HomeMy WebLinkAbout930607.tiff RESOLUTION
RE: APPROVE SETTLEMENT AGREEMENT AND AUTHORIZE CHAIRMAN TO SIGN - CARROLL,
MCENTEE, AND MCGINLEY, INC.
WHEREAS, the Board of County Commissioners of Weld County, Colorado,
pursuant to Colorado statute and the Weld County Home Rule Charter, is vested
with the authority of administering the affairs ofWeld County, Colorado, and
WHEREAS, the Board has been presented with a Settlement Agreement with
Carroll, McEntee, and McGinley, Inc. , in regards to the Steven Wymer litigation,
with the terms and conditions being as stated in saidagreement, and
WHEREAS, after review, the Board deems it advisable to approve said
agreement, a copy of which is attached hereto and incorporated herein by
reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Settlement Agreement with Carroll, McEntee, and
McGinley, Inc. , in regards to the Steven Wymer litigation, be, and hereby is,
approved.
BE IT FURTHER RESOLVED by the Board that the Chairman be, and hereby is,
authorized to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded,
adopted by the following vote on the 14th day of July, A.D. , 1993.
ELYad
BOARD OF COUNTY COMMISSIONERS
ATTEST: ilig WELD COUNTY, COLORADO
447
Weld County Clerk to the Board EXCUSED DATE OF SIGNING (AYE)
Con//ss/tr�ance L. Harbert, Chairman
BY:5 L MA L "U/l
itd 1(22A01-00
Deput' Clerk to the Board W. H ebster, Pro-e h
APPROVED AS TO FORM: ctt � � `�, �
J /George Baxte
�Ciotnty Attornly —Dal K. Hal
L4.....- fr. 42.<4L ,"1-7(.4/fif_
Barbara J. Kirkme er
930607
(i,ACCC8
HARKINS 8c MICHELMAN
ATTORNEYS AT LAW
2301 DUPONT DRIVE, SUITE 410
IRVINE, CALIFORNIA 92715
(7141 553-1800
FACSIMILE (714) 553-1880
s n1
1 JUL 08 1993
June 22, 1993 WELD COUNTY
ATTORNEYS OFFICE
Lee D. Morrison, Esq.
Assistant County Attorney
Weld County
915 10th Street
Greeley, CO 80631
RE: Carroll McEntee & McGinley
Dear Lee:
Here is the Settlement Agreement with Carroll McEntee &
McGinley. Please review, and if acceptable have it approved and
executed. Please note that evidence of authority of the signing
party is being required.
Naturally if there are any questions give me a call.
Best regards,
Daniel M. Harkins
Enclosures:
930607
BEST, BEST & KRIEGER
A PARTNERSHIP INC WPM PROFEIDWAL GOR,ORATONF
LAWYERS
ARTHUR L.LITTLEWORTH• ANTONIA GRAPHOS STEVEN C.D.BAUN MARY E.GILSTRAP SUITE 312
GLEN E.STEPHENS• GREGORY K.WILKINSON BRANT H.DVEIRIN DANIEL C.PARKER.JR. 39700 BOB HOPE DRIVE
WILLIAM R.OCWOLfE• WYNNE S.FURTH ERIC L.GARNER GINEVRA C.MARUM POST OFFICE BOX 1555
BARTON C.GAUT• DAVID L.BARON DENNIS M.COTA GLENN P.SABINE RANCHO MIRAGE,CALIFORNIA 92270
PAUL T.SELZER• EUGENE TANAKA JULIE HAYWARD BIGGS CHRISTINE L.RICHARDSON
DALLAS HOLMES• BASIL T.CHAPMAN RACHELLE J.NICOLLE JOANE GARCIA-COLSON TELEPHONE(619)568-2611
CHRISTOPHER L.CARPENTER. TIMOTHY M.CONNOR ROBERT W.HARGREAVES PHIUP J.KOEHLER TELECOPIER(619)340.6698
RICHARD T.ANDERSON• VICTOR L.WOLF JANICE L.WEIS DIANE C.WIESE
JOHN D.WAHLIN• DANIEL E.OLIVIER SHARYL WALKER REBECCA MARES DURNEY
MICHAEL D.HARRIS* DANIEL J.MCHUGH PATRICK H.W.F.PEARCE ALLISON C.HARGRAVE
W.CURT EALY• HOWARD B.GOLDS KIRK W.SMITH DOROTHY I.ANDERSON
THOMAS S.SLOVAK* STEPHEN P.DEITSCH JASON D.DABAREINER G.HENRY WELLES
JOHN E.BROWN MARC E.EMPEY KYLE A.SNOW JAMES R.HARPER
