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HomeMy WebLinkAboutRes 2003-30c L RESOLUTION NO.2003-30 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS,ARIZONA,ACCEPTING AND APPROVING THE TOWN JOINING AN INTERGOVERNMENTAL AGREEMENT WITH PIMA COUNTY AND THE CITY OF CHANDLER RELATING TO THE FORMATION OF THE ARIZONA PUBLIC ENTITY NCFE LOSS RECOVERY COALITION. WHEREAS,Pima County andtheCityof Chandler have entered intoan intergovernmental agreement approving theformationofthe Arizona Public Entity NCFELoss Recovery Coalition (the "Agreement");and WHEREAS,the Arizona Public Entity NCFELoss Recovery Coalition (the "Coalition") isanon-profit corporation organized to represented theinterestsof Arizona publicentitiesinthe bankruptcy of National Century Financial Enterprises (the "Bankruptcy");and WHEREAS,the Town of Fountain Hills (the "Town")desires tohaveits interests protected inthe Bankruptcy by the Coalition. NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS,as follows: SECTION 1.That the Town hereby approves joining inthe Agreement relating tothe formation of the Coalition intheform attached hereto as Exhibit Aand incorporated hereinby reference. SECTION 2.That the Mayor,the Town Manager,the Town Clerk and the Town Attorney are hereby authorized and directed to execute a signature page thatwill become part of the Agreement. PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills, June 5,2003. FORT F FOUNTAIN HILLS: W.J.Nicjjo1s',-Mayor REVIEWED BY: Tim G.Pickering,Town Manager 9I96.001V2003 NCFE.res.dOC 5-30-03-1 ATTESTED TO: JIAL Bevelyn J.R^nderpfown Clerk APPROVED AS TO FORM: Andrew J.McGuire,Town Attorney ARIZONA PUBLIC ENTITY NCFE LOSS RECOVERY INTERGOVERNMENTAL AGREEMENT WHEREAS A.R.S.§§11-951,etseq.,provideforand authorize public agencies toenterinto contractsoragreements,includingthoseforthecontractingofservicesandthejointexerciseof powerscommontothe contracting partiesandfor joint cooperative action,and WHEREASasaconsequenceoftheinsolvencyandensuingbankruptcyofNationalCentury Financial Enterprises,anOhiocorporation("NCFE"),inwhichvariouspublicagencies,including thepartieshereto,had pooled investment fundsthroughtheOfficeofthe Treasurer oftheStateof Arizonapursuanttostatelaw,significantlossesand/orclaimshaveaccruedtotheparties,and WHEREASitisthedesireofthepartiesheretotohavetheircollectiveinterestsprotected throughjointparticipation,coordinationandpursuitofallavailablelegalremediesontheirbehalfby aco-ordinatingbody,hereinafter identified,empowered toactregardingrecoveryofthelosses, claimsand/orcausesofactionasstatedtowhichthepartiesmaybeentitled,includingthe identificationandretentionoflegalcounseltorepresentthepartiesandthe co-ordinating body empowered toacton their behalf tobe selected pursuant tothe authorizations conveyed hereinand otherwise consistent with applicable law,provided,however,that nothing herein shallbe construed to interfere with pursuit of the parties'claims inthe NCFE Ohio bankruptcy proceeding,Jointly Administered Case No.02-65235,Eastern Division,Southern District of Ohio,United States Bankruptcy Court,pursuant to proofs of claim heretofore filedon their behalf bythe Office of the Arizona Attorney General,and providedfurther thatnopartyorpublicagency seeking tojoininthis 1 Xfe/* agreement mayjoinor remain a party iftodoso would createeithera conflict of interest in fact ora legal representational conflict,and WHEREAS itis the desire of the parties to limit and confine participation in this agreement to those public agencies,as defined in A.R.S.§11-951,which deposited funds with and for the purpose of investment by the Treasurer of the State of Arizona in the local government investment pool ("LGIP")authorized by Arizona law and which is the subject of the losses and claims pursued intheOhioNCFE bankruptcy proceeding undertheproofsofclaim heretofore filed therein andon theirbehalfbytheOfficeoftheArizonaAttorneyGeneral; NOW,THEREFORE,theundersignedagreeas follows: 1.The duration of this intergovernmental agreement shall begin on the day ofMay, 2003 and shall continue through and including that date which is thirty (30)days C following the entry of any final and non-appealed judgment ina court of competent