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HomeMy WebLinkAbout04 - Bankruptcy RecoveryFebruary 8, 2000 CITY OF NEWPORT BEACH Agenda Item No. 4 ADMINISTRATIVE SERVICES DEPARTMENT Resource Management Division February 8, 2000 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dennis Danner, Administrative Services Director 4M SUBJECT: BANKRUPTCY RECOVERY DISCUSSION: On December 6, 1994, the County of Orange and the Orange County Investment Pools (OCIP), filed a petition under Chapter 9 of the United States Bankruptcy Code. At that time, the City had approximately $17.3 million invested in the OCIP, primarily bond proceeds from the issuance of Water Revenue Bonds in August, 1994. As part of the Settlement Agreement negotiated with the County, Pool Participants were given two options. Under Option A, pool participants released any and all "Pool- Related Claims" they had against the County and assigned to the County other Pool- Related Claims they had against third parties. In exchange they received "Recovery Notes" and "Settlement Secured Claims" from any litigation proceeds. Under Option B, Pool Participants generally reserved their rights to establish the allowability and amount of their respective Claims against the County, and the County reserved its rights and defenses with respect to such claims. In May, 1995, the City Council chose Option A. Since that time, the County has been successful in litigating a number of cases against brokers, accountants, lawyers, financial advisors, etc. Total recovery from these actions totals over $850 million (including interest). These funds will be available for distribution on February 24, 2000. Total recovery will be approximately 97+% of total funds invested in the Pools for school districts and 94+% for non school participants. In order to receive the recovery proceeds the City Council must, by resolution, designate a City representative to receive all distributions made pursuant to the Final Report Motion or order of the Bankruptcy Court. The City Council must also adopt a Settlement Agreement and Limited Release between the County of Orange, the Official Committee of investment Pool Participants, and each Option A Pool Participant. RECOMMENDATION: Adopt the attached resolution appointing the Administrative Services Director as the designated person from the City to receive all bankruptcy proceeds and adopt the attached Settlement Agreement between the County, Pool Committee, and each Option A participant. Both of these documents have been reviewed by the City Attorney's Office. RESOLUTION NO. 2000- CERTIFICATE OF ADOPTION OF AUTHORIZING RESOLUTION The undersigned is the duly appointed or elected official of the City of Newport Beach, including B of A — City of Newport Beach and Newport Beach Library (the "Option A Pool Participant "). At a duly held meeting of the City Council of the foregoing Option A Pool Participant held on February 8, 2000, the following resolutions were duly adopted. Whereas, the City of Newport Beach, including B of A — City of Newport Beach and Newport Beach Library is an Option A Pool Participant, as that term is defined in the Second Amended Plan of Adjustment ( "Plan ") for the County of Orange ( "County"); Whereas, the Representative, as that term is used in the Plan, has served a Notice of Motion and Motion of the Representative for Order Approving (1) Distribution of Net Litigation Proceeds; (2) Distribution in Respect of Assigned Excluded Claims; (3) The Representative's Fee; (4) Certain Other Actions of the Representative; and (5) The Representative's Final Report ( "Final Report Motion "); Whereas, the Pool Committee and the County have served a Notice of Motion and Joint Motion for Order Approving Compromise Regarding Additional Funds and Reclassification of Claims ( "Additional Funds Motion "), which motion describes the proposed division of certain "Additional Funds "; and Whereas, the City of Newport Beach, including B of A — City of Newport Beach and Newport Beach Library is entitled to a distribution of Net Litigation Proceeds, Additional Funds and other funds as described in the Final Report Motion and the Additional Funds Motion; 50083245VI NOW THEREFORE, BE IT RESOLVED: Dennis C. Danner is hereby designated to receive all distributions made pursuant to (i) the Final Report Motion or any order of the Bankruptcy Court relating thereto; and /or (ii) the Additional Funds Motion or any order of the Bankruptcy Court relating thereto. RESOLVED FURTHER that all distributions to which the City of Newport Beach is entitled under or pursuant to the Final Report Motion and /or the Additional Funds Motion should be delivered to Dennis C. Danner. RESOLVED FURTHER that the form of the Release and Settlement Agreement which is attached to the Additional Funds Motion be and hereby is approved, and that Dennis C. Danner be and hereby is authorized and directed to execute and deliver the Release and Settlement Agreement on behalf of the City of Newport Beach, including B of A — City of Newport Beach and Newport Beach Library. Executed this day of 2000. By: [Signature of Certifying Officer] Mayor [Title of Certifying Officer] City of Newport Beach [Name of Pool Participant] Settlement Agreement and Limited Release This Settlement Agreement and Limited Release (this "Settlement Agreement ") is made this day of January, 2000, between the County of Orange (the "County"), the chapter 9 debtor herein, the Official Committee of Investment Pool Participants (the "Pool Committee ") and each Option A Pool Participant who has executed a signature page to this Settlement Agreement. This Settlement Agreement is entered into with reference to the following: A. On December 6, 1994 (the "Petition Date "), the County filed its voluntary petition under chapter 9 of the Bankruptcy Code, 11 U.S.C. section 101, et seq. On May 16, 1996, the Bankruptcy Court confirmed the County's Modified Second Amended Plan of Adjustment (the "Plan "). Capitalized terms not defined herein are intended to have the meanings ascribed to them in the Plan. B. During the County Chapter 9 Case, several agreements were reached concerning the interests and rights of the Option A Pool Participants in and to the funds in the Orange County Investment Pool (the "Pool "). First, on May 2,1995, the Bankruptcy Court approved the Comprehensive Settlement Agreement (the "CSA "), which provided for, among other things, a distribution from the Pool of a certain portion of each Option A Pool Participants' investment balances as of the Petition Date. C. In addition, on July 18, 1995, the County, the Pool Committee and each of the Option A Pool Participants entered into the July 18, 1995 letter agreement (the "Pool Funds Release Agreement "). A copy of the Pool Funds Release Agreement is attached hereto as Exhibit B. D. On April 23, 1996, the County and the Option A Pool Participants also agreed that any funds relating to the liquidation of the pools determined later to exist would be distributed one -half to the County and one -half to the Option A Pool Participants, and such Participants, and such distribution would decrease the Option A Pool Participants' claims under the Plan accordingly. A copy of the April 23, 1996 letter agreement is attached hereto as Exhibit C. E. Approximately $10.3 million in funds is now held in County Fund 695, and approximately $4.5 million in funds is now held in County Funds 692 and 694. Together with all interest thereon as calculated and determined by this Settlement Agreement, the aggregate amount of such funds is agreed to be.$17,884,999.53 as of February 23, 2000, and is defined herein as the "Additional Funds." F. Approximately $1.8 million is now held in Fund 693, not including interest, and is defined herein as "Unapportioned Interest." G. The County believes that the Pool Funds Release Agreement controls the disposition of the Additional Funds, and that the Option A Pool Participants have released any claim they might have had to the Additional Funds. The Pool Committee contends, among other things, that the April 23, 1996 letter agreement controls the disposition of the Additional Funds, and that the Additional Funds should be divided equally between the County and the Option A Pool Participants. H. Both the County and the Option A Pool Participants agree that the distribution of the Additional Funds pursuant to this Settlement Agreement would avoid the expenditure of resources otherwise needed to litigate the issues. I. Accordingly, the County and the Pool Committee have agreed to treat the Additional Funds as if they were subject to the April 1996 letter agreement, and to treat the Unapportioned Interest in the manner consistent with applicable non - bankruptcy law, as specified herein. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the parties hereto acknowledges and agrees as follows: 1. The parties agree that the amount of Additional Funds to be distributed shall be $17,884,999.53, which includes all interest and all other claims to such funds, and shall be deemed to be the amount to be distributed, irrespective of the actual amount of interest earned on such funds; provided, however, that if distribution of the Additional Funds is not made on February 24, 2000, interest shall accrue from February 24, 2000, until paid, calculated using simple interest at 5.2% per annum to the date immediately preceding the date of distribution. 2. One -half of the Additional Funds shall be distributed to the County, free and clear of claims, liens or encumbrances. 3. One -half of the Additional Funds shall be distributed to Option A Pool Participants in respect of their Allowed Repayment Claims (Class A -19, C -1, A -20 and C -2) pursuant to the schedule attached hereto as Exhibit D. If the distribution of Additional Funds is made on February 24, 2000 as anticipated, the amounts specified in Column C of Exhibit D will be distributed in accordance therewith. If the distribution is made on a later date, then the distribution will be made based on the percentages specified in Column B of Exhibit D. In all events, the Allowed Repayment Claims of such Pool Participants shall be reduced dollar for dollar in the amount of Additional Funds and further interest after February 23, 2000, if any, distributed to each such Option A Pool Participant pursuant to this Settlement Agreement. 4. The Additional Funds distributed to the Option A Pool Participants will not be considered Litigation Proceeds as that term is defined in the Plan. Accordingly, the Representative (who has agreed to distribute the funds at the same time as Litigation Proceeds) shall not be entitled to compensation based on the distribution of Additional Funds. 5. The Unapportioned Interest plus accrued interest thereon will be distributed based upon the County's 1995 -1996 Property Tax Unapportioned Interest allocation. 6. The parties' obligations under this Settlement Agreement are contingent upon the Bankruptcy Court's approval of the motion to approve the Settlement Agreement and all relief sought therein by an order that shall have become a Final Order no later than February 24, 2000, or such later date as the County and the Pool Committee may agree in writing. 7. As a condition to receiving its distribution of Additional Funds, each of Option A Pool Participants who receives a distribution of Additional Funds shall execute this Settlement Agreement and thereby shall release any claims to the Additional Funds, which "Released Claims" are defined to include (a) any and all claims, whether secured, unsecured, priority, administrative or otherwise, demands, obligations, liabilities, indebtedness, responsibilities, disputes, breaches of contract, breaches of duty or any . relationship, acts, omissions, misfeasance, malfeasance, cause or causes of action (whether at law or in equity), debts, sums of money, accounts, compensations, contracts, controversies, promises, damages, costs, rights of offset, losses and expenses, of every type, kind, nature, description or character, known and unknown, whensoever arising occurring at any time up to and through the date hereof, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, matured or unmatured, fixed or contingent, including but not limited to principal, interest, charges, fees, minimum commissions and other obligations, rights and remedies which in any way relate to the Additional Funds, including without limitation the calculation of principal and interest thereon. Released Claims do not include any claims that do not in any way relate to the Additional Funds. 