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HomeMy WebLinkAboutresolution.council.104-21 RESOLUTION#104 (Series of 2021) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE COLORADO OPIOIDS SETTLEMENT MEMORANDUM OF UNDERSTANDING ("MOU") AND RELATED DOCUMENTS AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID MOU AND RELATED DOCUMENTS ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council the Colorado Opioids Settlement Memorandum of Understanding (MOU) and related documents to complete the City's participation in such settlement, true and accurate copies of which are attached hereto; and WHEREAS, the City Council believes that the City's participation in such settlement is in the best interest of the City of Aspen and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the Colorado Opioids Settlement Memorandum of Understanding (MOU) and related documents, copies of which are attached hereto, and does hereby authorize the City Manager to execute said MOU and related documents on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 261h day of October 2021. '107� Torre, Mayor I, Nicole Henning, duly appointed City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a eeting held October 26, 2021. Nicole Henning, City C erk Colorado Subdivision Escrow Agreement Governmental Entity: City of Aspen State: CO Authorized Official: Sara Ott, City Manager Address 1: 130 S. Galena Street Address 2: City, State,Zip:Aspen,CO 81611 Phone: 970-920-5083 Email: sara.ott(Rcit ofas en.com The governmental entity identified above ("Governmental Entit)")hereby provides Colorado Counties,Inc. (for counties)or the Colorado Municipal League(for municipalities)("Escrow Agent")the enclosed copies of the Governmental Entity's endorsed Subdivision Settlement Participation Forms and the Colorado Opioids Settlement Memorandum,of Understanding ("Colorado MOU"),to be held in escrow. The Subdivision Settlement Participation Forms apply respectively to(1)the National Settlement Agreement with McKesson Corporation, Cardinal Health, Inc., and AmerisourceBergen Corporation,dated July 21,2021 ("Distributor Settlement"); and (2)the National Settlement Agreement with Janssen Pharmaceuticals, Inc.,and its parent company Johnson&Johnson, dated July 21,2021 ("J&JSettlement"). Pursuant to this Agreement,the Subdivision Settlement Participation Forms and the Colorado MOU will be released only if there is 95%participation by local governments in Colorado as further explained below. Purpose of this Agrcement By endorsing a Subdivision Settlement Participation Form in the Distributor Settlement and the J&J Settlement, a governmental entity agrees to participate in those settlements and release any legal claims it has or may have against those settling pharmaceutical companies.This Colorado Subdivision Escrow Agreement is meant to ensure that the legal claims of governmental entities in Colorado will be released only when 95%participation by certain governmental entities has been reached.That 95%participation threshold is important because it signals to the settling pharmaceutical companies that the settlement has wide acceptance which will then secure significant incentive payments under these settlement agreements. Escrow The Escrow Agent shall promptly report the receipt of any Governmental Entity's endorsed Subdivision Settlement Participation Forms and Colorado MOUs to the Colorado Attorney General's Office and to the law firm of Keller Rohrback L.L.P.These documents shall be released by the Escrow Agent to the Colorado Attorney General's Office if and when the Escrow Agent is notified by the Attorney General's Office and Keller Rohrback that that the threshold 95%participation levels have been reached for both the Distributor Settlement and the J&J Settlement,as further described below. If by December 29, 2021,the Escrow Agent has not received notification that the threshold 95% levels have been reached for both the Distributor Settlement and the J&J Settlements,then the documents being escrowed shall be returned to the Governmental Entities and all copies shall be destroyed. Distributor Settlement The Attorney General's Office and Keller Rohrback shall jointly submit a written notification to the Escrow Agent when it has been determined that the percentages of populations eligible for Incentives B and C,as described in Sections IV.F.2 and IV.F.3 of the Distributor Settlement,are each 95%or more. For purposes of this Escrow Agreement,the percentages of populations eligible for Incentives B and C under the Distributor Settlement will include governmental entities that sign a Subdivision Settlement Participation Form subject to an escrow agreement and governmental entities that sign a Subdivision Settlement Participation Form that is not subject to an escrow agreement. J&J Settlement The Attorney General's Office and Keller Rohrback shall jointly submit a written notification to the Escrow Agent when it has been determined that the Participation or Case-Specific Resolution Levels for Incentives B and C,as described in Sections V.E.5 and V.E.6 of the J&J Settlement, are each 95%or more. For purposes of this Escrow Agreement,the percentages or populations eligible for Incentives B and C under the J&J Settlement will include governmental entities that sign a Subdivision Settlement Participation Form subject to an escrow agreement and governmental entities that sign a Subdivision Settlement Participation Form that is not subject to an escrow agreement. Colorado Subdivision Name: The City of Aspen zoz� Authorized Signature 4Dt I COLORADO OPIOIDS SETTLEMENT MEMORANDUM OF UNDERSTANDING ("MOU") Thursday,August 26,2021 August 25,2021 Attorney General version A. Definitions As used in this MOU: 1. "Approved Purpose(s)"shall mean forward-looking strategies, programming, and services to abate the opioid epidemic as identified by the terms of any Settlement. If a Settlement is silent on Approved Purpose(s),then Approved Purposes)shall mean those forward-looking strategies to abate the opioid epidemic identified in Exhibit A or any supplemental forward-looking abatement strategies added to Exhibit A by the Abatement Council. Consistent with the terms of any Settlement,"Approved Purposes"shall also include the reasonable administrative costs associated with overseeing and administering Opioid Funds from each of the four(4) Shares described in Section(13)(2). Reimbursement by the State or Local Governments for past expenses are not Approved Purpose(s). "Approved Purposes"shall include attorneys' fees and expenses incurred in the course of the opioid litigation that are paid through the process discussed below. 2. "County Area"shall mean a county in the State of Colorado plus the Local Governments,or portion of any Local Government,within that county. 3. "Effective Date"shall mean the date on which a court of competent jurisdiction, including any bankruptcy court, enters the first Settlement by order or consent decree. The Parties anticipate that more than one Settlement will be administered according to the terms of this MOU,but that the first entered Settlement will trigger the formation of the Abatement Council in Section(C)and the Regional Councils in Section(F)(5).t 4. "General Abatement Fund Council,"or"Abatement Council,"shall have the meaning described in Section(C),below. t For the avoidance of doubt,the McKinsey Settlement and any other Settlement that precedes the finalization of drafting this MOU are not considered a trigger for purposes of the calculation of"Effective Date." i l I I 5. "Local Government(s)"shall mean all counties in the State of Colorado and the municipalities,towns,and county and city municipal corporations that are listed in Exhibit B. 6. "National Opioid Settlement Administrative Fund"shall mean any fund identified by a Settlement for the national distribution of Opioid Funds. 7. "Opioid Funds"shall mean damage awards obtained through a Settlement. 8. "Opioid Settling Defendant"shall mean any person or entity,or its affiliates,that engages in or has engaged in the manufacture,marketing,promotion, distribution, or dispensing of licit opioids. 