jurisdictionor,inlieuthereof,executionofanyfinalsettlementofclaims,hereinafter described,arisingoutofthepursuitthroughretainedlegal counsel ofsaid claims,and continuing through distribution of recovered funds,if any,and final auditprovided, however,thatintheeventthatallpartiestothis agreement concurina determination toterminatethisagreementintheabsenceofafinaljudgmentorsettlement,the agreementmaythenbe terminated by unanimous consent; 2.Itis agreed bythe parties that conflicts and inter-party claims with respect to losses and claims arising from or involving and/or relating tothe insolvency and ensuing bankruptcy ofNCFE,asdescribedherein,againstotherpartiesare waived,provided, however,thatthis provision shallnotbe construed aswaivinganyclaims against the Stateof Arizona and/or the Treasurer ofthe State of Arizona; 3.Itis agreed bythe parties thatthe co-ordinating body referenced in f 6ofthis agreementisspecificallyauthorizedtoserveastheagent,inlawandinfact,forthe partiesandthepartiesagreetoholdtheco-ordinatingbodyharmlessforallacts performedingoodfaithandinconformitywiththisagreementonbehalfofthe parties; 4.Thepurposeofthis intergovernmental agreementistoconveyand delegate tothe entityhereinafteridentified,asapplicableorappropriate,the decision-making authorityforall litigation-related issuesregardingthenotesand investments for whichrecoveryissought,including therightstopursuerecovery,andallthe authorityandresponsibilitytoselect,retainandsupervisecompetentlegalcounsel, andtofileclaimsandinitiatelitigation provided,however,thatthepartiesshallretain alloftheright,titleandinterestintheir individual respectivenotesandinvestments as described herein; 5.Itisagreedthatthescopeofrepresentationshallincluderepresentationoftheparties andthe co-ordinating body,actingon behalf ofthelegal interests ofeach participating party,with respect tolossesand claims arising fromorinvolvingand/or relating tothe insolvency and ensuing bankruptcy of NCFE as described herein, including analysisand determination of anythird parties whoorwhichmightbeheld responsible,whether on grounds of fraud,breach of fiduciary duty,negligence or other grounds,for the said losses and claims; 6.The parties agree that forthe purpose of pursuing the objectives and purposes of this agreement,a separate nonprofit corporation,tobeknownasthe "Arizona Public Entity NCFE Loss Recovery Coalition,Inc."as authorized under A.R.S.§11-952(A), is created,tobe governed bya Board of Directors consisting of nine (9)members comprised of: A.four(4)members representing Arizona municipalities,oneeachforthecities of Chandler,Mesaand Scottsdale andone at-large member,tobe appointed bythe League of Arizona Citiesand Towns,representing the remaining signatory municipalities; Btwo(2)members representing Arizona counties,one member forPima County andone at-large member representing the remaining signatory counties; 1.one(1)member representing thesignatoryschooldistricts,community college districts and universities; 2.one(1)memberrepresentingthesignatoryspecialtaxingdistricts;and 3.one(1)member representing the interests oftheGilaRiverIndian Community; Itisagreedthat,inordertofacilitatethe expeditious implementationofthis agreementandpromoteits objectives,asaninitialandtemporaryChairoftheBoard ofDirectorsofthenonprofitcorporationreferencedin (fl 6,theat-largemunicipality member representative appointed bythe League of Arizona Citiesand Towns is approved and appointed to serve insaid capacity untilsuchtimeasthefullboard of directors may determine to elect anewor different Chair and/or voteto continue said member as Chair onan indefinite basis; 8.It is agreed that for the purposes of this agreement relating to the identification and selection of outside legal counsel as described herein,the nonprofit corporation Board of Directors and/or initial Chair shall select and utilize the procurement code and/or procedures of one of the public agency parties hereto to implement the objectives of this agreement.If the selected procurement code or procedure requires thesignatureofanofficer,theboard,throughitsChair,isauthorizedtosoexecute. The board is also authorized to utilize,to the extent practicable,agreements and/or contractual procedures presently existing between parties and their