HomeMy WebLinkAbout930799.tiff RESOLUTION
RE: APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASES WITH GREENWICH CAPITAL
MARKETS, INC. AND MICHAEL HOWE 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 and
Mutual Releases with Greenwich Capital Markets, Inc. and Michael Howe 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 and Mutual Releases with
Greenwich Capital Markets, Inc. and Michael Howe 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 16th day of August, A.D. , 1993.
` A/�� �� BOARD OF COUNTY COMMISSIONERS
ATTEST: /`y'/pyj�j� , / WELD COUNTY, COLORADO '/
Weld County Clerk to the Board �� ���� ��/ _ rirte...e
Constance L. HHaaarbeerrjt�, Chairman
BY: / :16„ Yc GX- �t �/
Deputy Cler to the Bsar�-� W. H, ebste , Pro iTem
APPROVED AS TO FORM: C «._ C(( r
v ge . Baxt
County Attorhey --1„ Da e Hall
I7,,,ALKE___ws--/Barbara J. Ki-rkm yer
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SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This SETTLEMENT AGREEMENT AND MUTUAL RELEASES (the
"AGREEMENT') is made and entered into in California as of the 3L' day of July, 1993,
by and between Weld County, Colorado ("Weld"), on the one hand, and Greenwich Capital
Markets, Inc. ("Greenwich") and Michael Howe ("Howe"), on the other hand.
RECITALS
A. On or about December 9, 1992, Weld caused a complaint to be filed
in the United States District Court for the Central District of California, against Greenwich,
Howe, and others, for violation of Federal Securities Laws, among other claims,which case
is entitled Francis M. Loustalet, an individual, as Treasurer of Weld County, Colorado. and
Board of County Commissioners of Weld County, Colorado v. Refco, Inc., a New York
corporation, et al., Case No. CV-92-7628 RJK(Ex) (the "Action");
B. The parties hereto wish to compromise and settle the issues raised in
connection with the Action and to release each other from any and all liability connected
therewith, with the understanding that the releases do not constitute an admission of any
wrongdoing, illegal conduct, or any other matter on the part of the parties.
C. Greenwich and Howe assert that they are blameless and without any
liability whatsoever in connection with the claims released herein. Weld disputes that
assertion and contends that Greenwich and Howe are liable for the claims stated in the
complaint filed in the Action. The parties have agreed to this settlement to avoid the
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significant costs associated with a prosecution or defense of this lawsuit, including but not
limited to, attorneys' fees and costs, expenditure of time by the parties and their personnel,
and other costs, as well as the uncertainties associated with continuing the Action.
NOW, THEREFORE, in consideration of the promises hereinafter set forth
and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Upon execution of this AGREEMENT, Greenwich shall pay to Weld
the sum of Fifty Thousand Dollars ($50,000.00). The payment shall be delivered to Harkins
& Michelman and shall be in the form of a cashiers check made payable to Weld County,
Colorado.
2. Upon receipt of the payment described in paragraph 1 above, Weld
shall direct its counsel to file a notice of dismissal with prejudice of the Action as to
defendants Greenwich and-Howe, only.
3. Weld, for itself and its past and present public officials, elected
representatives, attorneys, agents, employees, and other representatives, does hereby,
absolutely, fully and forever release, waive, relinquish, and discharge Greenwich and Howe,
and their respective past and present predecessors-in-interest, legal successors and assigns,
officers and directors
t- heirs, executors, administrators, personal representatives, members, agents,Aemployees,
1k\ and the officers, employees and directors of their respective parents and subsidiaries
representatives, attorneys,parents, subsidiaries,(1partners, affiliates, and each of them,of-and
herein after "Released Parties", of and
Afrom any and all manner of action or actions, cause or causes of action, suits, debts,
liabilities, demands, sums of money in controversy, damages, accounts, reckonings, and liens
of every kind or nature whatsoever (collectively, the "Claim" or "Claims"), whether known,
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suspected or unsuspected which it shall or may have, own or hold, which it at any time
heretofore had, owned or held, or could, shall or may hereafter own, or hold, by reason of,
arising out of, or in connection with any matter, cause or thing whatsoever occurred, done
or omitted to be done prior to the date this AGREEMENT becomes effective, without
exception, including without limitation, such matters which relate to or in any way arise
out of, or could relate to or arise out of the Action. From and after the date hereof,
neither Weld, nor its successors or assigns, shall have any Claim of any kind or nature on
the Released Parties
J nr againstk r n t-or—Hewe�-of-theif-4ega ueeessers -assigns•,-employees,-or—agents
NU R I
directly or indirectly on any such matter or cause, fact, thing, act or omission existing, done
or omitted to be done at any time whatsoever to and including the date hereof, including
without limitation, matters related to or in any way arising out of or which could relate to
or arise out of the Action.