9. "Participating Local Government(s)"shall mean all Local Governments that sign this MOU,and if required under terms of a particular Settlement,who have executed a release of claims with the Opioid Settlement Defendant(s). For the avoidance of doubt,a Local Government must sign this MOU to become a "Participating Local Government."Local Governments may designate the appropriate individual from their entity to sign the MOU. 10. "Party"or"Parties"shall mean the State and/or Participating Local Government(s). 11. "Qualified Settlement Fund Account,"or"QSF Account,"shall mean an account set up as a qualified settlement fund,468b fund,as authorized by Treasury Regulations 1.468B-1(c) (26 CFR §1.468B-1). 12. "Regional Council"shall have the meaning described in Section(F)(5),below. 13. "Settlement"shall mean the negotiated resolution of legal or equitable claims against an Opioid Settling Defendant when that resolution has been jointly entered into by the State and the Participating Local Governments,or by any individual Party or collection of Parties that opt to subject their Settlement to this MOU. Unless otherwise directed by an order from a United States Bankruptcy Court,"Settlement"shall also include distributions from any liquidation under Chapter 7 of the United States Bankruptcy Code or confirmed plan under Chapter 11 of the United States Bankruptcy Code that treats the claims of the State and Local Governments against an Opioid Settling Defendant. 14. "The State"shall mean the State of Colorado acting through its Attorney General and the Colorado Department of Law. B. Allocation of Settlement Proceeds 1. All Opioid Funds shall be held in accordance with the terms of any Settlement. If a Settlement allows Opioid Funds to be held in a National Opioid Settlement Administrative Fund,then Opioid Funds shall be held in such National Opioid Settlement Administrative Fund. If a Settlement does not allow for Opioid Funds 2 to be held in a National Opioid Settlement Administrative Fund, Opioid Funds shall be held in a Colorado-specific QSF Account or,under the following limited circumstances, in the State's Custodial Account: 1) if at the time of a Settlement, a Colorado-specific QSF Account is not yet established, although in such case,the Opioid Funds shall be transferred to the Colorado-specific QSF Account once it is established or 2)where the Abatement Fund Council determines Opioids Funds cannot be legally held in a Colorado-specific QSF Account. Regardless of whether Opioid Funds are held in a National Administrative Fund,a Colorado- specific QSF Account,or in the State's Custodial Account,the Abatement Council shall appoint one of its members to serve as the point of contact in accordance Section(C)(4)(b)(i),below. 2. All Opioid Funds,at the time of a Settlement or at the time designated in the Settlement documents, shall be divided and distributed as follows:2 a. 10% directly to the State("State Share") for Approved Purposes in accordance with Section(D),below; b. 20% directly to Participating Local Governments("LG Share") for Approved Purposes in accordance with Section(E),below; C. 60% directly to Regions("Regional Share") for Approved Purposes in accordance with Section(F),below;and d. 10% to specific abatement infrastructure projects("Statewide Infrastructure Share") for Approved Purposes in accordance with Section (G),below. 3. Distribution of the Shares in Section B(2)(a)—(d)shall be direct,meaning that funds held in accordance with Section B(1)shall be disbursed directly to the State, Participating Local Governments, Regions, and the Statewide Infrastructure Share according to the terms of this MOU. 4. All Opioid Funds,regardless of allocation, shall be used for Approved Purposes. 5. Participating Local Governments may elect to share,pool,or collaborate with their respective allocation of the LG or Regional Shares in any manner they choose,so long as such sharing,pooling, or collaboration is used for Approved Purposes and complies with the terms of this MOU and any Settlement. C. General Abatement Fund Council 1. A General Abatement Fund Council (the"Abatement Council"), consisting of representatives appointed by the State and Participating Local Governments,shall 2 This MOU treats multi-county health departments as county health departments for purposes of allocation and distribution of abatement proceeds and therefore multi-county health departments shall not receive any Opioid Funds directly.Third-Party Payors("TPPs")are not Parties to this MOU. 3 be created to ensure the distribution of Opioid Funds complies with the terms of any Settlement and to provide oversight of the Opioid Funds in accordance with the terms of this MOU. 2. Membership:The Abatement Council shall consist of the following thirteen(13) members,who shall serve in their official capacity only. a. State Members: Seven(7)members shall be appointed by the State,as authorized volunteers of the State, as follows: W A Chair to serve as a non-voting member, except in the event of a tie; (ii) Two (2)members who are licensed professionals with significant experience in substance use disorders; (iii) Three(3)members who are professionals with significant experience in prevention, education,recovery,treatment, criminal justice,rural public health issues,or government administration related to substance use disorders; and (iv) One(1)member or family member affected directly by the opioid crisis. b. Local Government Members: Six(6)members shall be appointed by the Participating Local Governments. Local Government Members shall be a County Commissioner, Mayor, City or Town Council Member,or a professional with significant experience in prevention, education, recovery, treatment,criminal justice,rural public health issues,or governmental administration related to substance use disorders. A Participating Local Government may determine which Local Government Members are eligible(or ineligible)to serve on the General Abatement Fund Council. County Commissioners, City or Town Council Members, and/or Mayors from the Regions identified in Exhibit C shall collaborate to appoint Local Government Members as follows: (i) Two(2)Members from Regions 1, 5, 13, 14, 15, 17, 18; (ii) Two (2) Members from Regions 2, 6, 7, 8, 9, 10, 11, 12, 16;and (iii) Two(2)Members from Regions 3,4, 19. C. Terms:The Abatement Council shall be established within ninety(90) days of the Effective Date. In order to do so, within sixty(60)days of the Effective Date,the State shall appoint the State Members in accordance with Section(C)(2)(a), and after conferral with the Local Governments, CCI and CML shall jointly appoint six(6) Local Government Members for an initial term not to exceed one year.Thereafter,Members shall be 4 appointed in accordance with this Section and Sections(C)(2)(a)and (b) and may serve no more than two (2)consecutive two-year terms, for a total of four(4) consecutive years. Except that,beginning in the second year only,two(2)State Members and two(2) Local Government members shall be appointed for a three-year term and may serve one consecutive two-year term thereafter. The Chair shall have no term but may be replaced at the State's discretion. (i) If a State or Local Government Member resigns or is otherwise removed from the Abatement Council prior to the expiration of their term, a replacement Member shall be appointed within sixty (60)days in accordance with Sections(C)(2)(a)and (b). (ii) If a Local Government Member vacancy exists for more than sixty (60)days,the State shall appoint a replacement Local Government Member to serve until the vacancy is filled in accordance with Section(C)(2)(b). 3. Duties: The Abatement Council is primarily responsible for ensuring that the distribution of Opioid Funds complies with the terms of this MOU.The Abatement Council is also responsible for oversight of Opioid Funds from the Regional Share in accordance with Section(F), below,and for developing processes and procedures for the distribution and oversight of Opioid Funds from the Statewide Infrastructure Share in accordance with Section (G)below. 