IGA Joint Defense Agreement -Primeco Lawsuit 11-25-2003 RESOLUTION 2003-AG-TELECOM-IMF-R-862
RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT
FOR THE JOINT DEFENSE OF THE PRIMECO LAWSUIT
WHEREAS, the 1970 Illinois Constitution provides that units of local government may
contract and otherwise associate amongst themselves and with individuals, associations and
corporations in any manner not prohibited by law or ordinance(Illinois Constitution, 1970,Article
VII, Section 10); and
WHEREAS, PrimeCo and a number of other plaintiffs have filed a lawsuit in the Circuit
Court of Cook County objecting to the validity of the Municipal Infrastructure Maintenance Fee
(the"Cook County Lawsuit"); and
WHEREAS,many municipalities in DuPage County adopted such a fee; and
WHEREAS,the trial court has certified a class of defendants composed of all municipalities
which established and collected such a fee and has set a date for members of the defending class to
opt out of the class action suit; and
WHEREAS,the municipalities that have executed the"Intergovernmental Agreement for the
Joint Defense of the PrimeCo Lawsuit" which is attached hereto as Exhibit "A" (the
"Intergovernmental Agreement"),believe that a joint defense of litigation arising out of the validity
of the IMF, wherever brought, should be provided by DuPage County municipalities (the "Joint
Defense"); and
WHEREAS, it is contemplated that, if DuPage County municipalities opt out of the Cook
County Lawsuit, they may be sued separately in Cook County, but that those cases would then be
transferred to DuPage County, or a new lawsuit may be instituted in DuPage County; and
WHEREAS,the municipalities that have executed the Intergovernmental Agreement wish to
become Members of a defense consortium to provide a Joint Defense under the mechanism set forth
in the Intergovernmental Agreement for the operation of such consortium,to be named the PrimeCo
Defense Consortium ("PDC");
WHEREAS, the Board of Trustees of the Village of Oak Brook (the "Village") has
determined that being a member of the PDC is in the best interest of the Village and has determined
to approve the Intergovernmental Agreement,
Resolution 2003-AG-TELECOM-IMF-R-862
Approving an Integovemmental Agreement for the
Joint Defense of the PrimeCo Lawsuit,Page 2
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF OAK BROOK, DUPAGE COUNTY, ILLINOIS, AS
FOLLOWS:
Section 1: The Intergovernmental Agreement is hereby approved,and the President and
Village Clerk are,respectively,authorized to execute and attest the Intergovernmental Agreement in
substantially the form attached hereto as Exhibit A.
Section 2. All resolutions or parts of resolutions in conflict with the provisions of this
Resolution are hereby repealed to the extent of the conflict.
Section 3. This Resolution shall be in full force and effect from and after its passage and
approval as provided by law.
PASSED AND APPROVED this 25th day of November ,2003 by the President and
Board of Trustees of the Village of Oak Brook,DuPage and Cook Counties,Illinois, according to a
roll call vote as follows:
Ayes: Trustees Caleel, Craig, Korin, Miologos and Yusuf
Nays:
Absent:
Abstain: None
UPresident
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EXHIBIT
INTERGOVERNMENTAL AGREEMENT
FOR THE JOINT DEFENSE OF THE
PRIMECO LAWSUIT
WHEREAS, PrimeCo and a number of other plaintiffs have filed a lawsuit in the Circuit
Court of Cook County objecting to the validity of the Municipal Infrastructure Maintenance Fee
("IMF") (the"Cook County Lawsuit"); and
WHEREAS, many municipalities in DuPage County adopted such a fee; and
WHEREAS, the trial court has certified a class of defendants composed of all
municipalities which established and collected such a fee and has set a date for members of the
defending class to opt out of the class action suit; and
WHEREAS, the municipalities which have executed this intergovernmental agreement
believe that a joint defense of litigation, arising out of the validity of the IMF, wherever brought,
should be provided by DuPage County municipalities (the"Joint Defense"); and
WHEREAS, it is contemplated that, if DuPage County municipalities opt out of the Cook
County Lawsuit, they may be sued separately in Cook County, but that those cases would then be
transferred to DuPage County, or a new lawsuit may be instituted in DuPage County; and
WHEREAS, the municipalities wish to become Members of a defense consortium to
provide a common defense under the mechanism for the operation of that consortium to be named
the PrimeCo Defense Consortium ("PDC");
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES MADE
i
HEREIN, THE MUNICIPALITIES WHICH EXECUTE THIS INTERGOVERNMENTAL
AGREEMENT, UNDER THE AUTHORITY OF THE CONSTITUTION AND STATUTES OF '
THE STATE, TO BECOME MEMBERS OF THE PDC DO AGREE, as follows:
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("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, 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 payment
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
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
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
3
participation, but the Consortium may agree to pay actual out-of-pocket expenses. The 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 individual
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 continue in
existence, which shall require the unanimous vote of all of the Members present. A lesser number
of Members may create a new Consortium.
