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Home My WebLink About05-102 . 7 Resolution No. 05-102 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT FOR SHARING OF LITIGATION EXPENSES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Ed Schock, Mayor, and Dolonna Mecum, City Clerk,be and are hereby authorized and directed to execute an Agreement for the Sharing of Litigation Expenses on behalf of the City of Elgin regarding the case of PrimeCo Personal Communications et al.v.Illinois Commerce Commission et al.,Case No. 98 CH 5500, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: April 13, 2005 Adopted: April 13, 2005 Vote: Yeas: 6 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk AGREEMENT FOR THE SHARING OF LITIGATION EXPENSES This Agreement is hereby entered into by each municipality and Council of Government (referred to herein as "COG") executing a signature page confirming that they are a party to this Agreement and accept all terms herein. Whereas, various telephone service providers in the State of Illinois, customers of wireless telephone service providers and customers of landline telephone service providers have been engaged in litigation against various municipalities and other public agencies of the State of Illinois in relation to the enforceability and constitutionality of the Municipal Telecommunications Infrastructure Maintenance Fee Act, 35 ILCS 635/1 et seq., (hereinafter referred to as the "IMF") (said litigation collectively referred to as the "Litigation"); Whereas, in June 2001, the Illinois Supreme Court held the IMF to be unconstitutional as applied to customers of wireless service providers, however, the Court did not decide the issue of the constitutionality of the IMF as applied to customers of landline service providers; Whereas, on March 28, 2003, the Circuit Court of Cook County certified the Litigation as a class action (a) identifying plaintiffs as members of three sub-classes, and (b) identifying defendant municipalities as members of three sub-classes, as specified in the court's order of March 28, 2003 (and as clarified in the court's order dated August 5, 2003); Whereas, the Circuit Court of Cook County appointed the Village of Skokie as the defendant class representative for all three defendant sub-classes and appointed Jack Siegel of Holland and Knight LLC as defendant class counsel unless a municipality enters an appearance through separate counsel; Whereas, the parties hereto have decided not to opt-out of the Litigation and therefore agree to jointly provide funds and cover the costs of legal fees and other expenses associated with the Litigation; Now, therefore, in consideration of the mutual promises and obligations, the parties hereby agree to the following terms and provisions: 1. Recitals. The above stated Recitals are restated and incorporated herein as if stated in full. 2. Definitions. The following words or terms shall have the meaning ascribed to them: "Attorneys" shall mean the law firm Holland and Knight LLC, including Jack Siegel, lain Johnston and such other attorneys of the law firm. "Attorneys" shall also mean any other attorney appointed by a court to be a class counsel for the any of the defendant sub- classes or the defendant class. "Attorneys Fees" shall mean the fees billed by the Attorneys. C:\Documents and Settings\idjohnst\Local Settings\Temporary Internet Files\OLK2B8\Skokie IMF Agreement-Final.doc "Defense of the Litigation" shall mean all efforts by the Attorneys to defend against the allegations made by a plaintiff, including but not limited to presentation of defenses on legal issues and damages, affirmative defenses, counter claims or set-offs. "Municipality" or "Municipalities" shall mean a municipality that is a defendant in the Litigation and a party to this Agreement, or in the plural, collectively all municipalities that are parties to this Agreement. "Shared Costs" means the costs incurred in the Defense of the Litigation that the Municipalities have agreed to share and as defined in paragraph 3 below and limited in paragraph 4. 3. Shared Costs. The Municipalities will jointly share all costs and expenses associated with the Defense of the Litigation, including but not limited to, Attorney's Fees, out of pocket expenses incurred by the Attorneys, cost advances made by the Attorneys, paralegal expenses, court costs, court reporter and transcript expenses, expert fees and expenses and any and all expenses incurred in the Defense of the Litigation (hereinafter referred to as the "Shared Costs"). 4. Excluded Costs. Shared Costs does not include the following costs and expenses: A. Fees billed by attorneys other than attorneys appointed as class counsel, or a sub- class counsel, by a court; B. Salaries of employees or other compensation paid to agents of a municipality that may expend time or effort on behalf of the Defense of the Litigation; or C. Any cost or expense associated with any lawsuit or legal proceeding other than the Litigation. 5. Governance. A Committee of Municipalities shall have the primary responsibility for providing guidance to the Attorneys and for communicating with the parties to this Agreement. The Committee shall be comprised of representatives of Municipalities and a representative from each Council of Government (herein referred to as "COG") that is a party to this Agreement. Each COG shall designate two representatives of Municipalities that are members of the respective COG to serve on the Committee. In the event two or less COGs are parties to this Agreement, then each COG will designate three representatives of Municipalities. Representation on the Committee of parties that are not a member of a COG shall be determined by the Committee. 6. Committee of Municipalities. The Committee of Municipalities shall review all invoices or bills submitted in relation to the Shared Costs and approve them for payment. The Committee may reject any invoice or bill that it determines is not appropriate or correct. The Committee shall establish a methodology for assessing and collecting each Municipalities' share of the Shared Costs. The methodology for assessing the Shared Costs shall be on a per capita basis utilizing the Municipalities' population. Each COG shall have the responsibility of communicating and collecting the assessments from the Municipalities that are members the respective COG. 7. Payment. Each Municipality shall make a payment for Shared Costs in amount equal to its population times twenty-five cents (population x $.25). Such other payments shall be made at the time, and in the amounts, as determined by the Committee of Municipalities. At such time as all Litigation is ended, any funds remaining shall be returned to the Municipalities on a per capita basis. Nothing in this Agreement precludes a Municipality from withdrawing from this Agreement, however, the withdrawing Municipality shall not be entitled to withdraw any of the initial amount paid pursuant to the first sentence of this paragraph. 8. COG. Any and all expenses incurred by a COG shall be borne solely by the respective COG and shall not be considered Shared Costs, except the Committee of Municipalities may determine that the COG should be reimbursed for the expense. No COG shall be obligated for Shared Costs and no assessment shall be made to a COG. 9. Counterpart. It is contemplated that this Agreement will be executed through the use of counterparts and such execution is authorized. In Witness whereof, the below named Municipality/COG, agrees to be a party to the Agreement for the Sharing of Litigation Expenses and the authorized municipal/COG officials have duly executed and affixed their signatures hereto. City of Elgin Name of Municipality or COG By � April 13, 2005 Signature of Official Date Ed Schock Print Name of Official Mayor Title Attest: By: ' April 13, 2005 Signature of Official Date Dolonna Mecum Print Name City Clerk Title Population: 94,487 X $0.25 per capita = $ 23.621.75 (contribution)