4. Governance:The Abatement Council shall draft its own bylaws or other governing documents, which must include appropriate conflict of interest and dispute resolution provisions, in accordance with the terms of this MOU and the following principles: a. Authority: The Abatement Council does not have rulemaking authority. The terms of this MOU and any Settlement,as entered by any court of competent jurisdiction, including any bankruptcy court,control the authority of the Abatement Council and the Abatement Council shall not stray outside the bounds of the authority and power vested by this MOU and any Settlement. b. Administration: The Abatement Council shall be responsible for an accounting of all Opioid Funds.The Abatement Council shall be responsible for releasing Opioid Funds in accordance with Section(13)(1) for the Regional and Statewide Infrastructure Shares in Sections(13)(2)(c) and(d) and shall develop policies and procedures for the release and oversight of such funds in accordance with Sections (F) and(G). Should the Abatement Council require assistance with providing an accounting of Opioid Funds, it may seek assistance from the State. 5 (i) The Abatement Council shall appoint one of its members to serve as a point of contact for the purpose of communicating with the entity holding Opioid Funds in accordance with Section (13)(1) and in that role shall only act as directed by the Abatement Council. C. Transparency: The Abatement Council shall operate with all reasonable transparency and operate in a manner consistent with all Colorado laws relating to open records and meetings regardless of whether the Abatement Council is otherwise obligated to comply with them. (i) The Abatement Council shall develop a centralized public dashboard or other repository for the publication of expenditure data from any Party or Regional Council that receives Opioid Funds in accordance with Sections (D)_(G). The Abatement Council may also require outcome related data from any Party or Regional Council that receives Opioid Funds in accordance with Sections(D)-(G)and may publish such outcome related data in the centralized public dashboard or other repository described above. In determining which outcome related data may be required, the Abatement Council shall work with all Parties and Regional Councils to identify appropriate data sets and develop reasonable procedures for collecting such data sets so that the administrative burden does not outweigh the benefit of producing such outcome related data. (iii) For purposes of funding the centralized public dashboard or other repository described above, the Abatement Council shall make good faith efforts to seek funding from outside sources first, otherwise the State shall provide such funding. d• Collaboration: The Abatement Council shall facilitate collaboration ! between the State, Participating Local Governments, Regional Councils, and other stakeholders for the purposes of sharing data,outcomes, strategies, and other relevant information related to abating the opioid crisis in Colorado. i g C. Decision Making: The Abatement Council shall seek to make all decisions by consensus. In the event consensus cannot be achieved,unless otherwise required in this MOU,the Abatement Council shall make decisions by a majority vote of its Members. The Chair shall only vote in the event of a tie. f. Due Process:The Abatement Council shall develop the due process t procedures required by Section(G)(3)(d) for Parties to dispute or challenge remedial actions taken by the Abatement Council for Opioid Funds from the Statewide Infrastructure Share. The Abatement Council 6 d i s shall also abide by the due process principles required by Section(F)(12)- (13) for Regions to dispute or challenge remedial actions taken by the Abatement Council for Opioid Funds from the Regional Share. g. Legal Status: The Abatement Council shall not constitute a separate legal entity. h. Legal Representation: To the extent permitted by law,the State shall provide legal counsel to State Members for all legal issues arising from those State Members' work on the Abatement Council. At all times, Local Government Members of the Abatement Council are entitled to receive legal representation from their respective governmental entities. In the event of a conflict,the Abatement Council and its members may retain the services of other legal counsel. i. Compensation: No member of the Abatement Council shall be compensated for their work related to the Abatement Council. D. State Share 1. In accordance with Sections(13)(1)and (13)(2)(a), and the terms of any Settlement, the State Share shall be paid directly to the State in accordance with the terms of this Section(D). 2. The State maintains full discretion over distribution of the State Share anywhere within the State of Colorado,however,the State Share shall be used for Approved Purposes only. The State will work to reduce administrative costs as much as practicable. 3. On an annual basis, as determined by the Abatement Council, the State shall provide all expenditure data, including administrative costs, from the State Share to the Abatement Council for purposes of maintaining transparency in accordance with Section(C)(4)(c)(i).The Abatement Council may require the State to provide additional outcome-related data in accordance with Section(C)(4)(c)(ii) and the State shall comply with such requirements. 4. If the State disputes the amount of Opioid Funds it receives from the State Share, the State shall alert the Abatement Council within sixty(60)days of discovering the information underlying the dispute. Failure to alert the Abatement Council within this time frame shall not constitute a waiver of the State's right to seek recoupment of any deficiency in its State Share. E. LG Share 1. In accordance with Sections (13)(1)and(13)(2)(b), and the terms of any Settlement,the LG Share shall be paid directly to Participating Local Governments in accordance with the terms of this Section(E). 7 2. Allocations to Participating Local Governments from the LG Share shall first be determined using the percentages shown in Exhibit D. 3. The LG Share for each County Area shall then be allocated among the county and the other Participating Local Governments within it. Exhibit E reflects the default allocation that will apply unless the Participating Local Governments within a County Area enter into a written agreement providing for a different allocation. The Participating Local Governments may elect to modify the allocation for a County Area in Exhibit E, but such modification to the allocation in Exhibit E shall not change a County Area's total allocation under Section(E)(2). 4. A Local Government that chooses not to become a Participating Local Government will not receive a direct allocation from the LG Share.The portion of the LG Share that would have been allocated to a Local Government that is not a Participating Local Government will instead be re-allocated to the Regional Share for the Region where the Local Government is located, in accordance with Section(F), below. 5. In the event a Participating Local Government dissolves or ceases to exist during the term of any Settlement,the allocation for that Participating Local Government from the LG Share shall be re-allocated as directed by any Settlement, and if not specified,be re-allocated to the Regional Share for the Region in which the Participating Local Government was located, in accordance with Section(F). If a Participating Local Government merges with another Participating Local Government, the allocation for that Participating Local Government from the LG Share shall be re-allocated as directed by any Settlement, and if not specified, shall be re-allocated to the successor Participating Local Government's allocation of the LG Share. If a Participating Local Government merges with a Local Government that is not a Participating Local Government, the allocation for that Participating Local Government from the LG Share shall be re-allocated as directed by any Settlement, and if not specified,be re-allocated to the Region in which the merging Participating Local Government was located, in accordance with Section(F),below. 