HomeMy WebLinkAbout981310.tiff RESOLUTION
RE: APPROVE THREE SETTLEMENT AGREEMENTS AND RELEASE OF ALL CLAIMS
AND AUTHORIZE CHAIR TO SIGN -WYMER
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 three Settlement Agreements and
Release of All Claims concerning the OCM litigation between the County of Weld, State of
Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the
entities as follows:
City of Holtville
Bellco Federal Credit Union
Colorado State Employees Credit Union
WHEREAS, after review, the Board deems it advisable to approve said agreements,
copies of which are attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the three Settlement Agreements and Release of All Claims between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld
County, and the above-listed entities be, and hereby are, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreements.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 29th day of July, A.D., 1998.
BOARD OF COUNTY COMMISSIONERS
WE COUNTY, COLORADO
ATTEST: 4.41
Constance L. Harbert, Chair
Weld County Clerk to B +, ° p�,♦ //tat?
)„ ,9
O�g� W. H. Webster, Pro-Tem
BY:
Deputy Clerk to the v EXCUSED DATE OF SIGNING (AYE)
eorge E. Baxter
AppR6G A FORM:
Dale K. Hall
ounty Att ney EXCUSED DATE OF SIGNING (AYE)
Barbara J. Kirkmeyer
981310
�4 Fly 7/) CA0008
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 Bellco Federal Credit Union, 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 Advisor"
Program. et al . (hereinafter "The Litigation" ) .
1 . 2 Subject to the terms and conditions of this
Agreement , Bellco Federal Credit Union 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 RgLEASE AND COVENANTS
2 . 1 For and in consideration of Thirteen Thousand
Dollars ($13 , 000 . 00) , receipt of wnich is hereby acknowledged,
Releasors hereby release, discharge and acquit Bellco Federal
Credit Union, 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 Attorneys for Releasors hereby agree to execute a
dismissal with prejudice of Bellco Federal Credit Union from the
complaint described in paragraph 1 . 1 and forward said dismissal
to the counsel for Bellco Federal Credit Union.
2 . 3 In return for the promises contained herein, and
for other good and valuable consideration, receipt of which is
hereby acknowledged, Bellco Federal Credit Union hereby releases,
discharges and acquits Releasors, their subsidiaries, and each of
their past, present and future directors, elected and appointed
officials, agents, insurers , reinsurers, servants , employees,
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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 Bellco Federal Credit Union 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 41542
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 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
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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 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 an
admission of liability by any party hereto .
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
98:1351201.661 4
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 Bellco Federal Credit Union 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 .
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
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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, as between these
parties, 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 MI4CN.CLAMP..a
8 . 1 The parties hereto agree and covenant not to
institute any lawsuit against the other which is based on any
claims released or resolved by this Agreement or which is in
derogation of this Agreement .
8 . 2 The par::les hereto, and each of them, represent
and warrant that 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 .
8 . 3 No party has made any statement, representation,
or promise, other than as set forth herein, to any other party in
9s:nsumsai
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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 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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gyi3ic
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 .
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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 TTIE 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: , 1998
Authorized Representative of the
CITY OF ORANGE
DATED: , 1998
Authorized Representative of the
CITY OF BIG BEAR LAKE
DATED: , 1998
Authorized Representative of the
CITY OF INDIO
DATED: , 1998
Authorized Representative of the
CITY OF PALM DESERT
DATED: , 1998
Authorized Representative of the
PALM DESERT REDEVELOPMENT AGENCY
9e:nsuo1ss1
10
9ssl,� i a
DATED: , 1998
Authorized Representative of the
CITY OF TORRANCE
DATED: , 1998
Authorized Representative of the
CITY OF LA QUINTA
DATED: , 1998
Authorized Representative of the
LA QUINTA REDEVELOPMENT AGENCY
DATED: , 1998
Authorized Representative of the
CITY OF LOMA LINDA
DATED: �.__, 1998 --
- Authorized Representative of the
LOMA LINDA REDEVELOPMENT AGENCY
DATED: , 1998
Authorized Representative of the
COACHELLA VALLEY JOINT POWERS
INSURANCE AUTHORITY
DATED: , 1998
Authorized Representative of the
CITY OF SANGER
DATED: , 1998
Authorized Representative of the
SANGER REDEVELOPMENT AGENCY
DATED: , 1998uthorized Representative of the
FRANCIS M. LOUSTALET, AS TREASURER
FOR WELD COUNTY AND BOARD OF COUNTY
COMMISSIONERS OF WELD COUNTY (07/29/98)
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T
FOR DEFENDANT
Bellco Federal Credit Union
DATED: , 1998
Authorized Representative of
Bellco Federal Credit Union
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HOWARTH 8 SMITH
ATTORNEYS AT LAW
700 SOUTH FLOWER STREET
SUITE 2900
LOS ANGELES,CALIFORNIA 90017
TELEPHONE:(213)955-9400
FAX:(213)622-0791
AREZOU KOHAN
July 21, 1998
CONFIDENTIAL - ATTORNEY WORK PRODUCT
ATTORNEY - CLIENT COMMUNICATION
Ms . Saundra Juhola Patrick Sullivan, Esq.
Mr . Thomas P . Genovese City Attorney
City of La Quinta City of Torrance
La Quinta Redevelopment Agency 3031 Torrance Boulevard
78-495 Calle Tampico Torrance, CA 90503
La Quinta, CA 92253
Mr . David Culver Mr . Russ Carlsen
City of Indio City of Big Bear Lake
100 Civic Center Mall P .O. Box 10000
Post Office Box 1788 39707 Big Bear Lake Boulevard
Indio, CA 92202 Big Bear Lake, CA 92315
Mr . Scott Ellerbrock Jim Lough, Esq.
