Rep. Susana A. Mendoza

Filed: 5/6/2010

 

 


 

 


 
09600SB2612ham002 LRB096 13422 RLJ 41377 a

1
AMENDMENT TO SENATE BILL 2612

2     AMENDMENT NO. ______. Amend Senate Bill 2612 by replacing
3 everything after the enacting clause with the following:
 
4     "Section 5. The Electricity Infrastructure Maintenance Fee
5 Law is amended by adding Section 5-10 as follows:
 
6     (35 ILCS 645/5-10 new)
7     Sec. 5-10. Municipal tax review; requests for information.
8     (a) A municipality may conduct an audit of fees under this
9 Act to determine the accuracy of the fees paid by an
10 electricity deliverer.
11     (b) Not more than once every 2 years, a municipality that
12 has imposed a fee under this Law may, subject to the
13 limitations and protections stated in Section 16-122 of the
14 Public Utilities Act, request any information from an
15 electricity deliverer that the municipality reasonably
16 requires in order to perform an audit under subsection (a). The

 

 

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1 information that may be requested by the municipality includes,
2 without limitation:
3         (1) in an electronic format, the database used by the
4     electricity deliverer to determine the amount due to the
5     municipality; provided, however, that, if the municipality
6     has requested customer-specific billing, usage, and load
7     shape data from an electricity deliverer that is an
8     electric utility and has not provided the electric utility
9     with the verifiable authorization required by Section
10     16-122 of the Public Utilities Act, then the electric
11     utility shall remove from the database all
12     customer-specific billing, usage, and load shape data
13     before providing it to the municipality; and
14         (2) in a format used by the public utility in the
15     ordinary course of its business, summary data, as needed by
16     the municipality, to determine the unit consumption by
17     providing the gross kilowatt-hours or other units of
18     measurement subject to the fee imposed by this Law within
19     the municipal jurisdiction.
20     (c) Each electricity deliverer must provide the
21 information requested under subsection (b) within:
22         (1) 60 days after the date of the request if the
23     population of the requesting municipality is 500,000 or
24     less; or
25         (2) 90 days after the date of the request if the
26     population of the requesting municipality exceeds 500,000.

 

 

09600SB2612ham002 - 3 - LRB096 13422 RLJ 41377 a

1     The time in which an electricity deliverer must provide the
2 information requested under subsection (b) may be extended by
3 an agreement between the municipality and the electricity
4 deliverer. If an electricity deliverer receives, during a
5 single month, information requests from more than 2
6 municipalities, or the aggregate population of the requesting
7 municipalities is 100,000 customers or more, the electricity
8 deliverer is entitled to an additional 30 days to respond to
9 those requests.
10     (d) If an audit by the municipality or its agents finds an
11 error by the electricity deliverer in the amount of fees
12 collected or paid by the electricity deliverer, then the
13 municipality must notify the electricity deliverer of the
14 error. Any such notice must be issued pursuant to Section 30 of
15 the Local Government Taxpayers' Bill of Rights Act or a lesser
16 period of time from the date the fee was due that may be
17 specified in the municipal ordinance imposing the fee. Upon
18 such a notice, any audit shall be conducted pursuant Section 35
19 of the Local Government Taxpayers' Bill of Rights Act subject
20 to the timelines set forth in this subsection (d). The
21 electricity deliverer must submit a written response within 60
22 days after the date the notice was postmarked stating that it
23 has corrected the error or stating the reason that the error is
24 inapplicable or inaccurate. The municipality then has 60 days
25 after the receipt of the electricity deliverer's response to
26 review and contest the conclusion of the electricity deliverer.

