HomeMy WebLinkAbout961286.tiff RESOLUTION
RE: APPROVE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS WITH
VALLEY BANK OF COMMERCE AND AUTHORIZE CHAIR 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 Release
of All Claims between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of Francis M. Loustalet, as Treasurer for
Weld County, and Valley Bank of Commerce, with terms and conditions being as stated in said
agreement and release, and
WHEREAS, after review, the Board deems it advisable to approve said agreement and
release, 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 Release of All Claims between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of
Weld County, on behalf of Francis M. Loustalet, as Treasurer for Weld County, and Valley Bank
of Commerce be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement and release.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 24th day of July, A.D., 1996.
BOARD OF COUNTY COMMISSIONERS
a
�ti\ /F�j COUNTY, COLOR yD C O
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4101// W Bar.ara J. Kirkmeyer, Chair
`i'asi 1 n ty Clerk to the Board
Cc e C vi
O®utt ul e LI C�i� n E. Baxter, em/
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Deputy Clefry to the Board ��� -���
Dale K. Hall
APP TO M: FXCIISFD r)ATF OF SIGNING (AYF
i Constance L. Harbert
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y Attorney /l ,t )t o i -' 1
W. .'Webster ,
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SETTLEMENT AGREEMENT
AND RELEASE OF ALL CLAIMS
This Release and Settlement Agreement ("Agreement") is
made by and between Plaintiffs the City of Orange, City of Big
Bear Lake, City of Indio, City of Palm Desert, Palm Desert
Redevelopment Agency, City of Torrance, City of La Quinta, La
Quinta Redevelopment Agency, City of Loma Linda, Loma Linda
Redevelopment Agency, Coachella Valley Joint Powers Insurance
Authority, City of Sanger, Sanger Redevelopment Agency, and
Francis M. Loustalet, as Treasurer for Weld County and Board of
County Commissioners of Weld County, (hereinafter "Releasors") ,
and defendant Valley Bank of Commerce, with reference to the
following:
1.0 RECITALS
1. 1 Certain civil litigation has been filed in the
Superior Court of the State of California for the County of Los
Angeles bearing Los Angeles Superior Court Case No. BC106461
entitled City of Orange, et al. v. Alabama Treasury Advisory
Program, et al. (hereinafter "The Litigation") .
1.2 Subject to the terms and conditions of this
Agreement, Valley Bank of Commerce and Releasors wish to enter
into a settlement with respect to the facts, circumstances and
events referred to in the pleadings in The Litigation, or raised
during the course of The Litigation.
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2 .0 RELEASE AND COVENANTS
2. 1 For and in consideration of Two Thousand Five
Hundred Dollars ($2, 500. 00) , receipt of which is hereby
acknowledged, Releasors hereby release, discharge and acquit
Valley Bank of Commerce, its subsidiaries, and each of its past,
present and future officers, directors, elected and appointed
officials, agents, insurers, reinsurers, servants, accountants,
financial advisors, attorneys or employees, of and from any and
all claims, demands, sums of money, actions, rights, causes of
action, obligations and liabilities of any kind or nature,
whatsoever, which the Releasors may have had or claim to have
had, or now have or claim to have, or hereafter may have or
assert to have, which arise out of or are in any manner
whatsoever, directly or indirectly, connected with or related to
The Litigation and all claims which arise out of the incident(s)
or transaction(s) that gave rise to The Litigation.
2 . 2 Don Howarth, attorney for Releasors, hereby agrees
to execute a dismissal with prejudice of Valley Bank of Commerce
from the complaint described in paragraph 1. 1, cause it to be
filed in the court specified in that Paragraph, and forward a
conformed copy of the dismissal to counsel for Valley Bank of
Commerce.
2 . 3 In return for the promises contained herein, and
for other good and valuable consideration, receipt of which is
hereby acknowledged, Valley Bank of Commerce hereby releases,
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discharges and acquits Releasors, their subsidiaries, and each of
their past, present and future directors, elected and appointed
officials, agents, insurers, reinsurers, servants, employees,
attorneys, financial advisors and accountants, of and from any
and all claims, demands, debts, guaranties, sums of money,
rights, costs, expenses (including attorney's fees) , causes of
action, actions, obligations and liabilities of any kind or
nature, whatsoever ("Claims") , whether known or unknown,
suspected or unsuspected, which Valley Bank of Commerce had,
has, or may have had, which are based upon, arise out of, or are
in any manner whatsoever, directly or indirectly, connected with
or related to the Litigation and the claims which arise out of
the acts, incidents or transactions that gave rise to the
Litigation, and the facts and circumstances alleged in the
pleadings on file in the Litigation.
