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THIRD DIVISION

JUSTICE BURKE delivered the opinion of the court:

Defendants, the Village of Hoffman Estates, a municipal corporation, and the Village's mayor, trustees, manager, finance director, and clerk/treasurer (the Village) appeal from an order of the circuit court granting plaintiff Hoffman Estates Professional Firefighters Association (the Association) and its president Charles O'Connor's motion for summary judgment and denying the Village's motion for summary judgment. The court's order required the Village to comply with section 11--10--2 of the Illinois Municipal Code (Code) (65 ILCS 5/11--10--2 (West 1996)) by creating a foreign fire insurance board⁽¹⁾ (Board), and upon doing so, to turn over to the Board all foreign fire insurance tax proceeds authorized and collected by the Village pursuant to section 11--10--1 of the Code (65 ILCS 5/11--10--1 (West 1996)) "from January 1, 1985, to the present."

On appeal, the Village argues that it was not subject to the requirements of section 11--10--2 to create the Board and fund it with the proceeds of the foreign fire insurance tax "from January 1, 1985 to the present" because the Village: (1) was not required by statute "to create and fund the Board prior to 1990"; (2) the State Mandates Act (30 ILCS 805/1 et seq. (West 1996)) relieved the Village from compliance with the statutory requirement to create and fund the Board with foreign fire insurance tax proceeds after the 1990 amendment; and (3) the collective bargaining agreement between the Village and the Association barred the Association from bringing a cause of action against the Village to make it pay the tax proceeds to the Association from 1990 to 1995. For the reasons set forth below, we reverse and remand.

The Association is a labor association affiliated with the International Association of Firefighters, AFL-CIO, CLC. The Association was organized to provide for the "general welfare" of the Hoffman Estates firefighters and the Hoffman Estates fire department. The Village is an Illinois municipality which has an organized fire department. The Village's population is less than 50,000.

Section 11--10--1 of the Code, prior to and since 1990, is entitled, "Foreign Fire Insurance Company Fees," and provides for the Village's collection of a tax, not to exceed two percent of the gross receipts from fire insurance, upon property situated within the Village where fire insurance is provided by an insurance company not incorporated under the laws of Illinois. 65 ILCS 5/11--10--1 (West 1996). The Village levied the tax from 1985 until 1997, collected the proceeds, and placed them in the firefighters' pension fund. According to the Village, the amount of taxes collected by it from 1985 through 1996, and the 1997 estimated amount, was $283,483.

The parties' dispute arose in 1996 when the Association requested that the Village transfer the foreign fire insurance tax proceeds to the Hoffman Estates' fire department pursuant to section 11--10--2 of the Code. The Village refused to transfer the funds to the fire department and continued to collect the tax. As a result, the Association filed a complaint for a writ of mandamus and declaratory judgment on February 18, 1997, to require the Village to create the Board and turn over to the Board all foreign fire insurance tax proceeds the Village collected pursuant to section 11--10--1 "from January 1, 1985, to the present." The Association alleged in its complaint that the Village did not transfer the collected tax proceeds to the firefighters' pension fund or to the fire department, but instead transferred the tax proceeds into the Village's "General Fund."

The Village filed a motion for summary judgment, arguing that prior to the 1990 amendment of section 11--10--2 it had the option of paying the fire insurance tax proceeds to the fire department treasurer or to the firefighters' pension fund, and it opted to pay into the pension fund. The Village further argued that upon amendment of the statute, and the elimination of the option to pay the tax proceeds to the firefighters' pension fund, it did not comply with section 11--10--2 because the statute "is a violation of" the State Mandates Act (30 ILCS 805/1 et seq. (West 1996)). More specifically, the Village maintained that the creation of the Board, under the amended statute, created a personnel mandate within the meaning of the State Mandates Act because the Village would have to pay overtime wages to firefighter members elected to the Board for their service on the Board pursuant to the Fair Labor Standards Act (FLSA). 29 U.S.C.