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Home My WebLink About930644.tiff RESOLUTION RE: APPROVE SETTLEMENT AGREEMENT WITH BARRINGTON TRADING CO. , AND AUTHORIZE CHAIRMAN TO SIGN 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 of Weld County, Colorado, and WHEREAS, the Board has been presented with a Settlement Agreement with Barrington Trading Co. , concerning the Steven Wymer litigation, with the terms and conditions being as stated in said agreement, 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 Barrington Trading Co. , concerning 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 26th day of July, A.D. , 1993. / ,J I / / BOARD OF COUNTY COMMISSIONERS ATTEST: WELD COUNTY, COLORADO ,,i• •talb,,itt,,/1 Weld County Clerk to the Board � �/J� / Constance L. Harbert, Chairman BY: i.t-k.6"'�!�-,C aZcJ 41{ � �� .�7j Deputy jCperk to the Board W. 411. tf ter, Pro- m APPR /AS TO FORM: k�/� � `A� eorge Baxter unty Att ney' Dale K. Hall -/Y /Barbara J. Kirkme er C 930644 At°163® Cc ( , , SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made and entered into as of July _, 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") and Barrington Trading Co. ("Barrington") . WHEREAS, beginning in or about December 1991, Municipalities filed complaints in the United States District Court for the Central District of California against Barrington 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 (Ex) , 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. - 1 - 052-11\SEI ILE.75\5jrj S_C644 Kimberly Goodman, et al. , Case No. CV-92-7294 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, Barrington has denied all the material allegations made by Municipalities in their Complaints, has maintained that its 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 Barrington and Terry Anderson only upon the terms and conditions set forth below; IT IS HEREBY STIPULATED AND AGREED, by and among the undersigned, that: 1. On condition that all parties first shall have executed this Agreement and delivered the executed Agreement to Barrington, and in settlement of the Actions, Barrington shall transfer to Municipalities the sum of One Hundred and Ninety Thousand Dollars ($190, 000. 00) . Payment shall be made to the - 2 - 052-11\SETTLE.75\Sjxj 930644 parties' counsel, as shown on Schedule "A" hereto, within five business days of delivery of the executed Agreement to Barrington' s counsel . 2 . Municipalities, for themselves and their respective present, former and future public officials, elected representatives, employees, agents, representatives, attorneys, successors and assigns, (collectively "Municipalities et al . ") do hereby release and discharge Barrington and its present, former and future affiliates, parents, subsidiaries, officers, directors, trustees, partners, stockholders, employees, attorneys, agents, representatives, heirs, executors, administrators, personal representatives, successors and assigns (collectively, "Barrington et al . ") 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 (collectively "claims") , which Municipalities et al . 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 or any alleged activities of Steven D. Wymer, Denman & Co. , Institutional Treasury Management or any entity affiliated with Mr. Wymer, from the beginning of the world to the day and date of this agreement. 3 . Barrington et al. does hereby release and discharge the Municipalities et al . from all claims Barrington et al. ever 3 - 052-11\SEI11.E75\Srj had, now has 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 or any alleged activities of Steven D. Wymer, Denman & Co. , Institutional Treasury Management or any entity affiliated with Mr. Wymer, 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, 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. 4 - 052-11\SETTI E.75 5p) 930644 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 . 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 Barrington 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 or any of the Municipalities' claims. 8 . 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. 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. 5 - 052-11\SEYU E.75\5jrj K1'0644 9 . 