6. In the event that the PDC is terminated, then any funds remaining, after all of its
expenses have been paid, shall be returned to the Members in the same proportion as the 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.
VILLAGE OF OAK BROOK
By:
0ne5Q;uinlanj)Kesident
K,w ella, Village Clerk
Kathy\VOB\Agreements\PrimeCo Inter Agr
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VILLAGE OF OAK BROOK
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°a o Village Board Transmittal Memorandum
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DATE: November 20, 2003
SUBJECT: PrimeCo Class Action Litigation
FROM: Kenneth T. Kubiesa, Village Attorney
RECOMMENDATION: That the Village Attorney recommends approval of the Resolution
to opt-out of the PrimeCo Class Action litigation in Cook County,
Illinois and join, by Intergovernmental Agreement, the DuPage
County Defense Consortium.
In the packet you will find a Resolution authorizing the Village to "opt-out" from the Defendant Class
in the PrimeCo Cook County class action litigation. That"opt-out"is contingent upon formation of the
defense consortium of DuPage County Communities. A Resolution authorizing the Village's entry into
that Consortium is in this packet. Once fifteen (15) DuPage municipalities approve the
Intergovernmental Agreement, the consortium will be formed. I expect that based upon the meeting
that I attended, that there will be more than fifteen (15) DuPage communities joining the consortium.
Once the consortium has been formed, the Village's Request for Exclusion from the Defendant Class
will be filed with the Cook County Circuit Court, and I expect shortly thereafter, the Court there will
enter an order excluding the Village of Elmhurst from the class. The Resolution approving entry into
the Intergovernmental Agreement and a check for $4,000 needs to be provided by December 8, 2003,
for the Village's entry into that consortium.
The defense consortium will defend the wireless and landlines IMF litigation. The members of
the DuPage consortium feel its in their best interest to defend it as a group here in DuPage County. We
feel that that's a better venue for the case and would allow the DuPage County municipalities to see
what happens in Cook County and tailor their defense accordingly. The cost of defense will be
allocated upon the exposure of each community. The Village of Oak Brook's exposure is $1.5 million.
I recommend the Village join the consortium.