respective qualifiedoutsidecontractlegalcounsel,ifany,to facilitate adherence tothe requirements forthe selection and retention of counsel for outside legal services under circumstances implication litigation; 9.Itis the intent of this provision that such existing outside legal counsel may be utilized ina co-counsel role,as necessary,with any additional outside legal counsel selected bythe entity board andto facilitate representation ofthe parties in Arizona by such selected counsel ifnot otherwise licensed in Arizona,including existing outside legal counsel,new outside counsel or internally-employed legal counsel for oneor more of the parties; 10.The separate nonprofit corporation shall be invested with the authority to establish all necessarypoliciesandprocedures,including bylaws,consistent withandin furtherance ofthe implementation and attainment ofthe objectives ofthis agreement; 11.TheinitialinterimChairoftheBoardof Directors shallhavethe authority to execute this agreement on behalf of and for the benefit of the parties,which authority shall also include the power to execute the agreement with any additional qualified participants desiring to join and to open and maintain a checking account for deposits and disbursements of funds for the purposes and in furtherance of the objectives of this agreement,all drafts against said account to require the signatures of the Chair andone(1)other boardmember,provided,however,thatsaidaccountshallbe opened and maintained ata financial institution which presents no conflicts of interest with those of the participating parties to this agreement relating to its subject matter; 12.Thepartiesagreethat,withrespecttothe identification,selection and retention of anyoutsidelegalcounselforthepurposessetforthherein,anaffirmativevoteoftwo- thirds (2/3)of the board members present,including members participating by electronic means,shall be required.The parties also agree that with respect to any substantive matters other thanthe identification,selection and retention of outside legalcounselcomingbeforetheboard,asimplemajorityvoteoftheboard members present,including members participating by electronic means,shall be required, provided that,any decision regarding whethertosettleor compromise aclaimon behalf of any party shall be made only after consultation with and approval by such party; 13.Itis agreed bythe parties thataparty having not already prepared andfiledan administrative claimagainsttheStateofArizonarelatingtothesubjectmatterofthis agreement pursuant toA.R.S.§§12-821,et seq.,shallnotfilesucha claim unless \^^/ pre-approved by a majority vote of the board and provided further that if any such claim has been filed by a public agency seeking to join this agreement,the party agrees to withdraw said claim; 14.The manner of financing the joint objectives of this agreement shall beto identify and select,throughtheboardand/ortheChair,actingonbehalfofthe board,such competentoutsidecounselonthebasisofsaidcounsel's willingness to undertake the representation ona contingent fee basis,with acknowledgment thatoutof pocket costsand expenses willbe determined and become the responsibility ofthe parties, allocated toeachonapro-ratabasis bearing thesame percentage relative obligation forallocatedcoststothewholeasthe party's individualclaimbearstothewholeof the aggregated parties'claims,provided,however,that,intheeventthatany selected competentoutsidecounselrequiresany"upfront"costretaineruponthecondition thatsaidcounselwillnot"front"costsattendanttothe representation and litigation, theparties agree thattheywilleachbearsuchcosts,asbilled,onthesame pro-rata basis as heretofore described; 15.Theparties agree that,in recognition ofthe circumstance that certain expenses, includinginitial"start-up"costs,maybeincurredfornecessaryoperationalpurposes relatedtotheobjectivesofthisagreement,theparties-participantstheCountyof Pima,Arizona,theCity of Chandler,Arizona,theCityof Scottsdale,Arizona,the MaricopaCountyCommunityCollegeDistrictandtheGila River IndianCommunity agreetobudgetsufficientfundstoaddressthesaidinitialorcontinuingoperational costsrelatedtothepurposesofthisagreement,apartfromandinadditiontoany litigation costs which may be incurred within the terms