MICHAEL T.RIDDELL• JOHN R.ROTTSCHAEFER MARK A.EASTER DINA O.HARRIS
MEREDITH A.JURY* MARTIN A.MUELLER DIANE L.FINLEY BARBARA R.BARON OF COUNSEL
MICHAEL GRANT. J.MICHAEL SUMMEROIIR MICHELLE OUELLETTE RICHARD T.EGGER JAMES B.CORISON
FRANCIS J.BAUM• VICTORIA N.KING PETER M.BARMACK PATRICK D.DOLAN
ANNE T.THOMAS* JEFFERY J.CRANDALL DAVID P.PHIPPEN,SR. DEAN R.DERLETH
0.MARTIN NETHERY• SCOTT C.SMITH SUSAN C.NAUSS HELENE P.DREYER
GEORGE M.REYES JACK B.CLARKE,JR. CHRISTOPHER GODSON EMILY P.HEMPHILL
WILLIAM W.FLOYD,JR. BRIAN M.LEWIS BERNIE L.WILLIAMSON SONIA RUBIO SHARMA
GREGORY L.HARDKE JEANNETTE A.PETERSON ELAINE E.HILL JOHN O.PINKNEY
KENDALL H.MECVEY BRADLEY E.NEUFELD KEVIN K.RANDOLPH OFFICES IN
CLARK H.ALSOP• ELISE K.TRAYNUM JAMES B.GILPIN RIVERSIDE(909)686-1/60
DAVID J.ERWIN• WILLIAM D.DAHLING.JR. MARSHALL S.RUDOLPH RAYMOND BEST(1868-1957)MICHAEL J.ANDERSON• MATT H.MORRIS KIM A.BYRENS JAMES H.KRIEGER(1913-19751 PALM SPRINGS(619)323-7264
DOUGLAS S.PHILLIPS* JEFFREY V.DUNN CYNTHIA M.GERMANO EUGENE BEST(1893-19811 ONTARIO(909)989-8584
•A PROFESSIONAL CORPOR TION
July 6, 1993
VIA EXPRESS MAIL TO ALL COUNSEL
(See attached list)
Re: Various public entities/
Carroll McEntee & McGinley
Dear Counsel:
Enclosed please find what I believe to be the final settlement
agreement in the above-referenced matter. I have heard from most
of you regarding this agreement, which appears to be satisfactory
to all. If not, please notify me immediately.
For purposes of convenience and expediency, I would suggest
that you send the executed signature pages, resolutions and/or
other documentation, and an executed Dismissal (if your client
named CMM in the complaint) to Mike Willoughby, who will then
forward everything to Wil Kipnes in Philadelphia.
In the meantime, if you have any questions or comments, feel
free to give me a call.
Very truly yours,
BEST, BEST & KRIEGER
Mary E lstrap
Enclosure
cc: Wil Kipnes, Esq. , via facsimile
MEG37723 9 �y
�C.07
LAW OFFICES OF
BEST, BEST & KRIEGi-r2
July 3, 1993
Page 2
List of Counsel:
STRADLING, YOCCA, CARLSON & RAUTH
John F. Cannon
Wells Fargo Bank Building
660 Newport Center Drive
Suite 1600
Newport Beach, CA 92660
GIBBONS, LEES & EDRINGTON
Dolores M. Donohoe
1850 Mt. Diablo Blvd.
Walnut Creek, CA 94596
PHILLIPS, HAGLUND, HADDEN & JEFFERS
Michael B. Jeffers
4695 MacArthur Court
Suite 1150
Newport Beach, CA 92660
BORCHARD & WILLOUGHBY
Michael L. Willoughby
Michael D. Borchard
4695 MacArthur Court
Suite 1150
Newport Beach, CA 92260
HARKINS & NICHELMAN
Daniel M. Harkins
2301 Dupont Drive
Suite 410
Irvine, CA 92715
HEDGES & CALDWELL
Christopher G. Caldwell
606 S. Olive Street
Suite 500
Los Angeles, CA 90014
MEG37723
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and
entered into as of June _, 1993, among City of Big Bear Lake,
Coachella Valley Joint Powers Insurance Authority, City of Indio,
City of La Quinta, La Quinta Redevelopment Agency, City of Loma
Linda, Loma Linda Redevelopment Agency, City of Orange, City of
Palm Desert, Palm Desert Redevelopment Agency, City of Sanger,
Sanger Redevelopment Agency, City of Torrance, and Weld County,
Colorado (collectively "Municipalities") ; Carroll McEntee &
McGinley, Inc. ("CMM") and Michael Primasing.