8. Each Option A Pool Participant and the Pool Committee and each of their predecessors, successors and assigns (each, a "Releasing Party"), hereby fully, finally, irrevocably, forever and unconditionally release, discharge and acquit the County and every other Option A Pool Participant who receives a portion of the Additional Funds under the Settlement Agreement of and from all Released Claims, except for the rights and obligations under this Settlement Agreement. 9. Waiver of Statutory Benefits. The parties intend that the foregoing releases shall be effective as a full and final accord and satisfaction of Released Claims, and each of the parties hereby agrees, represents and warrants that the matters released herein are not limited to matters which are known or disclosed. In this connection, each Releasing Party hereby agrees, represents and warrants that it realizes and acknowledges that (a) factual matters now existing and unknown to it may have given or may hereafter give rise to Released Claims which are presently unknown, unsuspected, unliquidated, unmatured and /or contingent, (b) such Released Claims may be unknown, unsuspected, unliquidated, unmatured and /or contingent due to ignorance, oversight, error, negligence or otherwise, and (c) if such Released Claims had been known, suspected, liquidated, matured and /or unconditional, such party's decision to enter into this release may have been materially affected. Each Releasing Party further agrees, represents and warrants that this release has been negotiated and agreed upon in view of these realizations. Nevertheless, each Releasing Party hereby intends to release, discharge, and acquit the County of and from any such unknown, unsuspected, unliquidated, unmatured and /or contingent Released Claims which are in any way set forth in or related to the matters identified hereinabove. EACH RELEASING PARTY HEREBY EXPLICITLY WAIVES ALL RIGHTS UNDER AND ANY BENEFITS OF ANY COMMON LAW OR STATUTORY RULE OR PRINCIPLE WITH RESPECT TO THE RELEASE OF SUCH CLAIMS, INCLUDING, WITHOUT LIMITATION, SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. EACH RELEASING PARTY AGREES THAT NO SUCH COMMON LAW OR STATUTORY RULE OR PRINCIPLE, INCLUDING SECTION 1542 OF THE CALIFORNIA CIVIL CODE, SHALL AFFECT THE VALIDITY OR SCOPE OR ANY OTHER ASPECT OF THIS RELEASE. 10. Further Assurances. From time to time, at the request of any party hereto and without further consideration, the other parties will execute and deliver to such requesting party such documents and take such other action as such requesting party may reasonably request in order to consummate more effectively the releases contemplated hereby. 11. No Assignment. Each Releasing Party agrees, represents, and warrants that it has not voluntarily, by operation of law or otherwise, assigned, conveyed, transferred or encumbered, either directly or indirectly, in whole or in part, any right to or interest in any of the Released Claims. 12. Choice of Law; Severability. This Settlement Agreement shall be governed by and construed in accordance with the laws of the State of California as applied to agreements among parties resident therein. Whenever possible, each provision of this Settlement Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Settlement Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Settlement Agreement. 13. Advice of Counsel. Each party has had advice of independent counsel of its own choosing in negotiations for and the preparation of this Settlement Agreement, has read this Settlement Agreement in full and final form, and has had this Settlement Agreement fully explained to it to its satisfaction. 14. No Third Party Beneficiaries. This Settlement Agreement is executed for the benefit of the parties hereto, and no other person, corporation, partnership, individual or other entity not a party to this Settlement Agreement shall have any rights herein as a third party beneficiary or otherwise, except to the extent expressly and specifically provided herein. 15. Counterparts. This Settlement Agreement may be executed in duplicates and counterparts, which, taken together, will be deemed and serve as an original. In addition, the parties agree that their authorized representatives may bind them to the terms of this Settlement Agreement with signatures exchanged by fax, and each duplicate faxed signature copy shall be deemed to be an original of this Settlement Agreement. 16. Entire Agreement. This is the entire Settlement Agreement between the parties with respect to this matter. There are no other agreements or understandings, written or oral, express or implied. IN WITNESS WHEREOF, the parties have caused this Settlement Agreement to be executed and delivered by their duly authorized representatives. Dated: January . 2000 Dated: January . 2000 PILLSBURY, MADISON & SUTRO 0 Patrick C. Shea Attorneys for Official Committee of Investment Pool Participants OFFICIAL COMMITTEE OF INVESTMENT POOL PARTICIPANTS 0 Its: Dated: January . 2000 HENNIGAN, MERCER & BENNETT John L. Amsden Reorganization Counsel for the County Dated: January. 2000 THE COUNTY OF ORANGE By: Name: Its: Agreed and Acknowledged: February . 2000 OPTION A POOL PARTICIPANT Name: Dennis C. Danner By: Its: Director of Administrative Services