and conditions off 16 ofthis agreement,and initially each will contribute to and deposit with the board,through the Chair,the sum of Five Thousand Dollars ($5,000.00)for such operational purposes,and such additional amounts as may by mutual agreement ofsaid "start-up" initial contributors be deemed necessary,contingent upon recognition by all other parties hereto,as evidenced by such other parties'execution of this agreement,ofthe right of each "start-up"fund contributor toan absolute right of reimbursement for such sums from revenues recovered prior to distribution of any loss-claim recoveries, and providedfurther that each party to this agreement,regardless ofdate ofjoining in this agreement,shall be and become liable for such party's allocated costs,including anycostsaccruedpriortosuchparty'sjoining,ifany; 16.The board shall be authorized to make binding decisions on behalf ofand for the benefit of the parties,to make pro-rata disbursements of monies recovered,if any,to the parties and to make pro-rata billings for costs,if any,to the parties,provided that, any decision regarding whether to settle or compromise a claim on behalf of any party shall be made only after consultation with and approval by such party; 17.The permissible method to be employed in accomplishing the partial or complete termination ofthe agreement shall bethe giving ofthirty(30)days'written advance notice,together with a formal action by the parties'respective governing bodies,to each member ofthe board of intent to disassociate from the intergovernmental agreement,provided,however,thatanyandallallocatedcostswhichhaveaccruedto such party priortothe giving of such notice,and formal governing body action N^jjg/ acknowledging the obligation,shall remain the obligation of such withdrawing party, and provided further that,in the event that prior to such notice of disassociation,any agreement shall have been executed onbehalfof such party bythe board with competent outside counsel forthe purposes described herein,any obligation ofthe party forthe payment ofan allocated contingent fee,if any,from monies ultimately recovered asa result of such counsel's services,shall also be satisfied or acknowledged priortothe withdrawal becoming effective astosuch party; 18.Any property,tangible,intangible,personal,real or mixed,which may be acquired underthetermsofthisagreementwill,uponpartialorcompleteterminationofthe agreement,be disposed ofin accordance withthe pro-ratadistribution protocols identified in f 26 of this agreement; 19.With respect toanypartytothis agreement which isa school district as defined by applicable Arizona law,such a party,by executing this agreement,accompanied by writtendocumentationthatitsparticipationhasbeenfirstapprovedbytheArizona StateBoardof Education acknowledgesthe application ofthelimitationson extensions of this agreement as provided under A.R.S.§11-952(1); 20.Thepartiesagreethat,subjecttotheotherrequirementsofthisagreement,theboard shallbeauthorizedtoidentify,select,retainandsupervisecompetentoutsidelegal counselanddirectsuchcounseltofileactions intended toprotecttheinterestsofthe parties,eachoneofwhichpartiesshallbedeemedtobeaclientforlegal representation purposes; 21.Thepartiesagreethattheboardisauthorizedtoadmitadditionalparticipantparties, C subject to the provisions,conditions and restrictions of this agreement; 22.Not less than once each quarter,and more frequently as determined by events identified by retained outside counsel,the Chair of the board shall report to the members of the board on the status of the proceedings and respond to any questions orconcernsofindividualpartiesinthatregard; 23.Each party by execution of this agreement avers that it has complied with the provisions of A.R.S.§11-952(D)regarding submission ofthe agreement toitsown legal counsel for review and confirmation asto form and authorization as granted to such party under the laws of the State of Arizona applicable to such party; 24.Each party acknowledges that finalized executed copies ofthis agreement shall be filedwiththeArizonaSecretaryofStatepursuantto A.R.S.§11-952(G)andthatthe board is designated asthe facilitating entity to ensure compliance with such filing requirement; 25.Itisagreedthatthisagreementissubjecttotheprovisionsof A.R.S.