3.0 WAIVER OF CIVIL CODE 51542
3 . 1 All parties acknowledge that they have been
advised by legal counsel and are familiar with the provisions of
Section 1542 of the California Civil Code 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
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release, which if known by him must
have materially affected his
settlement with the debtor.
3 .2 The parties hereto and each of them being aware of
said code section hereby expressly waive any and all rights that
they may have thereunder. The parties understand and acknowledge
that the significance and the consequence of this specific waiver
of California Civil Code §1542 is that even if any party to this
Agreement should eventually suffer additional damages or
liabilities in any way related to or resulting from the facts and
claims which are the subject of this Agreement, they will not be
permitted to make any claim for those damages. Furthermore, all
parties acknowledge that they intend these consequences even as
to claims for any injuries, damages, losses or liabilities in any
way related to or resulting from the facts and claims which are
the subject of this Agreement that may exist as of the date of
the Agreement that may exist as of the date of the Agreement but
which the parties do not know exist, and which, if known, would
materially affect any party's decision to execute this release,
regardless of whether any party's lack of knowledge is the result
of ignorance, oversight, error, negligence, or any other cause.
4.0 NO ADMISSION
4 . 1 This Settlement Agreement is not intended to be
admission of liability by any party hereto.
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4 . 2 It is expressly understood and agreed by and
between the parties hereto that this Settlement Agreement is the
result of a compromise of disputed claims and that each of the
parties denies any liability whatsoever to the other parties, but
in executing this Agreement, it is the intention of the parties
to fully and finally dispose of any and all claims which exist or
which may hereafter exist between the parties.
5. 0 COSTS AND ATTORNEY'S FEES
5. 1 Releasors and defendant Valley Bank of Commerce
hereby agree that each party to this Agreement shall pay its own
costs, expenses and attorney's fees in connection with the
prosecution of, or defense against any claim asserted in The
Litigation. All parties hereto further agree that for purposes
of costs and fees, or other damages or expenses, there shall be
no prevailing party in The Litigation.
5.2 If an action is instituted by any party to this
Agreement for breach of this Agreement, or its terms, or for
breach of any warranty or representation, or to interpret or
enforce this Agreement, the prevailing party shall be entitled to
recover their reasonable attorney's fees and other costs,
including all attorney's fees and costs of suit incurred in
connection with the executing and collection upon final judgment
in said litigation in addition to any other relief.
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6.0 COUNTERPARTS
6. 1 This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and
which taken together shall constitute one and the same instrument
and Agreement. A photocopy of a signed counterpart may be used
in lieu of an original for all purposes for which an original may
be used.
7. 0 AUTHORITY: WARRANTIES
7. 1 The parties hereto, and each of them, recognize
that it is the intent of all parties to this Agreement, in
entering into this Agreement, to resolve The Litigation.
Accordingly, the parties, and each of them, warrant and represent
as follows:
a. Neither they nor any individual or
entity in which they are an owner or which is
controlled by them has any intention nor will it
assert any claims or file any lawsuits against the
other party which are based upon the facts,
circumstances and events referred to in The
Litigation;
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b. The parties hereto and each of them,
have not assigned any right, title or interest in
or to any claim, cause of action, obligation,
right, or instrument which may presently exist or
may have existed in the past, or may exist in the
future against any party to this Agreement or
their assigns; and
c. Each of the persons and entities
executing this Agreement on behalf of any party
hereto is authorized and empowered to do so.
8.0 MISCELLANEOUS
8 . 1 The parties hereto and covenant not to institute
any lawsuit which is based on any claims released or resolved by
this Agreement or which is in derogation of this Agreement.
8. 2 The parties hereto, and each of them, represent
and warrant in agreeing to the terms of this Agreement, they have
read the Agreement, they have received independent legal advice
from the counsel of their choice with respect to the advisability
of making this Agreement, they are aware of the content and legal
effect of this Agreement and have full knowledge of all rights
which they may have, and they are acting on the advice of counsel
of their choice.
