The URL can be used to link to this page

Home My WebLink About150-90 RESOLUTIONRESOLUTION NO. 150-90 A RESOLUTION RATIFYING AMENDMENT #2 TO THE "TOLLING AGREEMENT" BETWEEN THE CITY OF FAYETTEVILLE AND KUTAK, ROCK & CAMPBELL. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF `FAYETTEVILLE, ARKANSAS:. Section 1. That the Mayor and City Clerk are hereby authorized and directed to execute the Amendment #2 to the "Tolling Agreement" between the City of Fayetteville and Kutak, Rock & Campbell allowing for an extension of time until January 29, 1991 to file suit against Kutak, Rock & Campbell in the incinerator disengagement issue. A copy of the Amendment X12 to the "Tolling Agreement" authorized for execution hereby is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this • .r'ATTEST : ti yBY City C11erk '?47. �h !`, 4 2nd day of _October APPROVED: By: 6 _, Mayor 1990. AMENDMENT NO. 2 TO TOLLING AGREEMENT This Amendment No. 2 to Tolling Agreement is entered into as of the 28th day of September, 1990 by and among the City of Fayetteville, Arkansas ("City"), the Northwest Arkansas Resources Recovery Authority ("Authority") and Kutak Rock & Campbell ("Kutak"). 1. Pursuant to paragraph 7 of their` December 28, 1989 Tolling Agreement, as previously amended by their June 28, 1990 Amendment to Tolling Agreement (collectively, "Tolling Agreement"), City, Authority and Kutak hereby further amend the Tolling Agreement by deleting from paragraph 3(b) thereof the date "September 29,;1990," and inserting'in its place the date "January 29, 1991." 1 2. City, Authority and Kutak agree the Tolling Agree- ment remains in full force and effect in all respects and exactly as'entered into on December 28, 1989 with the sole exception of the amendment to paragraph 3(b) stated in this Amendment No.. 2 to Tolling Agreement. CITY OF FAYETTEVILLE, ARKANSAS By 0 Ato NORTHWEST ARKANSAS RESOURCE RECOVERY AUTHORITY By KUTAK ROCK & CAMPBELL By • FAYETTEVILLE THE ciSY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE TO: Fayetteville Board of Directors FROM: Scott C. Linebaugh, City Manager,01�,C DATE: September 27, 1990 SUBJECT: AMENDMENT NO. 2 TO TOLLING AGREEMENT Please find attached a copy of Amendment No. 2 to the original tolling agreement and Amendment No. 1 between the City, and the Northwest Arkansas Resource Recovery Authority entered on December 19, 1989. Amendment No. 2 will extend. the tolling agreement from September 29,1990 for a period of four (4) months to allow the City to file suit in the Incinerator Lawsuit between Kutak, Rock & Campbell. If you should have any questions, please contact me. Thank you. SCL/jwc AMENDMENT NO. 2 TO TOLLING AGREEMENT This Amendment No. 2 to Tolling Agreement is entered into as of the 28th day of September, 1990 by and among the City of Fayetteville, Arkansas ("City"), the Northwest Arkansas Resources Recovery Authority ("Authority") and Kutak Rock & Campbell ("Kutak"). 1. Pursuant to paragraph 7 of their December 28, 1989 Tolling Agreement, as previously amended by their June 28, 1990 Amendment to Tolling Agreement (collectively, "Tolling Agreement"), City, Authority and Kutak hereby further amend the Tolling Agreement by deleting from paragraph 3(b) thereof the date "September 29, 1990," and inserting in its place the date "January 29, 1991." 2. City, Authority and Kutak agree the Tolling Agree- ment remains in full force and effect in all respects and exactly as entered into on December 28, 1989 with the sole exception of the amendment to paragraph 3(b) stated in this Amendment No. 2 to Tolling Agreement. CITY OF FAYETTEVILLE, ARKANSAS By 0 74444"1/4) - NORTHWEST /" NORTHWEST ARKANSAS RESOURCE RECOVERY AUTHORITY KUTAK ROCK & CAMPBELL By rat Ayer— KUTAK ROCK & CAMPBELL A PARTNERSHIP INCLUDINO PROFESSIONAL CORPORATIONS THE OMAHA BUILDING 1630 PARNAM STREET OMAHA, NEBRASKA 68102-2186 (402) 346-6000 FACSIMILE (402) 346-1148 September 24, 1990 VIA FACSIMILE Thomas M. Ingoldsby, Esq. McDermott, Will & Emery 1850 K Street, N.W. Washington, D.C. 20006-2296 Re: City of Fayetteville, Arkansas, Incinerator Bonds ATLANTA DENVER NEW YORK WASHINGTON Dear Mr. Ingoldsby: Pursuant to our telephone conference today, our firm is willing to extend the September 29, 1989 Amendment to Tolling Agreement for an additionalfour months. A copy of an executed Amendment No. 2 to Tolling Agreement embodying that change is attached. I will forward directly to Mr. Rose tomorrow three (3) originals of the attached Amendment No. 2 to Tolling Agree- ment signed on behalf of Kutak Rock & Campbell. By a copy of this letter, I ask Mr. Rose return one of those originals to me after execution on behalf of the City and the Authority. caa-m Enclosure cc: Jerry E. Rose, Esq. (with enclosure) fec a Ct Oir- 1 lb MCDERMOTT, WILL 8c EMERY A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 1650 K STREET. N.W. 75 STATE STREET 201 SOUTH BISCAYNE BOULEVARD BOSTON, MASSACHUSETTS 02109 WASHINGTON. D.C. 20006-2296 MIAMI, FLORIDA 33131 617,345.5000 3051358.3500 2021867.8000 111 WEST MONROE STREET CHICAGO. ILLINOIS 60603 3121372-2000 2029 CENTURY PARK EAST LOS ANGELES. CALIFORNIA 90067 2131277.4110 BY FEDERAL EXPRESS