H:\Kathy\VOB\Ordinance\primecoM
primecoAdoc
1
4. B. 6) Water Resources, Inc. —Payout#8 -Automatic Meter Reading System -
$114,275.00
C. APPROVAL OF PAYROLL FOR PAY PERIOD ENDING NOVEMBER
8, 2003 - $779,060.69 PYRL-$779,060,.69
D. CHANGE ORDERS: None. CHNG ORDERS
E. REFERRALS: None. REFERRALS
F. AUTHORIZATION TO SEEK BIDS OR PROPOSALS OR NEGOTIATE SK BIDS,PROP,
CONTRACTS: None. CNTRCTS
G. PROPOSED 2004 MUNICIPAL BUDGET—PLACE ON FILE FOR
PL ON FILE-2004
PUBLIC REVIEW BDGT
H. CANCELLATION OF THE DECEMBER 22, 2003 COMMITTEE-OF- CNCL 12-22-03 COW
MTG&12-23-03
THE-WHOLE AND THE DECEMBER 23, 2003 REGULAR BOARD OF REG BD MTG
TRUSTEES MEETING
I. ACCEPT AND PLACE ON FILE — TREASURER'S REPORT OF TREAS RPT-10-03
OCTOBER, 2003
J. A UTHORIZATION TO PAY BILLS ON DECEMBER 23, 2003 AUTH PAY BILS 12-
23-03
K. ORDINANCE 2003-PW+SWM-FEE-G-736, "AN ORDINANCE ORD03-PW+SWM
AMENDING SECTION 8-5-2.A(1) OF CHAPTER 8 AND SECTION 9-7- FEE-G-,36-FEES
8.A OF CHAPTER 9 OF THE VILLAGE CODE OF THE VILLAGE OF
OAK BROOK RELATING TO FEES"
L. RESOLUTION 2003-R-861, "A RESOLUTION AUTHORIZING A RES 03-R-861-AUTH
EXCLFRM
REQUEST FOR EXCLUSION FROM THE PRIMECO DEFENDANT PRIMECO DFNDNT
SUBCLASS"
OM RESOLUTION 2003-R-862, "A RESOLUTION APPROVING AN RES 03-R-862-APPV
INTGVNMNTL AGR
INTERGOVERNMENTAL AGREEMENT FOR THE JOINT DEFENSE -JNT DFNSE OF
OF THE PRIMECO LAWSUIT" PRIMECO LAWST
N. PURCHASE OF VEHICLE PURCH VEHICLE
5. ITEMS REMOVED FROM CONSENT AGENDA: None. RMVD C AGNDA
6. BOARD & COMMISSION RECOMMENDATIONS: None. BD/COMM RECOM
VILLAGE OF OAK BROOK Minutes Page 3 of 9 November 25, 2003
RESOLUTION 2003-TELECOM-IMF-R-861
RESOLUTION AUTHORIZING A REQUEST FOR EXCLUSION
FROM THE PRIMECO DEFENDANT SUBCLASS
WHEREAS,the Village of Oak Brook(the"Village")has received a Notice of Pendency of
Class Action in the lawsuit styled as PrimeCo Personal Communications, L.P. et al. V. Illinois
Commerce Commission et al., No. 98 CH 5500(Cir. Ct. Cook County)(the"PrimeCo Litigation");
and
WHEREAS, the Village has tentatively been included as a defendant in the PrimeCo
Litigation as a member of PrimeCo Defendant Subclass pursuant to the Notice of Pendency of Class
Action attached hereto as Exhibit 1 and made a part hereof; and
WHEREAS,the President and Board of Trustees find and hereby declare that it is in the best
interests of the Village to be excluded from the PrimeCo Defendant Subclass;
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF OAK BROOK, DUPAGE COUNTY, ILLINOIS, AS
FOLLOWS:
Section 1: The recitals set forth hereinabove shall be and are hereby incorporated as if said
recitals were fully set forth within this Section One.
Section 2: The Village hereby exercises its right to request exclusion from the PrimeCo
Defendant Subclass after formation of the PrimeCo Joint Defense Consortium consisting of DuPage
municipalities cooperating in the defense of this lawsuit,and authorizes and directs the President,as
its authorized representative,to execute any and all documents necessary or desirable to effectuate
said exclusion.
Section 3: Any policy or resolution of the Village that conflicts with the provisions of this
resolution shall be and is hereby repealed to the extent of such conflict.
Section 4: This resolution shall be in full force and effect from and after its passage and
approval in the manner provided by law.