6. A Participating Local Government may forego its allocation of the LG Share and direct its allocation to the Regional Share for the Region where the Participating Local Government is located, in accordance with Section(F)below,by affirmatively notifying the Abatement Council on an annual basis of its decision to forego its allocation of the LG Share. A Participating Local Government's election to forego its allocation of the LG Share shall carry over to the following year unless the Participating Local Government notifies the Abatement Council otherwise. If a Participating Local Government elects to forego its allocation of the LG Share,the Participating Local Government shall be excused from the reporting requirements required by Section(E)(8). 7. Participating Local Governments maintain full discretion over the distribution of their allocation of the LG Share anywhere within the State of Colorado, however, 8 I all Participating Local Governments shall use their allocation from the LG Share for Approved Purposes only. Reasonable administrative costs for a Participating Local Government to administer its allocation of the LG Share shall not exceed actual costs or 10%of the Participating Local Government's allocation of the LG Share, whichever is less. g. On an annual basis, as determined by the Abatement Council,all Participating Local Governments shall provide all expenditure data, including administrative costs, from their allocation of the LG Share to the Abatement Council for purposes of maintaining transparency in accordance with Section(C)(4)(c)(i). The Abatement Council may require Participating Local Governments to provide additional outcome related data in accordance with Section(C)(4)(c)(ii)and all Participating Local Governments shall comply with such requirements. 9. If any Participating Local Government disputes the amount of Opioid Funds it receives from its allocation of the LG Share,the Participating Local Government shall alert the Abatement Council within sixty(60)days of discovering the information underlying the dispute. Failure to alert the Abatement Council within this time frame shall not constitute a waiver of the Participating Local Government's right to seek recoupment of any deficiency in its LG Share. F. Regional Share 1. In accordance with Sections (13)(1) and(13)(2)(c), and the terms of any Settlement, the Regional Share shall be paid to the Regions in accordance with the terms of this Section(F). 2. Participating Local Governments shall organize themselves into the Regions depicted in Exhibit C.Municipalities located in multiple Regions may join all or some of the Regions in which they are located according to Exhibit C. 3. Allocations to Regions will be distributed according to Exhibit F. For multi- county Regions, each Region's share listed in Exhibit F is calculated by summing the individual percentage shares listed in Exhibit D for the counties within that Region.The percentages in Exhibit F are based on the assumption that every Local Government in each Region becomes a Participating Local Government. 4. In the event a city, town,or other municipality that is a Participating Local Government merges,dissolves, or ceases to exist during the term of any Settlement, the allocation of the Regional Share owed to the Region in which that i Participating Local Government existed shall be re-allocated as directed by any Settlement, and if not specified,shall not be modified from Exhibit F. If county j that is a Participating Local Government merges with another county within its Region, the allocation of the Regional Share owed to the Region in which that county existed shall be re-allocated as directed by any Settlement, and if not specified,shall not be modified from Exhibit F. If county that is a Participating Local Government merges with a county in a different Region during the term of 4 9 d t g t t any Settlement,the allocation of the Regional Share owed to the Region in which that county existed shall be re-allocated as directed by any Settlement, and if not specified,shall be re-allocated to the Region in which that Participating Local Government merged in accordance with Exhibit F. 5. Each Region must create its own Regional Council while giving consideration to the regional governance models illustrated in Exhibit G.The Regional Council must be formed by the Participating Local Governments within the Region and each Regional Council shall designate a fiscal agent for the Region. Regional fiscal agents shall be county or municipal governments only.All funds from the Regional Share shall be distributed to the Regional Council's identified fiscal agent for the benefit of the entire Region. a. Subject to this Section F(5), each Region may draft its own intra-regional agreements,bylaws,or other governing documents to determine how the Regional Council will operate. However,each voting member of a Regional Council shall be an employee or elected official of a Participating Local Government within the applicable Region. In the case of Denver,the voting members of its Regional Council shall be appointed by the Mayor. In the case of Broomfield,the voting members of its Regional Council shall be appointed by the Broomfield City and County Manager. b. The Region shall not receive any Opioid Funds from the Regional Share until the Region certifies to the Abatement Council that its Regional Council has been formed and a fiscal agent has been designated. Such certification shall be in a simple form adopted by the Region and may be made via email,so long as it includes the names and affiliations of the Regional Council's members and the designated fiscal agent. C. If a Region does not form and certify its Regional Council and designate its fiscal agent within one-hundred and eighty(180) days of the Effective Date, the Abatement Council shall appoint members to the Region's Regional Council. Regional Council members appointed by the Abatement Council shall serve until the Region certifies the formation of its Regional Council to the Abatement Council. d. A Region shall submit a renewed certification required by Section (17)(5)(b), above,when its membership changes. e. If a membership vacancy exists on a Regional Council for more than ninety(90)days and the Regional Council is unable to fill the vacancy by . its regular procedures during that time,the Abatement Council shall appoint a replacement member to serve until the Region fills the vacancy. 10 6. A Local Government that chooses not to become a Participating Local Government shall not receive any Opioid Funds from the Regional Share or participate in the Regional Councils described in Section(F)(5)above. 7. Each Regional Council shall make requests to the Abatement Council for Opioid Funds from their allocation of the Regional Share. Each Regional Council's request for Opioid Funds from the Regional Share shall be accompanied by a 2- year plan identifying the Approved Purposes for which the requested funds will be used by the Region anywhere within the State of Colorado.A Regional Council's 2-year plan may be amended so long as such amendments comply with the terms of this MOU and any Settlement. Any Regional Council may seek assistance from the Abatement Council for purposes of developing its 2-year plan. 8. Reasonable administrative costs for a Regional Council to administer its Region's allocation of the Regional Share shall not exceed actual costs or 10% of the Region's allocation of the Regional Share,whichever is less. 9. The Abatement Council shall release funds requested by a Regional Council in accordance with Section(13)(1) if the Regional Council's 2-year plan complies with the Approved Purposes,the terms of this MOU, and the terms of any Settlement.The Abatement Council shall not deny any funding request from a Regional Council on the basis that the Abatement Council does not approve or agree with the Approved Purposes for which a Regional Council requests Opioid Funds from the Regional Share. Nor may the Abatement Council hold up,delay, or make unreasonable requests for additional or supporting information of the Regional Council prior to releasing the requested Opioid Funds. The purpose of this MOU is to facilitate Opioid Funds to their intended recipients quickly and efficiently with minimal administrative procedure. 