FACSIMILE 2021778 • 8087 TELEX 904261MILAM WASH June 26, 1990 Jerry E. Rose, Esq. City Attorney City Administrative Building 113 West Mountain Fayetteville, Arkansas 72701 Re: 1301 DOVE STREET NEWPORT BEACH. CALIFORNIA 92660 7141851.0633 445 PARK AVENUE NEW YORK, NEW YORK 10022 2121371-7000 Northwest Arkansas Resource Recovery Authority Revenue Bonds Fixed/Adjustable Rate Series 1985 ("Bonds") Dear Jerry: Kutak, Rock & Campbell ("Kutak"), the tax counsel in the above -referenced transaction, has executed a Tolling Agreement related to its participation in the above -referenced matter. The Tolling Agreement runs on June 29, 1990. A copy of the Tolling Agreement is enclosed. Kutak has agreed to extend the Tolling Agreement to September 29, 1990. I recommend the City of Fayetteville agree to the extension. If you concur with my recommendation, I ask that you request the Mayor to execute the Amendment to the Tolling Agreement and that you present the Amendment to the Tolling Agreement to the Northwest Arkansas Resource Recovery Authority for its consideration. The Amendment to the Tolling Agreement needs to be executed by all parties by June 28, 1990. Sincerely yours, Thomas M. Ingoldsby Enclosure cc: Katherine C. Gay (w/enclosure) Steven F. Pflaum (w/enclosure) 3512n TOLLING AGREEMENT This Tolling Agreement is entered into on this 28th day of December, 1989 by and among the City of Fayetteville, Arkansas ("City"), the Northwest Arkansas Resource Recovery Authority ("Authority") and Kutak Rock & Campbell ("Kutak"). 1. City and Authority agree they will not directly or indirectly initiate, prosecute or assist in any action, suit o r proceeding against Kutak at any time prior to the Termination Date, as hereinafter defined, of this Tolling Agreement. 2. Kutak agrees that if City and Authority file and serve the attached Third -Party Complaint ("Complaint") on or before 20 days after the Termination Date of this Tolling Agreement, then Kutak shall not assert as a defense that any statute of limitations expired between December 29, 1989 and the date of the filing of the Complaint. City, Authority and Kutak intend and agree that filing of the Complaint on or before 20 days after the Termination date of this Tolling Agreement will have.the same legal effect as filing of the Complaint on December 28, 1989. 3 The Termination Date of this Tolling Agreement shall be the earlier of: (a) the day any of City, Authority o r Kutak deliver written notice, citing this paragraph 3(a), to the other two stating that the party giving notice thereby is terminating this Tolling Agreement; or (b) June 29, 1990. 4. City, Authority and Kutak agree their execution and performance of this Tolling Agreement is not intended to and does not (a) revive, extend or in any way affect any statute o f limitations which expired on or before December 28, 1989; (b) apply to any claim, right or cause of action other than those alleged in the Complaint; (c) constitute an admission of any fact or legal principle; or (d) benefit any person or entity other than City, Authority and Kutak. 5. City, Authority and Kutak each represent and agree that the person(s) signing this Tolling Agreement on their respective behalfs are fully authorized and empowered to do so. 6. This Tolling Agreement is an integrated contract that embodies the entire agreement of City, Authority and Kutak, and supercedes all prior oral and written communications, discussions, understandings and agreements. 7. This Tolling Agreement may not be modified except by a writing signed by City, Authority and Kutak citing this paragraph 7. 8. Any otherwise proper notice regarding this Tolling Agreement will be sufficient if delivered as follows: (a) Notices to City: Mayor City of Fayetteville Post Office Drawer F Fayetteville, AR 72702 (b) Notices to Authority: Chairman Northwest Arkansas Resource Recovery Authority c/o Mayor City of Fayetteville Post Office Drawer F Fayetteville, AR 72702 (c) Notices to Kutak: Presiding Partner Kutak Rock & Campbell 1650 Farnam Street Omaha, NE 68102 9. This Tolling Agreement shall be governed laws of the State of Arkansas. by the CITY OF FAYETTEVILLE, ARKANSAS By I4 ii irrzi /Z -.z9 -fl NORTHWEST ARKANSAS RECOVERY AUTHORITY By tg - a,A— 89 KUTAK ROCK pi CAMPBELL 7 SOURCE By -2- AMENDMENT TO TOLLING AGREEMENT This Amendment to Tolling Agreement is entered into as of the 28th day of June, 1990 by and among the City of Fayetteville, Arkansas ("City"), the Northwest Arkansas Resources Recovery Authority ("Authority") and Kutak Rock & Campbell ("Kutak"). 1. Pursuant to paragraph 7 of their December 28, 1989 Tolling Agreement ("Tolling Agreement"), City, Authority and Kutak hereby amend the Tolling Agreement by deleting from paragraph 3(b) thereof the date "June 29, 1990," and insert- ing in its place the date "September 29, 1990." 2. City, Authority and Kutak agree the Tolling Agree- ment remains in full force and effect in all respects and exactly as entered into on December 28, 1989 with the sole exception of the amendment to paragraph 3(b) stated in this Amendment to Tolling Agreement. CITY 0? FAYETTEVILLE ARKANSAS ZiIEAN'SAe SOURCE HORITY