 

 

09600SB2612ham002 - 4 - LRB096 13422 RLJ 41377 a

1 If the parties are unable to agree on the disposition of the
2 audit findings within 120 days after the notification of the
3 error to the electricity deliverer, then either party may
4 submit the matter for appeal as outlined in Section 40 of the
5 Local Government Taxpayers' Bill of Rights Act. If the appeals
6 process does not produce a satisfactory result, then either
7 party may pursue the alleged error in a court of competent
8 jurisdiction.
9     (e) Electricity deliverers and municipalities are not
10 liable for any error in past collections and payments that was
11 unknown to either the electricity deliverer or the municipality
12 prior to the audit process unless the error was due to
13 negligence in the collection or processing of required data.
14 If, however, an error in past collections or payments resulted
15 in a customer, who should not have owed a fee to any
16 municipality, having paid a fee to a municipality, then the
17 customer may, to the extent allowed by Section 9-252 of the
18 Public Utilities Act, recover the fee from the electricity
19 deliverer, and any amount so paid by the electricity deliverer
20 may be deducted by that electricity deliverer from any fees or
21 taxes then or thereafter owed by the electricity deliverer to
22 that municipality.
23     (f) All account specific information provided by an
24 electricity deliverer under this Section may be used only for
25 the purpose of an audit of fees conducted under this Section
26 and the enforcement of any related claim. All such information

 

 

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1 must be held in strict confidence by the municipality and its
2 agents and may not be disclosed to the public under the Freedom
3 of Information Act or under any other similar statutes allowing
4 for or requiring public disclosure.
5     (g) The provisions of this Section shall not be construed
6 as diminishing or replacing any civil remedy available to a
7 municipality, taxpayer, or tax collector.
8     (h) This Section does not apply to any municipality having
9 a population greater than 1,000,000.
 
10     Section 10. The Local Government Taxpayers' Bill of Rights
11 Act is amended by changing Sections 10 and 35 as follows:
 
12     (50 ILCS 45/10)
13     Sec. 10. Application and home rule preemption. The
14 limitations provided by this Act shall take precedence over any
15 provision of any tax ordinance imposed by a unit of local
16 government, as defined in this Act, in Illinois, including
17 without limitation any tax authorized under Section 8-11-2 of
18 the Illinois Municipal Code.
19     Consistent with the limitations provided by this Act, a
20 municipality, other than municipality having a population
21 greater than 1,000,000, may not impose any penalty with respect
22 to a tax authorized by Section 8-11-2 of the Illinois Municipal
23 Code or with respect to an audit authorized by Section 8-11-2.5
24 of the Illinois Municipal Code, except as specified in Sections

 

 

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1 50, 55, and 60 of this Act.
2     This Act is a denial and limitation of home rule powers and
3 functions under subsection (g) of Section 6 of Article VII of
4 the Illinois Constitution.
5 (Source: P.A. 91-920, eff. 1-1-01.)
 
6     (50 ILCS 45/35)
7     Sec. 35. Audit procedures. Taxpayers have the right to be
8 treated by officers, employees, and agents of the local tax
9 administrator with courtesy, fairness, uniformity,
10 consistency, and common sense. This Section applies to any
11 audit of a tax imposed by a unit of local government other than
12 a municipality having a population greater than 1,000,000,
13 except to the extent otherwise provided in Section 8-11-2.5 of
14 the Illinois Municipal Code. Taxpayers must be notified in
15 writing by the local jurisdiction of a proposed audit of the
16 taxpayer's books and records clearly identifying who will be
17 conducting the audit. For audits being conducted by third-party
18 providers, the local jurisdiction must provide written
19 authorization for the third-party provider to review the books
20 and records of the taxpayer. No contact may be made by the
21 third-party provider until the local-jurisdiction
22 authorization is received by the taxpayer. The notice of audit
23 must specify the tax and time period to be audited and must
24 detail the minimum documentation or books and records to be
25 made available to the auditor. Audits must be held only during

 

 

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1 reasonable times of the day and, unless impracticable, at times
2 agreed to by the taxpayer. The auditor must sign a
3 confidentiality agreement upon request by the taxpayer. Upon
4 the completion of the audit, the local jurisdiction must issue
5 an audit closure report to the taxpayer with the results of the
6 audit. An auditor who determines that there has been an
7 overpayment of tax during the course of the audit is obligated
8 to identify the overpayment to the taxpayer so that the
9 taxpayer can take the necessary steps to recover the
10 overpayment. If the overpayment is the result of the
11 application of some or all of the taxpayer's tax payment to an
12 incorrect local government entity, then upon request by a unit
13 of local government, the audit information must be given to any
14 unit of local government that may be affected by an overpayment
15 the auditor must notify the correct local government entity of
16 the taxpayer's application error.
17 (Source: P.A. 91-920, eff. 1-1-01.)
 
