takes reasonable measures to ensure the availability of backup power), failure of any cable, telecommunications, satellite, or fiber optic network (provided the fault such failure is not caused by either Party), or order of any government or governmental agency (including the denial or cancellation of any necessary permit or license. Each Party shall give the other prompt written notice of the occurrence of any Force Majeure Event.

22. COUNTERPARTS: This Agreement may be simultaneously executed in counterparts, each of which so executed shall be deemed to be original, and such counterparts together shall constitute one and the same instrument.

23. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon Braidwood and Custer and their respective successors and assigns and shall accord to the benefit of such persons and their respective successors and assigns. No party may assign this contract without the written consent of the other party. All assignments made without such written consent are void.
24. NOTICES: All notices required hereunder shall be made in writing and directed by certified United States mail, return receipt requested, to the parties currently as follows or their successors at such addresses as have been provided to the parties from time to time:
To Custer: President, Board of Trustees
Custer Fire Protection District
21750 Highway 113
Custer Park, IL 60481

With a copy to Custer's Attorney: James P. Bartley
Klein, Thorpe & Jenkins, Ltd.
20 N. Wacker Drive, Suite 1660
Chicago, Illinois 60606

To Braidwood: President, Board of Trustees
Braidwood Fire Protection District
275 W. Main St.
P.O. Box 309
Braidwood, IL 60408

With a copy to Braidwood’s Attorney: John Motylinski Ottosen DiNolfo Hasenbalg & Castaldo
1804 N Naper Blvd, Suite 350
Naperville, IL 60563

IN WITNESS WHEREOF, Braidwood has caused this Agreement to be executed and sealed on its behalf by its Board of Trustees, and Custer has caused this Agreement to be executed and on its behalf of its Board of Trustees.

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Braidwood Fire Protection District

__________________________________
President, Board of Trustees

Attest:

______________________________
Secretary, Board of Trustees

Custer Fire Protection District,

__________________________________
President, Board of Trustees

Attest:

______________________________
Secretary, Board of Trustees