Resolution 2003-TELECOM-IMF-R-861
Authorizing a Request for Exclusion from
the PrimeCo Defendant Subclass,Page 2
PASSED AND APPROVED this 25th day of November , 2003 by the President and
Board of Trustees of the Village of Oak Brook,DuPage and Cook Counties,Illinois, according to a
roll call vote as follows:
Ayes: Trustees Caleel, Craig, Korin, Miologos and Yusuf
Nays: None
Absent: Trustee Aktipis
Abstain: None
V' age President
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-2—
4. B. 6) Water Resources, Inc. —Payout#8 —Automatic Meter Reading System -
$114,275.00
C. APPROVAL OF PAYROLL FOR PAY PERIOD ENDING NOVEMBER
8, 2003 - $779,060.69 PYRL-$779,060,.69
D. CHANGE ORDERS: None. CHNG ORDERS
E. REFERRALS: None. REFERRALS
F. AUTHORIZATION TO SEEK BIDS OR PROPOSALS OR NEGOTIATE SK BIDS,PROP,
CNTRCTS
CONTRACTS: None.
G. PROPOSED 2004 MUNICIPAL BUDGET—PLACE ON FILE FOR
PL ON FILE-2004
PUBLIC REVIEW BDGT
H. CANCELLATION OF THE DECEMBER 22 2003 COMMITTEE-OF- CNCL 12-22-03 COW
MTG&12-23-03
THE-WHOLE AND THE DECEMBER 23, 2003 REGULAR BOARD OF REG BD MTG
TRUSTEES MEETING
I. ACCEPT AND PLACE ON FILE — TREASURER'S REPORT OF TREAS RPT-10-03
OCTOBER, 2003
J. AUTHORIZATION TO PAY BILLS ON DECEMBER 23, 2003 AUTH PAY BILS 12-
23-03
K. ORDINANCE 2003-PW+SWM-FEE-G-736 "AN ORDINANCE ORD 03-PW+SWM-
AMENDING SECTION 8-5-2.A(1) OF CHAPTER 8 AND SECTION 9-7- FEE-G-736-FEES
8.A OF CHAPTER 9 OF THE VILLAGE CODE OF THE VILLAGE OF
OAK BROOK RELATING TO FEES"
RESOLUTION 2003-R-861 "A RESOLUTION AUTHORIZING A RES 03-R-861-AUTH
EXCLFRM
REQUEST FOR EXCLUSION FROM THE PRIMECO DEFENDANT PRIMECO DFNDNT
L. T
SUBCLASS" .
M. RESOLUTION 2003-R-862 "A RESOLUTION APPROVING AN RES 03-R-862-APPV
INTGVNMNTL AGR
INTERGOVERNMENTAL AGREEMENT FOR THE JOINT DEFENSE -JNT DFNSE OF
OF THE PRIMECO LAWSUIT" PRIMECO LAWST
N. PURCHASE OF VEHICLE PURCH VEHICLE
5. ITEMS REMOVED FROM CONSENT AGENDA: None. RMVD C AGNDA
6. BOARD & COMMISSION RECOMMENDATIONS: None. BD/COMM RECOM
VILLAGE OF OAK BROOK Minutes Page 3 of 9 November 25, 2003
RESOLUTION 2004-AG-TELECOM-IMF-EXI-R-872
RESOLUTION TO ENTER INTO AN INTERGOVERNMENTAL
AGREEMENT FOR JOINT DEFENSE OF THE PRIMECO LITIGATION
WHEREAS,the Village of Oak Brook(the"Village")has received a Notice of Pendency of
Class Action in the lawsuit concerning the Infrastructure Maintenance Fee ("Tw"), styled as
PrimeCo Personal Communications,L.P. et al. v.Illinois Commerce Commission et al., No. 98 CH
5500 (Cir. Ct. Cook County) (the "PrimeCo Litigation"); and
WHEREAS, in the PrimeCo Litigation,the Cook County Circuit Court has certified a class
of defendants composed of all municipalities in Illinois that established and collectively the IMF and
has set a date for members of the defending class to exclude themselves ("opt-out"); and
WHEREAS, the Village has opted-out of the PrimeCo Litigation and, therefore, it may be
sued separately in Cook County,but such case then would be transferred to DuPage County, or a
new lawsuit may be instituted in DuPage County; and
WHEREAS,the Village has heretofore expressed its intent to become a member of a defense
consortium of those DuPage County municipalities opting-out of the PrimeCo Litigation by its
enactment of a resolution authorizing entry into a prior defense consortium intergovernmental
agreement; and
WHEREAS, this Intergovernmental Agreement will provide for a common defense to any
litigation concerning the IMF brought against the DuPage County municipalities entering into same;
and
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF OAK BROOK, DUPAGE COUNTY, ILLINOIS, AS
FOLLOWS:
Section 1: The Intergovernmental Agreement for the Joint Defense of the PrimeCo lawsuit
as submitted to this meeting is hereby approved and the Village President and Village Clerk are
hereby authorized to execute said Agreement, substantially in the form submitted, on behalf of the
Village.