18     Section 15. The Counties Code is amended by adding Section
19 5-1095.1 as follows:
 
20     (55 ILCS 5/5-1095.1 new)
21     Sec. 5-1095.1. County franchise fee review; requests for
22 information.
23     (a) If pursuant to its franchise agreement with a community
24 antenna television system (CATV) operator, a county imposes a

 

 

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1 franchise fee authorized by 47 U.S.C. 542, then the county may
2 conduct an audit of that CATV operator's franchise fees derived
3 from the provision of cable and video services to subscribers
4 within the franchise area to determine whether the amount of
5 franchise fees paid by that CATV operator to the county was
6 accurate. Any audit conducted under this subsection (a) shall
7 determine any overpayment or underpayment to the county by the
8 CATV operator, and the amount due to the county or CATV
9 operator is limited to the net difference.
10     (b) Not more than once every 2 years, a county that has
11 imposed a franchise fee authorized by 47 U.S.C. 542 may,
12 subject to the limitations and protections stated in the Local
13 Government Taxpayers' Bill of Rights Act, request information
14 from the CATV operator in the format maintained by the CATV
15 operator in the ordinary course of its business that the county
16 reasonably requires in order to perform an audit under
17 subsection (a). The information that may be requested by the
18 county includes without limitation the following:
19         (1) in an electronic format used by the CATV operator
20     in the ordinary course of its business, the database used
21     by the CATV operator to determine the amount of the
22     franchise fee due to the county; and
23         (2) in a format used by the CATV operator in the
24     ordinary course of its business, summary data, as needed by
25     the county, to determine the CATV operator's franchise fees
26     derived from the provision of cable and video services to

 

 

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1     subscribers within the CATV operator's franchise area.
2     (c) The CATV operator must provide the information
3 requested under subsection (b) within:
4         (1) 60 days after the receipt of the request if the
5     population of the requesting county is 500,000 or less; or
6         (2) 90 days after the receipt of the request if the
7     population of the requesting county exceeds 500,000.
8     The time in which a CATV operator must provide the
9 information requested under subsection (b) may be extended by
10 an agreement between the county and the CATV operator.
11     (d) If an audit by the county or its agents finds an error
12 by the CATV operator in the amount of the franchise fees paid
13 by the CATV operator to the county, then the county may notify
14 the CATV operator of the error. Any such notice must be given
15 to the CATV operator by the county within 90 days after the
16 county discovers the error, and no later than 4 years after the
17 date the franchise fee was due. Upon such a notice, the CATV
18 operator must submit a written response within 60 days after
19 receipt of the notice stating that the CATV operator has
20 corrected the error on a prospective basis or stating the
21 reason that the error is inapplicable or inaccurate. The county
22 then has 60 days after the receipt of the CATV operator's
23 response to review and contest the conclusion of the CATV
24 operator. No legal proceeding to collect a deficiency based
25 upon an alleged error shall be commenced unless within 180 days
26 after the county's notification of the error to the CATV

 

 

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1 operator the parties are unable to agree on the disposition of
2 the audit findings.
3     (e) No CATV operator is liable for any error in past
4 franchise fee payments that was unknown by the CATV operator
5 prior to the audit process unless (i) the error was due to
6 negligence on the part of the CATV operator in the collection
7 or processing of required data and (ii) the county had not
8 failed to respond in writing in a timely manner to any written
9 request of the CATV operator to review and correct information
10 used by the CATV operator to calculate the appropriate
11 franchise fees if a diligent review of such information by the
12 county reasonably could have been expected to discover such
13 error.
14     (f) All account specific information provided by a CATV
15 operator under this Section may be used only for the purpose of
16 an audit conducted under this Section and the enforcement of
17 any franchise fee delinquent claim. All such information must
18 be held in strict confidence by the county and its agents and
19 may not be disclosed to the public under the Freedom of
20 Information Act or under any other similar statutes allowing
21 for or requiring public disclosure.
22     (g) For the purposes of this Section, "CATV operator" means
23 a person or entity that provides cable and video services under
24 a franchise agreement with a county pursuant to Section 5-1095
25 of the Counties Code and a holder authorized under Section
26 21-401 of the Cable and Video Competition Law of 2007 as