10. On an annual basis,as determined by the Abatement Council, each Regional Council's fiscal agent shall provide to the Abatement Council the Regional Council's expenditure data, including administrative costs, from their allocation of the Regional Share and certify to the Abatement Council that the Regional Council's expenditures were for Approved Purposes and complied with its 2-year plan.The Regional Council shall subject itself to an accounting at the Abatement Council's discretion. a. The Abatement Council shall review a Regional Council's expenditure data and certification to ensure compliance with the Regional Council's 2- year plan,the Approved Purposes, and the terms of this MOU and any Settlement. b. The Abatement Council shall publish the Regional Council's expenditure data,including administrative costs, from the Regional Share in accordance with Section(C)(4)(c)(i). The Abatement Council may require Regional Councils to provide additional outcome related data in 11 accordance with Section(C)(4)(c)(ii)and all Regional Councils shall comply with such requirements. 11. If any Regional Council disputes the amount of Opioid Funds it receives from its allocation of the Regional Share,the Regional Council shall alert the Abatement Council within sixty(60)days of discovering the information underlying the dispute. Failure to alert the Abatement Council within this time frame shall not constitute a waiver of the Regional Council's right to seek recoupment of any deficiency in its Regional Share. 12. If the Abatement Council has reason to believe a Region's expenditure of its allocation of the Regional Share did not comply with the Region's 2-year Plan, the Approved Purposes, the terms of this MOU or any Settlement, as described in this Section(F),or that the Region otherwise misused its allocation of the Regional Share, the Abatement Council may take remedial action against the alleged offending Region. Such remedial action is left to the'discretion of the Abatement Council and may include but not be limited to, withholding future Opioids Funds owed to the offending Region or requiring the offending Region to reimburse improperly expended Opioid Funds to the Regional Share. 13. Within one hundred and twenty(120)days of the Abatement Council being formed, in accordance with Section(C)(2)(c) above, the Abatement Council shall develop and publish due process procedures for allowing a Region to challenge or dispute any remedial action taken by the Abatement Council, including timelines during which the Region may engage in such a challenge or dispute. Such due process procedures shall reflect, at a minimum, the following principles: a. Upon learning of any conduct that may warrant remedial action against a Region,the Abatement Council shall first provide notice to the Region of the conduct at issue,provide the Region an opportunity to respond, and, if appropriate, cure the alleged offending conduct. If after providing the Region such notice and opportunities to respond and cure, the Abatement Council continues to believe remedial action is warranted,the Abatement Council may take such remedial action. b. If the Abatement Council decides to take remedial action against an alleged offending Region,such action may only occur by a two-thirds supermajority vote of the Abatement Council. Thus, an Abatement Council made up of twelve(12)voting members requires a vote of eight (8)Members prior to taking remedial action against an alleged offending Region. C. Prior to taking any remedial action against an alleged offending Region, the Abatement Council shall first provide notice to the alleged offending Region of the remedial action to be taken and the facts underlying such remedial action. The Abatement Council shall then provide the alleged 12 offending Region an opportunity to challenge or dispute the remedial action in accordance with,at a minimum,the principles below: i. The alleged offending Region may request revisions or modifications to the proposed remedial action; ii. The alleged offending Region may submit a written response to and/or request a hearing before the Abatement Council,or a third- party hearing officer,3 regarding the alleged offending conduct and proposed remedial action;and iii. After such written responses are submitted and reviewed and/or a hearing is conducted,the alleged offending Region may submit an appeal to the Abatement Council of the decision to take remedial action. d. Remedial actiotis taken by the Abatement Council,in accordance with the due process principles detailed above,shall be considered final non- appealable orders and offending Regions may not seek judicial relief from remedial action taken by the Abatement Council, except as provided in Section(H),below. e. Subject to Section(H)(2),below,if any Party(ies)believes the Abatement Council violated the terms of this MOU,such Party(ies) may seek to enforce the terms of this MOU. 14. If the Abatement Council has reason to believe a Region's conduct,or the conduct of any Participating Local Government or individual in that Region,amounts to a violation of any criminal law, the Abatement Council shall refer such matters to the appropriate authorities and may consider such conduct in its determination of any remedial action to be taken. 15. If the Abatement Council has reason to believe that an individual involved in the receipt or administration of Opioid Funds from the Regional Share has violated any applicable ethics rules or codes,the Abatement Council shall not attempt to adjudicate such a violation. In such instances,the Abatement Council shall lodge a complaint with the appropriate forum for handling such ethical matters,such as a local home rule municipality's ethics board. 16. Costs associated with the Abatement Council's distribution and oversight of the Regional Share, as described above in this Section(F), including costs associated with any remedial action by the Abatement Council,shall be paid from the Statewide 3 Only an alleged offending Region may request the appointment of a third-party hearing officer to review any written responses and conduct any requested hearings. If an alleged offending Region makes such a request,the Abatement Council has sole discretion to appoint the third-party hearing officer and the alleged offending Region shall bear the cost of such review and/or hearing by the third-party hearing officer. 13 Infrastructure Share. The Abatement Council shall make all good faith efforts to limit such costs to the greatest extent possible. G. Statewide Infrastructure Share 1. In accordance with Sections B(1)and (13)(2)(d), and the terms of any Settlement, the Statewide Infrastructure Share shall be paid to any Party or Regional Council in accordance with this Section(G). 2. The purpose of the Statewide Infrastructure Share is to promote capital improvements and provide operational assistance for developing or improving the infrastructure necessary to abate the opioid crisis anywhere within the State of Colorado.The Statewide Infrastructure Share is intended to supplement Opioid Funds received by any Party or Region. 3. Prior to distributing any Opioid Funds from the Statewide Infrastructure Share, the Abatement Council shall establish and publish policies and procedures for the distribution and oversight of the Statewide Infrastructure Share, including processes for Parties or Regions to apply for Opioid Funds from the Statewide Infrastructure Share.The Abatement Council's policies and procedures shall, at a minimum, reflect the following principles: a. Opioid Funds from the Statewide Infrastructure Share shall be used for Approved Purposes only; b. Opioid Funds from the Statewide Infrastructure Share shall be paid directly to the appropriate state agencies(including but not limited to the Colorado Department of Law),Regional fiscal agents, or Participating Local Governments only; C. Distribution and oversight of the Statewide Infrastructure Share shall comply with the terms of this MOU and any Settlement; d. Appropriate processes for remedial action will be taken against Parties or Regions that misuse Opioid Funds from the Statewide Infrastructure Share. Such processes shall include procedures for alleged offending Parties or Regions to challenge or dispute such remedial action; and e. Limitations on administrative costs to be expended by recipients for administering Opioid Funds received from the Statewide Infrastructure Fund,not to exceed actual costs expended by the recipient or 10%of the amount received,whichever is less. 4. The distribution and oversight policies and procedures developed by the Abatement Council,in accordance with Section(G)(3),shall be non-appealable orders and no Party or Region may seek judicial relief related to the distribution and oversight of the Statewide Infrastructure Share. 