Section 2: Any policy or resolution of the Village that conflicts with the provisions of this
resolution shall be and is hereby repealed to the extent of such conflict.
Resolution 2004 AG-TELECOM-IMF-EXl-R- 872
To Enter into an Intergovernmental Agreement for
Joint Defense of the PrimeCo Litigation,Page 2
Section 3: This resolution shall be in full force and effect from and after its passage and
approval in the manner provided by law.
Approved this 10th day of February , 2004.
Villag esident
Passed this 10th day of February , 2004.
Ayes: Trustees Aktipis, Caleel, Korin, Miologos and Yusuf
Nays: None
Absent: Trustee Craig
o ASST:
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8. A. 1) Motion by Trustee Caleel, seconded by Trustee Korin, to accept
President Quinlan's recommendation and appoint Linda K. Gonnella to
the 2004 Autumn Festival Committee. VOICE VOTE: Motion carried.
B. ORDINANCES &RESOLUTIONS: oxD/RES
1) RESOLUTION 2004-AG-TELECOM-IMF-EXI-R-872 RES 04-AG-
"RESOLUTION TO ENTER INTO AN INTERGOVERNMENTAL R"-8'-72 fNTGOV.
AGREEMENT FOR JOINT DEFENSE OF THE PRIMECO AGRMNT DEFEND
LITIGATION" PRIMECo
In December, the Village Board approved an Intergovernmental
Agreement that required fifteen (15) communities to enter into that
Agreement before it became effective. Only thirteen (13) communities
entered into that Agreement and subsequently, attorneys from all of the
DuPage County municipalities prepared a revised Agreement for joint
defense that appears now that twenty five (25) DuPage County.
Municipalities will be entering into. The Intergovernmental Agreement
provides for sharing of costs for defense of the Infrastructure
Maintenance Fee class action cases that seek refunds of those fees
collected from 1998 through January of 2002, when the Illinois
Supreme Court determined that the local Infrastructure Maintenance
Fees for wireless were unconstitutional. The Village of Oak Brook's
total exposure on both wireless and landline IMF is approximately
$1.575 million.
Motion by Trustee Korin, seconded by Trustee Caleel, for passage of
Resolution 2004-AG-TELECOM-IMF-EXI-R-872, "Resolution to
Enter Into an Intergovernmental Agreement for Joint Defense of the
Primeco Litigation", authorizing entry into a Joint Defense
Intergovernmental Agreement by and between certain DuPage County
municipalities for defense for a current or future Infrastructure
Maintenance Fee (IMF) class action litigation. ROLL CALL VOTE:
Ayes: 5 - Trustees Aktipis, Caleel, Korin, Miologos and Yusuf.
Nays: 0 - None.
Absent: 1 - Trustee Craig. Motion carried.
C. AWARD OF CONTRACTS: None. AWARD CT
9. NEW BUSINESS: NEW BUSINESS
A. CONFIRMATION OF APPOINTMENTS: None. CNFRM APPTS
B. ORDINANCES & RESOLUTIONS: oRD/RES
VILLAGE OF OAK BROOK Minutes Page 6 of 15 February 10, 2004