 

 

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1 consistent with Section 21-901 of that Law.
2     (h) This Section does not apply to any action that was
3 commenced, to any complaint that was filed, or to any audit
4 that was commenced before the effective date of this amendatory
5 Act of the 96th General Assembly. This Section also does not
6 apply to any franchise agreement that was entered into before
7 the effective date of this amendatory Act of the 96th General
8 Assembly unless the franchise agreement contains audit
9 provisions but no specifics regarding audit procedures.
10     (i) The provisions of this Section shall not be construed
11 as diminishing or replacing any civil remedy available to a
12 county, taxpayer, or tax collector.
13     (j) If a contingent fee is paid to an auditor, then the
14 payment must be based upon the net difference of the complete
15 audit.
16     (k) Within 90 days after the effective date of this
17 amendatory Act of the 96th General Assembly, a county shall
18 provide to any CATV operator a complete list of addresses
19 within the corporate limits of the county and shall annually
20 update the list.
21     (l) This Section is a denial and limitation of home rule
22 powers and functions under subsection (h) of Section 6 of
23 Article VII of the Illinois Constitution.
 
24     Section 20. The Illinois Municipal Code is amended by
25 adding Sections 8-11-2.5 and 11-42-11.05 as follows:
 

 

 

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1     (65 ILCS 5/8-11-2.5 new)
2     Sec. 8-11-2.5. Municipal tax review; requests for
3 information.
4     (a) If a municipality has imposed a tax under Section
5 8-11-2, then the municipality may conduct an audit of tax
6 receipts collected from the public utility that is subject to
7 the tax or that collects the tax from purchasers on behalf of
8 the municipality to determine whether the amount of tax that
9 was paid by the public utility was accurate.
10     (b) Not more than once every 2 years, a municipality that
11 has imposed a tax under this Act may, subject to the
12 limitations and protections stated in Section 16-122 of the
13 Public Utilities Act and in the Local Government Taxpayers'
14 Bill of Rights Act, request any information from a utility in
15 the format maintained by the public utility in the ordinary
16 course of its business that the municipality reasonably
17 requires in order to perform an audit under subsection (a). The
18 information that may be requested by the municipality includes,
19 without limitation:
20         (1) in an electronic format used by the public utility
21     in the ordinary course of its business, the database used
22     by the public utility to determine the amount of tax due to
23     the municipality; provided, however, that, if the
24     municipality has requested customer-specific billing,
25     usage, and load shape data from a public utility that is an

 

 

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1     electric utility and has not provided the electric utility
2     with the verifiable authorization required by Section
3     16-122 of the Public Utilities Act, then the electric
4     utility shall remove from the database all
5     customer-specific billing, usage, and load shape data
6     before providing it to the municipality; and
7         (2) in a format used by the public utility in the
8     ordinary course of its business, summary data, as needed by
9     the municipality, to determine the unit consumption of
10     utility services by providing the gross therms, kilowatts,
11     minutes, or other units of measurement being taxed within
12     the municipal jurisdiction and the gross revenues
13     collected and the associated taxes assessed.
14     (c) Each public utility must provide the information
15 requested under subsection (b) within:
16         (1) 60 days after the date of the request if the
17     population of the requesting municipality is 500,000 or
18     less; or
19         (2) 90 days after the date of the request if the
20     population of the requesting municipality exceeds 500,000.
21     The time in which a public utility must provide the
22 information requested under subsection (b) may be extended by
23 an agreement between the municipality and the public utility.
24 If a public utility receives, during a single month,
25 information requests from more than 2 municipalities, or the
26 aggregate population of the requesting municipalities is

 

 