14 5. On an annual basis,as determined by the Abatement Council, any Party or Regional Council that receives funds from the Statewide Infrastructure Share shall provide all expenditure data, including administrative costs, related to any Opioid Funds it received from the Statewide Infrastructure Share and subject itself to an accounting as required by the Abatement Council.The Abatement Council shall publish all expenditure data from the Statewide Infrastructure Share in accordance with Section (C)(4)(c)(i). The Abatement Council may require the Parties or Regional Councils that receive funds from the Statewide Infrastructure Share to provide additional outcome related data in accordance with Section(C)(4)(c)(ii) and the Parties or Regional Councils shall comply with such requirements. 6. Costs associated with the Abatement Council's distribution and oversight of the Statewide Infrastructure Share,as described in this Section (G), shall be paid for from the Statewide Infrastructure Share. The Abatement Council shall make all good faith efforts to limit such costs to the greatest extent possible. H. General Terms 1. All Parties and Regional Councils shall maintain all records related to the receipt and expenditure of Opioid Funds for no less than five(5)years and shall make such records available for review by the Abatement Council,any other Party or Regional Council,or the public. Records requested by the public shall be produced in accordance with Colorado's open records laws. Records requested by the Abatement Council or another Party or a Regional Council shall be produced within twenty-one(21)days of the date the record request was received.This requirement does not supplant any Party or Regional Council's obligations under Colorado's open records laws. 2. If any Party(ies)believes the Abatement Council has violated the terms of this MOU, the alleging Party(ies) may seek to enforce the terms of this MOU, provided the alleging Party(ies) first provides notice to the Abatement Council of the alleged violation and a reasonable opportunity to cure the alleged violation. In such an enforcement action,the alleging Party(ies)may only seek to enforce the terms of the MOU against the State and the Participating Local Governments from which the Local Government Members of the Abatement Council were appointed and may only seek declaratory and/or injunctive relief. In defense of such an enforcement action, the State's Members of the Abatement Council shall be represented by the State and the Local Government Members shall be represented by the Participating Local Governments from which the Local Government Members were appointed. In the event of a conflict,the Abatement Council and its Members may seek outside representation to defend itself against such an enforcement action. 3. If any Party(ies)believes another Party(ies),not including the Abatement Council, violated the terms of this MOU,the alleging Party(ies)may seek to enforce the terms of this MOU in the court in which any applicable Settlement(s)was entered, provided the alleging Party(ies)first provide the alleged offending Party(ies) 15 notice of the alleged violation(s)and a reasonable opportunity to cure the alleged violation(s). In such an enforcement action, any alleging Party or alleged offending Party(ies)may be represented by their respective public entity in accordance with Colorado law. 4. Nothing in this MOU shall be interpreted to waive the right of any Party to seek judicial relief for conduct occurring outside the scope of this MOU that violates any Colorado law. In such an action,the alleged offending Party(ies), including the Abatement Council,may be represented by their respective public entities in accordance with Colorado law. In the event of a conflict, any Party, including the Abatement Council and its Members,may seek outside representation to defend itself against such an action. 5. If any Party(ies)believes another Party(ies), Region(s),or individual(s)involved in the receipt, distribution,or administration of Opioids Funds has violated any applicable ethics codes or rules, a complaint shall be lodged with the appropriate forum for handling such matters,such as a local home rule municipality's ethics board. 6. If any Party(ies)believes another Party(ies), Region(s),or individual(s)involved in the receipt,distribution,or administration of Opioid Funds violated any Colorado criminal law,such conduct shall be reported to the appropriate criminal authorities. 7. Venue for any legal action related to this MOU shall be in a court of competent jurisdiction where any applicable Settlement(s)is entered. 8. Because recovery under the terns of different Settlement(s)may vary depending on the number of Parties required to effectuate a Settlement,the Parties may conditionally agree to sign on to the MOU through a letter of intent,resolution or similar written statement,declaration or pronouncement declaring their intent to sign on to the MOU if the threshold for Party participation in a specific Settlement is achieved.' 9. This MOU may be executed in two or more counterparts,each of which shall be deemed an original,but all of which shall constitute one and the same instrument. The Parties approve the use of electronic signatures for execution of this MOU. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. §§ 24-71.3-101,e!seq. The Parties agree not to deny the legal effect or enforceability of the MOU solely because it is in electronic form or ' For instance,the July 21,2021 "Distributor Settlement Agreement"includes a"Subdivision Settlement Agreement Form"that,once filled out and executed,is meant to indicate that Local Government's(or Subdivision's)election to participate in that Distributor Settlement and also,to require that Local Government to take steps to formally release any claim it may have against the Settling Distributors. With regard to the ; Distributor Settlement Agreement or any other Settlements that include a form similar to the Subdivision i Settlement Agreement Form,the Parties may still conditionally agree to sign on to the MOU if,for instance,the s threshold for Party participation in a specific Settlement is achieved. i 16 l because an electronic record was used in its formation.The Parties agree not to object to the admissibility of the MOU in the form of an electronic record,or a paper copy of an electronic document,or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. 10. Each party represents that all procedures necessary to authorize such Party's execution of this MOU have been performed and that the person signing for such Party has been authorized to execute the MOU. I. Payment of Counsel and Litigation Expenses.Through a Back-Stop Fund 1. Some Settlements, including the McKesson Corporation, Cardinal Health, Inc., and AmerisourceBergen Corporation("Distributor")and Johnson& Johnson/Janssen("J&J") settlements,may provide for the payment of all or a portion of the fees and litigation expenses owed by Participating Local Governments to counsel specifically retained to file suit in the opioid litigation. If any Settlement is insufficient to cover the fee obligations of the Participating Local Governments (as discussed and modified by Judge Polster's Order of August 6 regarding fees for the Distributor and J&J settlements),the deficiencies will be covered as set forth in further detail below. 