R-862 - 11/25/2003 - AGREEMENT - Resolutions ExhibitsE
INTERGOVERNMENTAL AGREEMENT
FOR THE JOINT DEFENSE OF THE
PRIMECO LAWSUIT
WHEREAS, PrimeCo and a number of other plaintiffs have filed a lawsuit in
Court of Cook County objecting to the validity of the Municipal Infrastructure Maint
( "IMF ")I (the "Cook County Lawsuit "); and
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WHEREAS, many municipalities in DuPage County adopted such a fee; and
WHEREAS, the trial court has certified a class of defendants compo
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municipalities which established and collected such a fee and has set a date for mem
defending class to opt out of the class action suit; and
WHEREAS, the municipalities which have executed this intergovernmental
believe that a joint defense of litigation, arising out of the validity of the IMF, wherever
should be provided by DuPage County municipalities (the "Joint Defense "); and
WHEREAS, it is contemplated that, if DuPage County municipalities opt out of
County Lawsuit, they may be sued separately in Cook County, but that those cases w
transferred to DuPage County, or a new lawsuit may be instituted in DuPage County;
WHEREAS, the municipalities wish to become Members of a defense cons(
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provided' common defense under the mechanism for the operation of that consortium to 1
the PrimeCo Defense Consortium ( "PDC ");
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISE;
HEREIN, THE MUNICIPALITIES WHICH EXECUTE THIS INTERGOVERNN
AGREEMENT, UNDER THE AUTHORITY OF THE CONSTITUTION AND STATI
THE STATE, TO BECOME MEMBERS OF THE PDC DO AGREE, as follows:
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1. All Members of the PDC shall opt out, if permitted to do so, from all lawsuits in
counties other than DuPage in which the validity of the Infrastructure Maintenance Fee (j IMF ") is
contested, and shall permit a Joint Defense to be provided.
2. It is estimated that the cost of defense of the PrimeCo suit and other related attacks
on the IMF will likely be up to $150,000.00. Each Member agrees to pay its proportional share
of the costs of the Joint Defense up to $150,000.00, plus a contribution to the defense of the Cook
County ;Lawsuit, if authorized by the PDC Board of Directors, of up to $.10 per capita or
$500.00'9 whichever is greater. A deposit sum of $4,000.00 shall be paid to the PDC along with
the submission of this Intergovernmental Agreement. All defense costs other than the possible per
capita payment of $.10 per capita shall be allocated on a proportional basis and with the ipayment
for the defense of the Cook County Lawsuit being an additional amount.
Members' proportional contributions shall be based upon the proportion by which their
receipts from the IMF, during the period of its existence, bears to those receipts from all other
then Member municipalities. The Steering Committee shall request information from the
Members and, along with other data, shall determine the appropriate proportions.
3. The operations of the PDC shall be conducted by a Board of Directors and a
Steering Committee. The Board of Directors shall be composed of one representative from each
municipality, which is then a member of the PDC. The Board shall select officers and a Steering
Committee. The Board of Directors shall meet on the call of its Chairman or at least three (3) of
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its Members and is intended that the operations of the PDC will generally be conducted by a
Steering, Committee. The Board of Directors, by a two -third (2/3) vote of a quorum, may
overrule any prospective decision of the Steering Committee.
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The Board of Directors shall provide for the membership and powers of the! Steering
Committee. In organizing the Steering Committee the Board of Directors shall specifically
consider the number of members and the requirement for a quorum, the size of majority required
to exercise certain of the powers delegated to the Steering Committee, whether members of the
Steering Committee must also be members of the Board of Directors, a requirement for alternate
members, a procedure for filling vacancies and the maximum amount of any financial transactions
which may be entered without prior Board approval.
The Steering Committee shall be permitted to call for additional funds and make financial
decisions up to the maximum amount established in this Intergovernmental Agreement, or such
additional funds as are agreed to at any time by a Member at a Board of Directors meeting, on a
motion to increase the maximum contribution. A Member who does not promptly pay a
contribution amount due may be expelled from membership by the Steering Committee and the
joint defense provided for that Member shall be thereby withdrawn. A Member may, at any time,
withdraw from the PDC, but it shall, nonetheless, be financially obligated for its proportional
share of the maximum amounts specified herein or previously agreed to by that Member through
the vote of its representative on a motion to increase the maximum contribution. If a Member
should withdraw from the PDC, both that Member and the PDC shall honor the principles of
confidentiality and privilege in future dealings and actions. Members shall be required to name a
representative for the Board of Directors and, if selected, at the Steering Committee level.
4. The Steering Committee shall be responsible for all operational decisions of the
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Consortium, including the employment of consultants and the strategy to be utilized in the
litigation No member of the Steering Committee shall receive compensation for his or her
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participation, but the Consortium may agree to pay actual out -of- pocket expenses. Thel Steering
Committee may choose a Member to serve as the Administrative Municipality with reporting,
clerical and other obligations and shall reimburse that Administrative Municipality for its actual
costs.
5. This Intergovernmental Agreement, subject to the withdrawal of i I dividual
Members, which will not terminate their financial obligation, as provided for herein, shall
continue until the PrimeCo lawsuits involving Members and the IMF are resolved. Provided,
however, that in the event that there shall be fewer than twelve (12) municipal Members at any
time, the remaining Members shall meet to determine whether the PDC shall cortinue in
existence, which shall require the unanimous vote of all of the Members present. A lesser number
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of Members may create a new Consortium.
6. In the event that the PDC is terminated, then any funds remaining, after Jall of its
expenses have been paid, shall be returned to the Members in the same proportion as Ithe final
Members remaining in the Consortium at the time of its termination bears to the contributions of
the other final Members.
7. This Intergovernmental Agreement shall not become effective or be in full force
and effect until the Village of Carol Stream, which will serve as the initial administrative agency
for the PDC in formation, shall have received executed intergovernmental agreements and checks
from at least fifteen (15) municipalities in DuPage County before December 8, 2003. In the event
that the organization does not come into existence, then these checks or the proceeds from the
checks shall be returned to the prospective Members.
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8. This Intergovernmental Agreement may be executed in counter -parts and in the
event that the enforcement of this Agreement against Members shall result in administrative or
legal costs, those costs shall be recovered in addition to the original amounts sought.
DATED: November 25 , 2003.
ella, Village Clerk
Kathy \VOB \Agreements \PrirneCo Inter Agr
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VILLAGE OF OAK BROOK
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