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1 100,000 customers or more, the public utility is entitled to an
2 additional 30 days to respond to those requests.
3     (d) If an audit by the municipality or its agents finds an
4 error by the public utility in the amount of taxes paid by the
5 public utility, then the municipality must notify the public
6 utility of the error. Any such notice must be issued pursuant
7 to Section 30 of the Local Government Taxpayers' Bill of Rights
8 Act or a lesser period of time from the date the tax was due
9 that may be specified in the municipal ordinance imposing the
10 tax. Upon such a notice, any audit shall be conducted pursuant
11 to Section 35 of the Local Government Taxpayers' Bill of Rights
12 Act subject to the timelines set forth in this subsection (d).
13 The public utility must submit a written response within 60
14 days after the date the notice was postmarked stating that it
15 has corrected the error or stating the reason that the error is
16 inapplicable or inaccurate. The municipality then has 60 days
17 after the receipt of the public utility's response to review
18 and contest the conclusion of the public utility. If the
19 parties are unable to agree on the disposition of the audit
20 findings within 120 days after the notification of the error to
21 the public utility, then either party may submit the matter for
22 appeal as outlined in Section 40 of the Local Government
23 Taxpayers' Bill of Rights Act. If the appeals process does not
24 produce a satisfactory result, then either party may pursue the
25 alleged error in a court of competent jurisdiction.
26     (e) No public utility is liable for any error in past

 

 

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1 collections and payments that was unknown by it prior to the
2 audit process unless (i) the error was due to negligence by the
3 public utility in the collection or processing of required data
4 and (ii) the municipality had not failed to respond in writing
5 on an accurate and timely basis to any written request of the
6 public utility to review and correct information used by the
7 public utility to collect the municipality's tax if a diligent
8 review of such information by the municipality reasonably could
9 have been expected to discover such error. If, however, an
10 error in past collections or payments resulted in a customer,
11 who should not have owed a tax to any municipality, having paid
12 a tax to a municipality, then the customer may, to the extent
13 allowed by Section 9-252 of the Public Utilities Act, recover
14 the tax from the public utility, and any amount so paid by the
15 public utility may be deducted by that public utility from any
16 taxes then or thereafter owed by the public utility to that
17 municipality.
18     (f) All account specific information provided by a public
19 utility under this Section may be used only for the purpose of
20 an audit of taxes conducted under this Section and the
21 enforcement of any related tax claim. All such information must
22 be held in strict confidence by the municipality and its agents
23 and may not be disclosed to the public under the Freedom of
24 Information Act or under any other similar statutes allowing
25 for or requiring public disclosure.
26     (g) The provisions of this Section shall not be construed

 

 

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1 as diminishing or replacing any civil remedy available to a
2 municipality, taxpayer, or tax collector.
3     (h) This Section does not apply to any municipality having
4 a population greater than 1,000,000.
 
5     (65 ILCS 5/11-42-11.05 new)
6     Sec. 11-42-11.05. Municipal franchise fee review; requests
7 for information.
8     (a) If pursuant to its franchise agreement with a community
9 antenna television system (CATV) operator, a municipality
10 imposes a franchise fee authorized by 47 U.S.C. 542, then the
11 municipality may conduct an audit of that CATV operator's
12 franchise fees derived from the provision of cable and video
13 services to subscribers within the franchise area to determine
14 whether the amount of franchise fees paid by that CATV operator
15 to the municipality was accurate. Any audit conducted under
16 this subsection (a) shall determine any overpayment or
17 underpayment to the municipality by the CATV operator, and the
18 amount due to the municipality or CATV operator is limited to
19 the net difference.
20     (b) Not more than once every 2 years, a municipality that
21 has imposed a franchise fee authorized by 47 U.S.C. 542 may,
22 subject to the limitations and protections stated in the Local
23 Government Taxpayers' Bill of Rights Act, request information
24 from the CATV operator in the format maintained by the CATV
25 operator in the ordinary course of its business that the

 

 