§23-1022 and thatthepartiespostthenoticesrequiredbysuchlaw; 26.Thepartiesagreethatthe distribution tableattachedtothis agreement asExhibit"A" isbythisreference incorporated hereinandmadeapartofthis agreement,which exhibit may be amended from time to time to reflect the addition of additional participants nothavingexecutedtheagreement contemporaneously withthe original signatorieshereto,andthatsaidtableaccuratelyreflectsproceduresforthe accounting forcostsandthe allocation ofmonies recovered,ifany,onapro-rata basis,forthe benefit of eachparty,provided that,included inthecostsfirsttobe 10 reimbursed are those relating to any advanced funds as described in f 15 of this agreement,includingthe"start-up"cost funds heretofore referenced and contributed bythe parties there identified as providing said funds; 27.The parties agree and aver that,by affixing their authorized representatives' signatures to this agreement,each has complied with any and all laws,rules and regulations andhas passed or enacted such necessary resolutions,ordinances or other similar authorizations as are necessary for their execution of this agreement pursuant to A.R.S.§11-952(H); 28.The parties acknowledge and agree that this agreement constitutes the whole ofthe agreementbetweenandamongallpartiesandtheboardandthatitstermsshallnotbe altered or amended except in writing upon the concurrence of all parties,provided that,in the event of the successful identification,selection and retention ofcompetent outside counsel by the board to represent the interests of the parties for the purposes and objectives described herein,anysuch written legal retention contract executed with outside retained legal counsel as provided herein shall be deemed tobea part of this agreement and incorporated herein; 29.This agreement may be executed in multiple counterpart form,with each such counterpart constituting a binding original agreement between and among the parties and the board; 30.Nothing inthis agreement is intended to create,nor shall any provision be construed to authorize the creation of,ajoint venture northe creation ofany rights inorof third-party beneficiaries; 11 Nfjifla/ L 31.It is the intent of the parties and the board that this agreement and its provisions be severable,such that if any portion orportions of the agreement are finally declared to be unlawful or void in a court of competent jurisdiction,the remaining portion or portionsoftheagreementwhichsurviveanysuch determination shall remain valid andenforceableaccordingtotheirterms; 32.Notice is herewith given ofrecognition of the application to this agreement ofA.R.S. §38-511 and Executive Order 99-4 and that the agreement is subject to cancellation onthegroundsofconflictofinterestintheeventofadeterminationofaviolationof eithersaidstatuteor executive order,thetermsofwhichstatuteand executive order arebythisreferenceincorporatedherein; 33.This agreement is entered intoonthedateset forth in f 1 above. PIMA COUNTY,ARIZONA CITY OF CHANDLER,ARIZONA By:By: Title:Title: Approved asto form:Approved asto form: By:By: ACCEPTANCE OF OBLIGATIONS: ArizonaPublicEntityNCFELossRecoveryCoalition,Inc By: Title:Chair EXHIBIT "A" 12 \&jp^ The following table identifies all of the original participants in the intergovernmental agreement to which this exhibit is attached,along with their original investment losses expressed as both a dollar amount and as a percentage of the overall total loss of the original participants. As and when additional participants may join following the date of signing by the original participants,a revised exhibit will be prepared reflecting newly calculated loss claims and corresponding percentage figures tobe utilized forthe purposes ofcost allocations and revenue distributions as may accrue to the participants in the course of performance of the provisions of the agreement,such revised exhibit being deemed to be a clerical revision not constituting a substantive amendment otherwise requiring formal approval as an amendment to the agreement. Allexpenseandcostallocationsandallpro-ratarecoveredrevenuedistributionsshallbe madeinstrictconformitywiththetable percentages hereinafterset forth. 13 (Finalizedlistinprocess) 14