4. Greenwich, for itself and its past and present predecessors in interest,
parents, subsidiaries, partners, members, stockholders, officers, and directors, does hereby,
absolutely, fully and forever release, waive, relinquish, and discharge Weld and its past
and present public officials, elected representatives, legal successors and assigns, employees,
agents, representatives, attorneys, and each of them, of and from any and all manner of
action or actions, cause or causes of action, suits, debts, liabilities, demands, sums of money
in controversy, damages, accounts, reckonings, and liens of every kind or nature whatsoever,
(collectively the "Claim" or "Claims"), whether known, suspected, or unsuspected which it
shall or may have, own or hold, which it at any time heretofore had, owned or held, or
could, shall or may hereafter own, or hold, by reason of, arising out of, or in connection
with any matter, cause or thing whatsoever occurred, done or omitted to be done prior to
the date this AGREEMENT becomes effective, without exception, including without
limitation, such matters which relate to or in any way arise out of, or could relate to or
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arise out of, the Action, including without limitation claims which Greenwich shall or may
have, now or in the future, for malicious prosecution, abuse of process, or sanctions under
Rule 11, Federal Rules of Civil Procedure, based upon the filing and/or prosecution of the
Action. From and after the date hereof, neither Greenwich nor its successors or assigns,
shall have any Claim of any kind or nature on or against Weld, or its legal successors,
assigns, employees, or agents directly or indirectly on any such matter or cause, fact, thing,
act or omission existing, done or omitted to be done at any time whatsoever to and
including the date hereof, including without limitation, matters related to or in any way
arising out of or which could relate to or arise out of the Action.
5. Howe, for himself, and his past and present predecessors in interest,
heirs, executors, administrators, personal representatives, and agents, does hereby,
absolutely, fully and forever release, waive, relinquish, and discharge Weld and its past
and present public officials, elected representatives, legal successors and assigns,employees,
agents, representatives, attorneys, and each of them, of and from any and all manner of
action or actions, cause or causes of action, suits, debts, liabilities, demands, sums of money
in controversy, damages, accounts, reckonings, and liens of every kind or nature whatsoever,
(collectively the "Claim" or "Claims"), whether known, suspected, or unsuspected which he
shall or may have, own or hold, which he at any time heretofore had, owned or held, or
could, shall or may hereafter own, or hold, by reason of, arising out of, or in connection
with any matter, cause or thing whatsoever occurred, done or omitted to be done prior to
the date this AGREEMENT becomes effective, without exception, including without
limitation, such matters which relate to or in any way arise out of, or could relate to or
arise out of, the Action, including without limitation claims which Howe shall or may have,
now or in the future, for malicious prosecution, abuse of process, or sanctions under
Rule 11, Federal Rules of Civil Procedure, based upon the filing and/or prosecution of the
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Action. From and after the date hereof, neither Howe nor his successors or assigns, shall
have any Claim of any kind or nature on or against Weld, or its legal successors, assigns,
employees, or agents directly or indirectly on any such matter or cause, fact, thing, act or
omission existing, done or omitted to be done at any time whatsoever to and including the
date hereof, including without limitation, matters related to or in any way arising out of or
which could relate to or arise out of the Action.
6. Each of the parties further agrees, represents and warrants that the
matters released herein are not limited to matters which are known or disclosed, and each
waives any and all rights and benefits which it now has, or in the future may have,
conferred upon it 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.
7. The provisions of this AGREEMENT shall be binding and extend to
and inure to the benefit of the partners, employees, legal successors, assigns, heirs,
executors, and administrators of each of the parties, including without limitation, any
partnerships, corporations or other entities in which any of them have a controlling interest
or position, and shall also be binding upon their agents, servants, representatives, attorneys
and persons acting for them or on their behalf.
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8. This AGREEMENT may be used by any one or more of the parties
hereto as a full and complete defense to, and the parties hereby consent that it may be
used as the basis for an injunction against, any action, suit or other proceeding based on
any Claim released by this AGREEMENT as to any one or more of the parties.
9. This AGREEMENT and the letter from Michael L. Willoughby to
Thomas Puccio dated July 9, 1993 embody the entire agreement between the parties
related to the subject matter hereof and supersede and replace all prior negotiations or
proposed agreements, written or oral, relating thereto. Each of the parties hereto
acknowledges that no other party, nor any agent or attorney of any other party, has made
any promise, representations or warranty whatsoever, express or implied, not contained
therein concerning the subject matter hereof, to induce them to execute this
AGREEMENT in reliance upon any such promise, representation or warranty not
contained therein. No provision of this document may be amended or added hereto except
by an agreement in writing signed by all parties hereto or their respective successors-in-
interest.