WHEREAS, in or about December 1992, Municipalities filed
complaints in the United States District Court for the Central
District of California against CMM, Michael Primasing and others,
which cases are entitled City of Big Bear Lake v. Refco Capital
Corporation. et al. , Case No. CV-92-7633 RJK, Coachella Valley
Joint Powers Insurance Authority v. Refco Group, Ltd. , et al. , Case
No. CV-92-7630 RJK (Ex) , City of Indio v. Refco Capital
Corporation. et al. , Case No. CV-92-7632 RJK, City of La Quinta, et
al. v. Refco Group. Ltd. , et al. , Case No. CV-92-7626 RJK, City of
Loma Linda. et al. v. Refco Group, Ltd. . et al. , Case No. CV-93-
0056 RJK, City of Orange v. DLO Securities. Inc. , Case No. 92-7627
RJK (Ex) , City of Palm Desert v. Refco Capital Corporation. et al. ,
Case No. CV-92-7631 RJK, Palm Desert Redevelopment Agency v. Refco
Capital Corporation. et al. , Case No. CV-93-0057 RJK, City of
Sanger, et al. v. Refco Group. Ltd. , et al. , Case No. CV-92-7284
RJK, City of Torrance v. Kimberly Goodman, et al. , Case No. CV-92-
MEG37196 93C1:`:17
7294 RJK, Francis M. Loustalet, et al. v. Refco, Inc. , et al. , Case
No. CV-92-7628 RJK (Ex) (collectively the "Actions") ; and
WHEREAS, Municipalities have asserted claims in their
complaints relating to a fraudulent securities scheme perpetrated
by Steven D. Wymer; and
WHEREAS, CMM and Michael Primasing have denied all the
material allegations made by Municipalities in their complaints,
have maintained that their conduct has been legal and proper in all
respects and continues to deny any and all fault or liability
thereunder; and
WHEREAS, the undersigned, in order to save the expense of
protracted trials, and without any acknowledgment of any liability
whatsoever, now wish to settle and discontinue the Actions in their
entirety as to CMM and Michael Primasing only upon the terms and
conditions set forth below;
IT IS HEREBY STIPULATED AND AGREED, by and among the
undersigned, that:
1. Upon the execution by all parties of this Agreement
and in settlement of the Actions, CMM shall transfer to
Municipalities the sum of Two Hundred and Fifty Thousand Dollars
($250,000.00) . The payment shall be delivered to the trust account
of Stradling, Yocca, Carlson & Rauth in the form of a cashier's
check payable to the Stradling, Yocca, Carlson & Rauth Attorney-
Client Trust Fund.
2. Municipalities, for themselves and their respective
present and former public officials, elected representatives,
employees, agents, representatives, attorneys, successors and
MEG37196 -2-
assigns, do hereby release and discharge CMM and Michael Primasing
and their present and former affiliates, parents, subsidiaries,
officers, directors, trustees, partners, stockholders, employees,
attorneys, agents, representatives, heirs, executors,
administrators, personal representatives, successors and assigns
from all actions, causes of action, suits, debits, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, which against CMM
and Michael Primasing, their present and former affiliates,
parents, subsidiaries, officers, directors, trustees, partners,
stockholders, employees, attorneys, agents, representatives, heirs,
executors, administrators, personal representatives, successors and
assigns, the Municipalities, Municipalities ' respective present and
former public officials, elected representatives, employees,
agents, representative, attorneys, successors and assigns ever had,
now have or hereafter can, shall or may have, for, upon, or by
reason of any matter, cause or thing which in any way relates to or
arises out of the Actions and any alleged activities of Steven D.
Wymer, Denman & Co. , Institutional Treasury Management or any
entity affiliated with Mr. Wymer, which relate to the subject
matter of the Actions, from the beginning of the world to the day
and date of this Agreement.
3. CMM and Michael Primasing, for themselves and their
present and former affiliates, parents, subsidiaries, officers,
directors, trustees, partners, stockholders, employees, attorneys,
MEG37196 -3-
agents, representatives, heirs, executors, administrators, personal
representatives, successors and assigns do hereby release and
discharge the Municipalities, and the Municipalities' respective
present and former public officials, elected representatives,
employees, agents, representatives, attorneys, successors and
assigns from all actions, causes of action, suits, debits, dues,
sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, in law, admiralty or equity, which
against the Municipalities, the Municipalities ' respective present
and former public officials, elected representatives, employees,
agents, representatives, attorneys, successors and assigns, CMM and
Michael Primasing and their present and former affiliates, parents,
subsidiaries, officers, directors, trustees, partners,
stockholders, employees, attorneys, agents, representatives, heirs,
executors, administrators, personal representatives, successors and
assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing which in any
way relates to or arises out of the Actions and any alleged
activities of Steven D. Wymer, Denman & Co. , Institutional Treasury
Management or any entity affiliated with Mr. Wymer, which relate to
the subject matter of the Actions, from the beginning of the world
to the day and date of this Agreement.
4 . All parties to the Agreement agree, represent and
warrant that the matters released herein are not limited to matters
which are known or disclosed but extends to claims not currently
MEG37196 -4-
9CC:0 7
known or suspected to exist, and waive any and all rights and
benefits which they now have, or in the future may have, conferred
upon them by virtue of the provisions of Section 1542 of the Civil
Code of the State of California, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE 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.