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1 municipality reasonably requires in order to perform an audit
2 under subsection (a). The information that may be requested by
3 the municipality includes without limitation the following:
4         (1) in an electronic format used by the CATV operator
5     in the ordinary course of its business, the database used
6     by the CATV operator to determine the amount of the
7     franchise fee due to the municipality; and
8         (2) in a format used by the CATV operator in the
9     ordinary course of its business, summary data, as needed by
10     the municipality, to determine the CATV operator's
11     franchise fees derived from the provision of cable and
12     video services to subscribers within the CATV operator's
13     franchise area.
14     (c) The CATV operator must provide the information
15 requested under subsection (b) within:
16         (1) 60 days after the receipt of the request if the
17     population of the requesting municipality is 500,000 or
18     less; or
19         (2) 90 days after the receipt of the request if the
20     population of the requesting municipality exceeds 500,000.
21     The time in which a CATV operator must provide the
22 information requested under subsection (b) may be extended by
23 an agreement between the municipality and the CATV operator.
24     (d) If an audit by the municipality or its agents finds an
25 error by the CATV operator in the amount of the franchise fees
26 paid by the CATV operator to the municipality, then the

 

 

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1 municipality may notify the CATV operator of the error. Any
2 such notice must be given to the CATV operator by the
3 municipality within 90 days after the municipality discovers
4 the error, and no later than 4 years after the date the
5 franchise fee was due. Upon such a notice, the CATV operator
6 must submit a written response within 60 days after receipt of
7 the notice stating that the CATV operator has corrected the
8 error on a prospective basis or stating the reason that the
9 error is inapplicable or inaccurate. The municipality then has
10 60 days after the receipt of the CATV operator's response to
11 review and contest the conclusion of the CATV operator. No
12 legal proceeding to collect a deficiency based upon an alleged
13 error shall be commenced unless within 180 days after the
14 municipality's notification of the error to the CATV operator
15 the parties are unable to agree on the disposition of the audit
16 findings.
17     (e) No CATV operator is liable for any error in past
18 franchise fee payments that was unknown by the CATV operator
19 prior to the audit process unless (i) the error was due to
20 negligence on the part of the CATV operator in the collection
21 or processing of required data and (ii) the municipality had
22 not failed to respond in writing in a timely manner to any
23 written request of the CATV operator to review and correct
24 information used by the CATV operator to calculate the
25 appropriate franchise fees if a diligent review of such
26 information by the municipality reasonably could have been

 

 

09600SB2612ham002 - 19 - LRB096 13422 RLJ 41377 a

1 expected to discover such error.
2     (f) All account specific information provided by a CATV
3 operator under this Section may be used only for the purpose of
4 an audit conducted under this Section and the enforcement of
5 any franchise fee delinquent claim. All such information must
6 be held in strict confidence by the municipality and its agents
7 and may not be disclosed to the public under the Freedom of
8 Information Act or under any other similar statutes allowing
9 for or requiring public disclosure.
10     (g) For the purposes of this Section, "CATV operator" means
11 a person or entity that provides cable and video services under
12 a franchise agreement with a municipality pursuant to Section
13 11-42-11 of the Municipal Code and a holder authorized under
14 Section 21-401 of the Cable and Video Competition Law of 2007
15 as consistent with Section 21-901 of that Law.
16     (h) This Section does not apply to any action that was
17 commenced, to any complaint that was filed, or to any audit
18 that was commenced before the effective date of this amendatory
19 Act of the 96th General Assembly. This Section also does not
20 apply to any franchise agreement that was entered into before
21 the effective date of this amendatory Act of the 96th General
22 Assembly unless the franchise agreement contains audit
23 provisions but no specifics regarding audit procedures.
24     (i) The provisions of this Section shall not be construed
25 as diminishing or replacing any civil remedy available to a
26 municipality, taxpayer, or tax collector.

 

 

09600SB2612ham002 - 20 - LRB096 13422 RLJ 41377 a

1     (j) If a contingent fee is paid to an auditor, then the
2 payment must be based upon the net difference of the complete
3 audit.
4     (k) Within 90 days after the effective date of this
5 amendatory Act of the 96th General Assembly, a municipality
6 shall provide to any CATV operator a complete list of addresses
7 within the corporate limits of the municipality and shall
8 annually update the list.
9     (l) This Section is a denial and limitation of home rule
10 powers and functions under subsection (h) of Section 6 of
11 Article VII of the Illinois Constitution.
12     (m) This Section does not apply to any municipality having
13 a population of more than 1,000,000.
 
14     Section 99. Effective date. This Act takes effect upon
15 becoming law.".