10. Each of the parties represents and warrants that (1) it has not
heretofore assigned or transferred or purported to assign or transfer any of the Claims
released herein to any person or entity for any purpose whatsoever; (2) that each has full
authority to execute the AGREEMENT and bind itself to the AGREEMENT by execution
hereof; (3) that each party has obtained all necessary legal approvals to enter into this
AGREEMENT; and (4) that to the best of their knowledge, 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.
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11. No action by any of the parties hereto, either previously or in
connection with this AGREEMENT, shall be deemed or construed to be an admission of
the truth or falsity of any matter pertaining to any Claim referred to herein or relating to
the subject matter of this AGREEMENT, or an acknowledgment by such party, or any of
them, of any liability or lack of liability to the other party hereto, or to any other person.
12. Weld hereby acknowledges that the AGREEMENT was negotiated
and executed in good faith and that the terms of the settlement, including those set forth
in Paragraph 1, are within the reasonable range of Greenwich's and Howe's share and
percentage of liability for Weld's damages, taking into account the facts and circumstances
of the Action as enunciated in Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Ca1.3d
488, 213 Cal.Rptr. 256 (1985). Weld agrees to assist Greenwich and Howe should
Greenwich and/or Howe 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 Greenwich and/or Howe 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.
13. This AGREEMENT may be executed in any number of counterparts,
and if so executed, each such counterpart shall have the same force and full effect of an
original. If any term or provision of the AGREEMENT is determined to be invalid or
unenforceable, the remaining terms and provisions shall not be affected thereby and shall
remain in full force and effect to the maximum extent permitted by law.
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14. All the agreements, representations, warranties and obligations of the
parties set forth in this AGREEMENT shall survive the execution of this AGREEMENT.
This AGREEMENT shall be governed by and construed under the laws of the State of
California.
15. THE UNDERSIGNED HEREBY CERTIFY THEY HAVE READ
ALL OF THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASES AND
FULLY UNDERSTAND ALL OF THE SAME.
DATED: Aug 16 , 1993. Weld County, Colorado (��
By:4 y iL�
Chairman, Board of County 08/18/93
08/1.8/93
Commissioners of Weld County,
Colorado
DATED: July 30, 1993. Greenwich Capital Markets, Inc.
By:
enior Vice President &
General Counsel of Greenwich Capital
Markets, Inc.
DATED: July 30, 1993 Michael Howe
//
By: //G -[-4. � Wi------
Micha Howe
8
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THE FACE •F THIS • •CUMENT H •S A C•L• •E• =ACKG-•UN• •N WHITE i.Ai.E..
c SHIER'S CHECK 8366 00
.Fleet Bank
HARTFORD. CT 06115 AUGl 03; 1993
836600 139 8049• OgTE
******501O00•00 .«.
WELD CcJ JNTy a COLOR - s o
PAY-TO THE ORDER OF
- nbuntte ans7 'n udreputfed
Ij _a TURa /AEA
NOTICE The Porchese of on indemnity bond for twice(2)the amount of this
check ill be requited before any replacement or reimbursement of this cheek,
will be made in the event that this check is lost,stolen,or destroyed. AungRtz, RE
-•THE _ •CK •FTHIS ••CUMENT C•NT• INS • NA'TI FICI • L W•TE-MA-K - H•L• •T • N • NGLE T• VIEW
II'8366001i' •:0LL900652i: 0411062 350 '.u'
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930799
HAaRINS 8e MICHELMAN
ATTORNEYS AT LAW
23O1 DUPONT DRIVE, SUITE 4)O
IRVINE, CALIFORNIA 92715
1714) S53-18OO
FACSIMILE (7)4) 553-188O
August 9, 1993
Lee D. Morrison, Esq.
Assistant County Attorney
Weld County
915 10th Street
Greeley, CO 80631
RE: Greenwich Capital Markets, Inc.
Dear Lee:
Here is the REVISED Settlement Agreement with Greenwich.
The revisions are at (A. ) page 2, paragraph 3, and (B. ) page 3
first unnumbered paragraph. Please review, and if acceptable have
it approved and executed. It is my position that the changes only
amplify our agreement. Please note that evidence of authority of
the signing party is being required.
I have attached a copy of the check that is being held in
Mike Willoughby's trust account.
Naturally if there are any questions give me a call.
Best regards,
Daniel M. Harkins
Enclosures:
5=C759
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