All parties expressly acknowledge that the effect and
import of this provision has been fully explained to them by their
own counsel.
5. All parties to this Agreement agree that they will
execute any and all additional documents necessary to effect the
implementation of the provisions contained herein, including the
filing of Notices of Dismissal, with prejudice and without costs,
in the form attached hereto as Exhibit "A" .
6. All parties to this Agreement hereby acknowledge
that, except as provided for elsewhere herein, this Agreement is a
complete accord and satisfaction of all disputes, claims, causes of
action, and counterclaims that have been or may have been asserted
or filed.
7. All parties to this Agreement agree that as to all
entities or individuals who may inquire as to the terms of this
Agreement, the parties shall state that all claims have been
settled amicably without any acknowledgment of liability or
wrongdoing by any party. This provision shall not be construed,
however, as limiting the parties hereto from revealing or
disclosing the terms of the Agreement pursuant to request.
MEG37196 -5-
9CC:: 7
8 . This Agreement shall be deemed to fall within the
broadest protections afforded compromises and offers to compromise
by Rule 408 of the Federal Rules of Evidence and any comparable
provisions of state law. Neither this Agreement, nor the fact of
its existence nor any terms hereof, nor any negotiations had or
actions taken with respect to or under this Agreement, shall be
offered or received into evidence by the parties hereto in any case
or adversarial proceeding involving CMM, Michael Primasing and/or
any other party released pursuant to the provisions of paragraph 2
hereof, in any court or administrative agency to prove liability,
other than to implement and enforce the provisions of this
Agreement.
9. This Agreement and any negotiations had or actions
taken with respect to or under this Agreement are not, and shall
not be construed to be, an admission or confession by or on the
part of CMM, Michael Primasing or any other party released pursuant
to the provisions of paragraph 2 hereof of any liability or
wrongdoing whatsoever in connection with the claims asserted in the
Actions, and shall not be construed to indicate the merit or lack
of merit of any of the Municipalities' claims.
10. All parties to the Agreement represent and warrant
that each has full authority to execute the Agreement and to bind
itself to the Agreement by execution hereof, that each party has
obtained all necessary legal approvals to enter into this
Agreement, and that the execution and delivery of this Agreement
will not violate any agreement, court order, administrative order
of any governmental entity, or any law or governmental regulation.
MEG37196 -6-
9tC;;°'7
Each party to this Agreement shall submit concurrent with the
execution of the Agreement a resolution or other satisfactory
documentation indicating that the signatory for that party is
vested with the authority to bind the party for purposes of this
Agreement.
11. Municipalities hereby acknowledge that the Agreement
was negotiated and executed in good faith and that the terms of the
Agreement, including those set forth in paragraph 1, are within the
reasonable range of CMM and Michael Primasing' s share and
percentage of liability, if any, for the Municipalities ' damages,
taking into account the facts and circumstances of the Actions, as
enunciated in Tech-Built v. Woodward Clyde & Associates, 38 Ca1. 3d
488 , 213 Cal.Rptr. 256 (1985) . Municipalities further agree to
assist CMM and Michael Primasing, should they seek a judicial
determination regarding the good faith nature of the Agreement
and/or an order barring contribution claims. This assistance may
include, but is not limited to, providing CMM and Michael Primasing
with declarations and/or other evidence supporting the good faith
nature of the Agreement, consistent with preserving the
confidentiality of information or documents protected from
disclosure by the attorney-client privilege and/or attorney work
product doctrine.
12. This Agreement may be executed in multiple
counterparts and shall become effective when it has been signed by
duly authorized representatives of each of the parties.
13 . This Agreement and other documents executed in order
to implement the provisions of this Agreement shall be governed by
+EG37196 -7-
93C:0 7
and construed in accordance with the laws of the State of
California.
14. This Agreement represents the entire agreement of
the parties and is made without reliance upon any statement or
representation not contained herein, the making of any such
statements or representations being specifically denied.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement of the day and year first above written.
V
By:
City of Big Bear Lake
By:
Coachella Valley Joint Powers
Insurance Authority
By:
City of Indio
By:
City of La Quinta
By:
La Quinta Redevelopment Agency
By:
City of Loma Linda
MEG37196 -8- nry
v tk
By:
Loma Linda Redevelopment Agency
By:
City of Orange
By:
City of Palm Desert
By:
Palm Desert Redevelopment Agency
By:
City of Sanger
ute By:
I.ITEST: City of Torrance
WELD COUNTY CLERK T THE BOARD
BY: A.[2- � T
DEi'U 1 l Y CLE K to THE B0� By: /9-r- ��Ly
/,9/93
Weld County, Colorado
By:
Carroll McEntee & McGinley, Inc.
By:
Michael Primasing
MEG37196 _9_
93G 37
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