2. The Parties also recognize that,as in the Distributor and J&J settlements, certain Opioid Settling Defendants may offer premiums benefiting the entire state of Colorado when Participating Local Governments agree to the Settlement(s), thereby settling their claims in their on-going lawsuits. For example,below is the chart illustrating how Incentive Payment B (a 25% premium to the entire state) works in the Distributor Settlement at Section IV.F.2.b (p. 20): Percentage of litigating Subdivision Population that is incentive B Eligible Subdivision Incentive Payment B Population. Eligibility Percentage Up to 85% 0% 8i 30% 91+ 50'), 95+ 00% 1 00°0 { z 3. If the court in In Re:National Prescription Opiate Litigation, MDL No.2804 (N.D. Ohio),or if a Settlement establishes a common benefit fund or similar device to compensate attorneys for services rendered and expenses incurred that have benefited plaintiffs generally in the litigation(the"Common Benefit Fund"), 17 i and/or requires certain governmental plaintiffs to pay a share of their recoveries from defendants into the Common Benefit Fund("Court-Ordered Common Benefit Fund Assessment"),then the Participating Local Governments shall be required to first seek to have their attorneys' fees and expenses paid through the Common Benefit Fund. 4. For the Distributor and J&J settlements only,counsel for Participating Local Governments shall have their expenses otherwise recoverable from Colorado Participating Local Governments compensated only through the Common Benefit Fund(s)established in those settlement(s). For the avoidance of doubt,counsel for Participating Local Governments may recover their attorneys' fees through the Distributor and J&J settlements and through the other applicable provisions of this Section(I). 5. In addition,as a means of covering any deficiencies in paying counsel for Participating Local Governments, a supplemental Colorado Attorney Fee Back- Stop Fund shall be established.The Colorado Attorney Fee Back-Stop Fund is to be used to compensate counsel for Participating Local Governments that filed an initial complaint in the opioid litigation by September 1,2020 ("Litigating Participating Local Governments"). 6. Payments out of the Colorado Attorney Fee Back-Stop Fund shall be determined by a committee(the"Opioid Fee and Expense Committee").The Opioid Fee and Expense Committee shall consist of the following five(5)members: a. One(1)member appointed by CCI from a litigating county or from a litigating county and city municipal corporation; b. One(1)member appointed by CML from a litigating city; C. One(1) member appointed jointly by CCI and CML from a non-litigating county or city; d. One(1) member appointed by the Attorney General's Office; and e. One(1) neutral member jointly appointed by all of the other members listed above. 7. The Colorado Attorney Fee Back-Stop Fund shall be funded as follows from any Settlement, excluding settlements involving McKinsey and payments resulting from the Purdue or Mallinckrodt bankruptcy. For purposes only of calculating the funding of the Colorado Attorney Fee Back-Stop Fund, the Parties deem 58%of the total LG Share and Regional Share to be attributable to the Litigating Local Governments.The Colorado Attorney Fee Back-Stop Fund shall be funded by 8.7%of the total LG Share and 4.35%of the total Regional Share at the time such funds are actually received.No funds deposited into the Colorado Attorney Fee Back-Stop Fund will be taken from the Statewide Infrastructure Share or State Share. 18 s 7 A S� S 8. Counsel for Litigating Participating Local Governments may apply to the Colorado Attorney Fee Back-Stop Fund only after applying to the Common Benefit Fund. 9. Counsel for Litigating Participating Local Governments may apply to the Colorado Attorney Fee Back-Stop Fund for only a shortfall—that is, the difference between what their fee agreements would entitle them to (as limited by this Section(I))minus what they have already collected from the Common Benefit Fund (including both the"common benefit"and "contingency fee" calculations, if any). If they receive fees/costs for common benefit work in the national fee fund,these fees/costs will be allocated proportionately across all their local government opioid clients based on the allocation model used in the Negotiation Class website to allocate the appropriate portion to Colorado clients. 10. Counsel for Litigating Participating Local Governments are limited to being paid, at most, and assuming adequate funds are available in any Common Benefit Fund and Colorado Attorney Fee Back-Stop Fund, fees in an amount equal to 15%of the LG Share and 7.5%of the Regional Share attributable to their Colorado clients. 11. Any funds remaining in the Colorado Attorney Fee Back-Stop Fund in excess of the amounts needed to cover the fees and litigation expenses owed by Litigating Participating Local Governments to their respective counsel shall revert to the Participating Local Governments according to the allocations described in Sections (E) and (F). Every two years, the Opioid Fee and Expense Committee shall assess the amount remaining in the Colorado Attorney Fee Back-Stop Fund to determine if it is overfunded. 12. Despite the fact that a litigating entity bonus benefits the entire state,no portion of the State Share shall be used to fund the Colorado Attorney Fee Back-Stop Fund or in any other way to fund any Participating Local Government's attorneys' fees and expenses. Because the state did not hire outside counsel,any funds for attorneys fees that the state receives from the J&J and Distributor settlement will be deposited into the State Share. 13. To participate in the Colorado Attorney Fee Back-Stop Fund,counsel must follow the requirements of C.R.S. § 13-17-304. i i f 19 y i This Colorado Oplolds Settlement Memorandum of Understanding is signed this ccG day of AIUgOI;� ,�p�by; Colorado ney General Philip J. Weiser ff 20 i 6 t Y ff Y This Colorado Opioids Settlement Memorandum of Understanding is signed this 5th day of November,2021 by: Name & Title:Diane Foster, Assistant City Manager On behalf of the City of Aspen I� i i 21 EXHIBIT K Settlement Participation Form Governmental Entity: City of Aspen State: Colorado Authorized Official: Sara Ott,City Manager Address 1: 130 S. Galena Street Address 2: City, State Zip: Aspen, CO 81611 Phone: 970-920-5083 Email:sara.ott c cit ofas en.com The governmental entity identified above("Governmental Entity"), in order to obtain and in consideration for the benefits provided to the Governmental Entity pursuant to the Settlement Agreement dated July 21, 2021 ("Janssen Settlement"),and acting through the undersigned authorized official, hereby elects to participate in the Janssen Settlement,release all Released Claims against all Released Entities,and agrees as follows. 1. The Governmental Entity is aware of and has reviewed the Janssen Settlement, understands that all terms in this Election and Release have the meanings defined therein, and agrees that by this Election,the Governmental Entity elects to participate in the Janssen Settlement and become a Participating Subdivision as provided therein. 2. The Governmental Entity shall,within 14 days of the Reference Date and prior to the filing of the Consent Judgment, dismiss with prejudice any Released Claims that it has filed. 3. The Governmental Entity agrees to the terms of the Janssen Settlement pertaining to Subdivisions as defined therein. 4. By agreeing to the terms of the Janssen Settlement and becoming a Releasor,the Governmental Entity is entitled to the benefits provided therein, including, if applicable, monetary payments beginning after the Effective Date. 5. The Governmental Entity agrees to use any monies it receives through the Janssen Settlement solely for the purposes provided therein. 6. The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity's state where the Consent Judgment is filed for purposes limited to that court's role as provided in,and for resolving disputes to the extent provided in,the Janssen Settlement. 7. The Governmental Entity has the right to enforce the Janssen Settlement as provided therein. 