General Manager City Attorney
Coachella Valley Joint City of Sanger
Powers Authority Sanger Redevelopment Agency
77-670 Springfield Lane 1700 17th Street
Suite lA Sanger, CA 93657-2898
Palm Desert, CA 92211
Richard Holdaway, Esq. Mr . Ramon Diaz
City Attorney Mr. Paul Gibson
City of Loma Linda City of Palm Desert
Loma Linda Redevelopment Agency Palm Desert Redevelopment Agency
11800 Central Avenue, #125 73-510 Fred Waring Drive
Chino, CA 91710 Palm Desert, CA 92261
Wayne Winthers, Esq. Mr . Don Warden
City Attorney Board of County Commissioners
City of Orange Weld County
Orange Civic Center 915 10th Street
300 East Chapman Avenue Greeley, CO 80631
Orange, CA 92261
Re : OCM Litigation - City of Orange et al . v.
Alabama Treasury Advisory Program, et al .
Los Angeles Superior Court Case No . BC 106 461
98:L2847201,561
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OCM Litigation
July 21, 1998
Page 2
Dear Clients :
Enclosed please find settlement agreements for the
recent settlements with Bellco, Holtville, and Colorado State
Employees Credit Union, as per Don Howarth' s letter of
July 15, 1998 . Please sign these in the appropriate places, and
return them to us .
Thank you for your assistance in this matter .
Very truly yours,
v
Arezou Kohan
AK/ls
Enclosures
98:L2847201.561
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HOWARTH 8 SMITH
ATTORNEYS AT LAW RANDALL BOESE
DON HOWARTH 700 SOUTH FLOWER STREET MEREDITH M.MYERS
DAVID K I SMITH SUITE 2900 SHERI L.MARVIN
DAVID K.RINGWOOD AREZOU KOHAN
BRIAN D.BUBB LOS ANGELES,CALIFORNIA 90017
TELEPHONE:(213)955-9400 OF COUNSEL
THOMAS F.
VANDENBURG LEY KENNETH S.TUNE
KAOMAS FAX'.(213)622-0791 ROBERT D.BRAIN
SKATYHEILA
BS RISE J.JOHNSON
SHEILA A M M..BRADLEY July 2 2, 19 9 8
ATTORNEY - CLIENT COMMUNICATION
VIA FACSIMILE AND FIRST CLASS MAIL
Ms . Saundra Juhola Patrick Sullivan, Esq.
Mr. Thomas P. Genovese City Attorney
City of La Quinta City of Torrance
La Quinta Redevelopment Agency 3031 Torrance Boulevard
78-495 Calle Tampico Torrance, CA 90503
La Quinta, CA 92253
Mr. David Culver Mr. Russ Carlson
City of Indio City of Big Bear Lake
100 Civic Center Mall P.O. Box 10000
Post Office Box 1788 39707 Big Bear Lake Boulevard
Indio, CA 92202 Big Bear Lake, CA 92315
Mr. Scott Ellerbrock Jim Lough, Esq.
General Manager City Attorney
Coachella Valley Joint City of Sanger
Powers Authority Sanger Redevelopment Agency
77-670 Springfield Lane 1700 17th Street
Suite 1A Sanger, CA 93657-2898
Palm Desert, CA 92211
Richard Holdaway, Esq. Mr. Ramon Diaz
City Attorney Mr. Paul Gibson
City of Loma Linda City of Palm Desert
Loma Linda Redevelopment Agency Palm Desert Redevelopment Agency
11800 Central Avenue, #125 73-510 Fred Waring Drive
Chino, CA 91710 Palm Desert, CA 92261
Wayne Winthers, Esq. Mr. Don Warden
City Attorney Board of County Commissioners
City of Orange Weld County
Orange Civic Center 915 10th Street
300 East Chapman Avenue Greeley, CO 80631
Orange, CA 92261
Re : OCM Litigation - City of Orange et al . v.
Alabama Treasury Advisory Program, et al .
J,nS AngelPS Superior Curt Case No. RC 106 461
98:L1919001.565
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0CM Litigation
July 22 , 1998
Page 2
Dear Clients:
As you know, we were before Judge Lewin yesterday for
the hearing on the motion by defendants relating to attorney
invoices in other litigation. After argument, the judge stated
the following on this motion:
1) Judge Lewin will make no decision is advance as to
whether defendants get an off-set for other recoveries, or
whether these are entitled to collateral source treatment (my
sense is he is inclined to give defendants an offset, but that
issue is for another day) ;
2) If he allows an off-set for other recoveries he is
very likes.y to gi"? a credit for the attorney fees incurred in
pursuing such monies . He appears to understand the concept that
if the defense gets any off-set it is to be net of reasonable
costs in achieving the off-set . He has not ruled on this yet,
but is firmly inclined this way.
3) Judge Lewin understands and accepts the privileges
(attorney client and work product) as to attorney invoices . He
will require a protective order for any such documents produced.
He directed us to send a proposed order to the other side and
will allow the parties to be heard as to any disputes on the
wording of the order. We will send you our proposed order
tomorrow.
4) Judge Lewin will not require any plaintiff who
chooses not to do so, to produce or make available such attorney
invoices from other litigation. For any invoices not produced or
made available within thirty (30) days of the hearing (August 21)
he will preclude any credit for the fees covered by non-produced
invoices against any recovery off-sets he ultimately permits .
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OCM Litigation
July 22 , 1998
Page 3
In accordance with this ruling, each of you needs to
provide to us the materials or give us the information as to
where such invoices are available for inspection in time to
advise defendants on or before August 21 . In the meantime, we
will send you our proposed protective order as indicated above .
Very4,ruly yours,
Don Howarth
DH\dbs
cc : Clients ' Counsel
Suzelle M. Smith, Fsq.
98:L1919001.565
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