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 Barrington'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 Barrington should it 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 Barrington 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. 10 . 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. 11. This Agreement and other documents executed in order to implement the provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of California. - 6 - 052-11\SETTI E.75\5jrj 930644 12 . 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. 13 . In the event of any dispute arising of this Agreement, the prevailing party shall be entitled to receive its costs and attorneys ' fees. IT WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. 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 - 7 - 052-11\SETTLE-75\5jrj 9?0c44 By LOMA LINDA REDEVELOPMENT AGENCY By - € CITY OF ORANGE By - CITY OF PALM DESERT By w PALM DESERT REDEVELOPMENT AGENCY P By - CITY OF SANGER ; By - SANGER REDEVELOPMENT AGENCY By - death CITY OF TORRANCE ATTEST: /0 ` / WELD� COUPJTY CLERK 0 THE BOARD //' t✓/ d// By UG u jC ' dy%,C_/,cil.4- BY: 07�'��/93 DEPUTY CLE K 0 THE BOAF�� 4 WELD COUNTY, COLORADO i I I By BARRINGTON TRADING CO. - 8 — 052-11\SETIlin n i44 "SCHEDULE A" 1. Best, Best & Krieger, and in trust for City of Big Bear Lake, City of Indio, City of Palm Desert and the Palm Desert Redevelopment Agency $ 57 , 000 2 . Gibbons, Lees & Edrington, and in trust for Coachella Valley Joint Powers Insurance Authority 19, 000 3 . Borchard & Willoughby, and in trust for City of Orange 19, 000 4 . Harkins & Michelman, and in trust for Francis M. Laustalet, as Treasurer of Weld County, Colorado, and the Board of County Commissioners of Weld County, Colorado 19, 000 5. Stradling, Yocca, Carlson & Rauth, and in trust for City of La Quinta, La Quinta Redevelopment Agency, City of Loma Linda, Loma Linda Redevelopment Agency, City of Sanger and Sanger Redevelopment Agency 57, 000 6. Hedges & Caldwell, and in trust for City of Torrance 19 , 000 9 - 052-11\SE111,1-..75\Sjrj X30644 HARKINS 8c MICHRIMAN ATTORNEYS AT LAW 2301 DUPONT DRIVE, SUITE 410 IRVINE, CALIFORNIA 9271E 17141 553-1800 FACSIMILE 17141 553-1880 11 JUL 21 1993 July 19, 1993 WELD OUNTY ATTORNEYC'S OFFICE Lee D. Morrison, Esq. Assistant County Attorney Weld County 915 10th Street Greeley, CO 80631 RE: Barrington Trading Co. Dear Lee: Here is the Settlement Agreement with Barrington Trading Co. 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, vk ' \N.- Daniel M. Harkins Enclosures: 92.) )644 LAW OFFICES HEDGES b CALDWELL JUL 141993 A PROFESSIONAL CORPORATION CHRISTOPHER G.CALDWELL 606 SOUTH OLIVE STREET, SUITE 500 GEORGE R. HEDGES LOS ANGELES, CALIFORNIA 90014-1507 NANCY C. nRAy:iLL TELEPHONE (213)629-9040 MICHAEL R. LESLIE MARY NEWCOMBE TELECOPIER(213)629-9022 DAVID PETTIT July 13, 1993 Michael Willoughby, Esq. Daniel M. Harkins, Esq. Borchard & Willoughby Harkins & Michelman 4695 MacArthur Ct. , Suite 1150 2301 Dupont Drive, Suite 410 Newport Beach, CA 92660 Irvine, CA 92715 Martin Nethery, Esq. John F. Cannon, Esq. Best, Best & Krieger Stradling, Yocca, Carlson P.O. Box 5056 & Rauth Rancho Mirage, CA 92270 660 Newport Center Drive Newport Beach, CA 92660 Dolores Donohoe, Esq. Gibbons, Lees & Edrington 1850 Mt. Diablo Boulevard Suite 200 Walnut Creek, CA 94596 Re: Final Barrington Settlement Agreement Dear Counsel : Enclosed is a final version of the Barrington Settlement Agreement to be executed by your clients. The only changes that have been made to the draft I sent you on July 9, 1993, is an alteration in the description of John Cannon's clients on Schedule A, and the addition of a signature line for Sanger Redevelopment Agency. Please get this executed by your clients as soon as possible and return it to me along with the appropriate evidence of your clients ' authority to sign the settlement. As soon as I get executed copies back from all of you, I will transmit them to Ralph Zarefsky, so that he will then send each of us checks as set forth on Schedule A. Sincerely, RISTOPHER� G G. CALDWELL CGC/lar Enclosure I:\052-11\C0UN0713 330644 pg , pp�� n n N Ci a VI i. 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