86 revised July 30, 2021 8. The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for all purposes in the Janssen Settlement, including but not limited to all provisions of Section IV (Release), and along with all departments,agencies, divisions, boards, commissions,districts, instrumentalities of any kind and attorneys, and any person in their official capacity elected or appointed to serve any of the foregoing and any agency, person,or other entity claiming by or through any of the foregoing, and any other entity identified in the definition of Releasor, provides for a release to the fullest extent of its authority.As a Releasor, the Governmental Entity hereby absolutely, unconditionally, and irrevocably covenants not to bring, file,or claim,or to cause,assist or permit to be brought, filed,or claimed,or to otherwise seek to establish liability for any Released Claims against any Released Entity in any forum whatsoever.The releases provided for in the Janssen Settlement are intended by the Parties to be broad and shall be interpreted so as to give the Released Entities the broadest possible bar against any liability relating in any way to Released Claims and extend to the full extent of the power of the Governmental Entity to release claims.The Janssen Settlement shall be a complete bar to any Released Claim. 9. In connection with the releases provided for in the Janssen Settlement,each Governmental Entity expressly waives,releases,and forever discharges any and all provisions, rights,and benefits conferred by any law of any state or territory of the United States or other jurisdiction,or principle of common law,which is similar, comparable, or equivalent to § 1542 of the California Civil Code,which reads: General Release; extent. A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. A Releasor may hereafter discover facts other than or different from those which it knows, believes, or assumes to be true with respect to the Released Claims, but each Governmental Entity hereby expressly waives and fully,finally, and forever settles, releases and discharges, upon the Effective Date, any and all Released Claims that may exist as of such date but which Releasors do not know or suspect to exist, whether through ignorance,oversight, error,negligence or through no fault whatsoever, and which, if known, would materially affect the Governmental Entities' decision to participate in the Janssen Settlement. 10. Nothing herein is intended to modify in any way the terms of the Janssen Settlement,to which Governmental Entity hereby agrees.To the extent this Election and Release is interpreted differently from the Janssen Settlement in any respect,the Janssen Settlement controls. 87 revised July 30, 2021 I have all necessary power and authorization to execute this Election and Release on behalf of the Governmental Entity. C l Signature: / � « Name: Diane Foster for Sara Ott Title: Assistant City Manager for the City Manager Date: November 5,2021 88 revised July 30, 2021 DISTRIBUTORS' 9.18.21 EXHIBIT UPDATES EXHIBIT K Subdivision Settlement Participation Form Governmental Entity: City of Aspen State: Colorado Authorized Official: Sara Ott, City Manager Address 1: 130 S. Galena Street Address 2: City, State,Zip:Aspen,Colorado 81611 Phone: 970-920-5083 Email: sara.ott cit ofas en.com The governmental entity identified above ("Governmental Entity"), in order to obtain and in consideration for the benefits provided to the Governmental Entity pursuant to the Settlement Agreement dated July 21, 2021 ("Distributor Settlement"), and acting through the undersigned authorized official, hereby elects to participate in the Distributor Settlement, release all Released Claims against all Released Entities,and agrees as follows. 1. The Governmental Entity is aware of and has reviewed the Distributor Settlement, understands that all terms in this Participation Form have the meanings defined therein, and agrees that by signing this Participation Form, the Governmental Entity elects to participate in the Distributor Settlement and become a Participating Subdivision as provided therein. 2. The Governmental Entity shall,within 14 days of the Reference Date and prior to the filing of the Consent Judgment, secure the dismissal with prejudice of any Released Claims that it has filed. 3. The Governmental Entity agrees to the terms of the Distributor Settlement pertaining to Subdivisions as defined therein. 4. By agreeing to the terms of the Distributor Settlement and becoming a Releasor, the Governmental Entity is entitled to the benefits provided therein, including, if applicable, monetary payments beginning after the Effective Date. 5. The Governmental Entity agrees to use any monies it receives through the Distributor Settlement solely for the purposes provided therein. 6. The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity's state where the Consent Judgment is filed for purposes limited to that court's role as provided in,and for resolving disputes to the extent provided in,the Distributor Settlement. The Governmental Entity likewise agrees to arbitrate before the National Arbitration Panel as provided in, and for resolving disputes to the extent otherwise provided in,the Distributor Settlement. K-1 DISTRIBUTORS' 9.18.21 EXHIBIT UPDATES 7. The Governmental Entity has the right to enforce the Distributor Settlement as provided therein. 8. The Governmental Entity, as a Participating Subdivision,hereby becomes a Releasor for all purposes in the Distributor Settlement, including,but not limited to,all provisions of Part XI, and along with all departments,agencies, divisions, boards, commissions, districts, instrumentalities of any kind and attorneys,and any person in their official capacity elected or appointed to serve any of the foregoing and any agency, person, or other entity claiming by or through any of the foregoing, and any other entity identified in the definition of Releasor,provides for a release to the fullest extent of its authority. As a Releasor,the Governmental Entity hereby absolutely,unconditionally,and irrevocably covenants not to bring, file, or claim,or to cause,assist or permit to be brought, filed,or claimed,or to otherwise seek to establish liability for any Released Claims against any Released Entity in any forum whatsoever. The releases provided for in the Distributor Settlement are intended by the Parties to be broad and shall be interpreted so as to give the Released Entities the broadest possible bar against any liability relating in any way to Released Claims and extend to the full extent of the power of the Governmental Entity to release claims. The Distributor Settlement shall be a complete bar to any Released Claim. 9. The Governmental Entity hereby takes on all rights and obligations of a Participating Subdivision as set forth in the Distributor Settlement. 10. In connection with the releases provided for in the Distributor Settlement,each Governmental Entity expressly waives, releases,and forever discharges any and all provisions, rights,and benefits conferred by any law of any state or territory of the United States or other jurisdiction,or principle of common law, which is similar, comparable,or equivalent to § 1542 of the California Civil Code,which reads: General Release; extent. A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release,and that if known by him or her would have materially affected his or her settlement with the debtor or released party. A Releasor may hereafter discover facts other than or different from those which it knows,believes,or assumes to be true with respect to the Released Claims, but each Governmental Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges, upon the Effective Date,any and all Released Claims that may exist as of such date but which Releasors do not know or suspect to exist, whether through ignorance, oversight,error,negligence or through no fault whatsoever,and which, if known,would materially affect the Governmental Entities' decision to participate in the Distributor Settlement. K-2 DISTRIBUTORS' 9.18.21 EXHIBIT UPDATES 11.Nothing herein is intended to modify in any way the terms of the Distributor Settlement, to which Governmental Entity hereby agrees. To the extent this Participation Form is interpreted differently from the Distributor Settlement in any respect,the Distributor Settlement controls. I have all necessary power and authorization to execute this Participation Form on behalf of the Governmental Entity. Signature: Name: Diane Foster for Sara Ott Title: Assistant City Manager for City Manager Date: November 5,2021 K-3