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8.3 No party has made any statement, representation,
or promise, other than as set forth herein, to any other party in
entering into this Agreement and all parties acknowledge that in
entering into this Agreement they have not relied upon any
representations, promises, or conditions not specifically set
forth herein. Any representation, -warranty, promise, or
condition, whether written or oral, not specifically incorporated
herein shall not be binding upon any of the parties hereto.
8.4 The terms hereof are severable, and the invalidity
of any term hereof shall not affect the validity of any other
term.
8. 5 This Settlement Agreement shall inure to the
benefit of and be binding upon the heirs, administrators,
executors, successors and assigns of the respective parties
hereto, and each of them.
8 . 6 Time is of the essence of all terms hereof.
8 .7 Each party and their attorneys shall sign all
documents, and do all other things reasonably necessary to carry
out the purpose, intent, and terms of this Agreement.
8.8 This Agreement is made and entered into in the
State of California and shall be interpreted, applied, and
enforced under and pursuant to the laws of said State.
8. 9 This Agreement constitutes a single, integrated,
written contract and expresses the entire agreement between the
parties pertaining to the subject matter contained in it and
supersedes any and all prior or contemporaneous agreements,
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representations, or understandings of the parties. No
supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all of the parties.
8 . 10 The consideration hereinabove recited is
contractual and not mere recital.
I CERTIFY THAT I HAVE READ THE FOREGOING AGREEMENT IN
ITS ENTIRETY, INCLUDING CIVIL CODE SECTION 1542 CITED HEREIN,
THAT I FULLY UNDERSTAND ALL OF THE LANGUAGE CONTAINED HEREIN, AND
THAT I AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET
FORTH HEREIN.
IN WITNESS WHEREOF, the parties hereto have entered
into and executed this agreement as of the date first mentioned.
FOR PLAINTIFFS
DATED: , 1996
Authorized Representative of the
CITY OF ORANGE
DATED: , 1996
Authorized Representative of the
CITY OF BIG BEAR LAKE
DATED: , 1996
Authorized Representative of the
CITY OF INDIO
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961286
DATED: , 1996
Authorized Representative of the
CITY OF PALM DESERT
DATED: , 1996
-
Authorized Representative of the
PALM DESERT REDEVELOPMENT AGENCY
DATED: , 1996
Authorized Representative of the
CITY OF TORRANCE
DATED: , 1996
Authorized Representative of the
CITY OF LA QUINTA
DATED: , 1996
Authorized Representative of the
LA QUINTA REDEVELOPMENT AGENCY
DATED: , 1996
Authorized Representative of the
CITY OF LOMA LINDA
DATED: , 1996
Authorized Representative of the
LOMA LINDA REDEVELOPMENT AGENCY
DATED: , 1996
Authorized Representative of the
COACHELLA VALLEY JOINT POWERS
INSURANCE AUTHORITY
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DATED: , 1996
Authorized Representative of the
CITY OF SANGER
DATED: , 1996
Authorized Representative of the
SANGER REDEVELOPMENT AGENCY
DATED: qA o��,�4-, 1 Efla orized
t/ l
ze Repre entat' e of the
IS M. LOUSTALET, AS TREASURER
ELD COUNTY AND BOARD OF COUNTY
Q
SSIONERS OF WELD COUNTY
U N APPROVED AS TO FORM AND CONTENT:
HOWARTH & SMITH
DATED: , 1996 By:
Don Howarth
Attorney for Plaintiffs
CITY OF ORANGE, CITY OF BIG BEAR
LAKE, CITY OF INDIO, CITY OF PALM
DESERT, PALM DESERT REDEVELOPMENT
AGENCY, CITY OF TORRANCE, CITY OF
LA QUINTA, LA QUINTA REDEVELOPMENT
AGENCY, CITY OF LOMA LINDA, LOMA
LINDA REDEVELOPMENT AGENCY,
COACHELLA VALLEY JOINT POWERS
INSURANCE AUTHORITY, CITY OF
SANGER, SANGER REDEVELOPMENT AGENCY
AND FRANCIS M. LOUSTALET, AS
TREASURE FOR WELD COUNTY AND BOARD
OF COUNTY COMMISSIONERS OF WELD
COUNTY
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FOR DEFENDANT VALLEY BANK OF
COMMERCE
DATED: , 1996
Authorized Representative of the
Valley Bank of Commerce
APPROVED AS TO FORM AND CONTENT:
SANDERS, BRUIN, COLL & WORLEY, P.A.
DATED: , 1996
Eric J. Coll
Attorney for Defendant
Valley Bank of Commerce
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