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Home My WebLink About971053.tiffRESOLUTION RE: APPROVE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS WITH COUNTY OF MOBILE, ALABAMA, AND AUTHORIZE CHAIR TO SIGN - OCM LITIGATION 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, regarding 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 Francis M. Loustalet, as Treasurer for Weld County, and the County of Mobile, Alabama, 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, regarding 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 Francis M. Loustalet, as Treasurer for Weld County, and the County of Mobile, Alabama, 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 2nd day of June, A.D., 1997. ATTEST: Weld Count BY. eputy Cle k o t e =oard 971053 BOARD OF COUNTY COMMISSIONERS WELD QOUNTY, COLO DO /mss eorge 1= Baxter, Chair Dal K. Hall //4.Barbara J. Kirkmeyer 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 County of Mobile, Alabama, 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, County of Mobile, Alabama 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. reklistanal 1 971053 2.0 RELEASE ADD COVENANTS 2.1 For and in consideration of Five Thousand Dollars ($5,000.00), receipt of which is hereby acknowledged, Releasors hereby release, discharge and acquit County of Mobile, Alabama, 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 in`di ectly, 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 County of Mobile, Alabama from the complaint described in paragraph 1.1 and forward said dismissal to counsel for County of Mobile, Alabama. 2.3 In return for the promises contained herein, and for other good and valuable consideration, receipt of which is hereby acknowledged, County of Mobile, Alabama hereby releases, discharges and acquits Releasors, their subsidiaries, and each of their past, present and future directors, elected and appointed ..i.....a.i 2 971053 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 County of Mobile, Alabama 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 §1542 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. /// r.le....m.l 3 971053 3.2 The parties hereto and each of them being aware of said code section hereby expressly waive any and all rights that they say have thereunder. The parties understand and acknowledge that the significance and the consequence of this specific waiver of California Civil Code 41542 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 relesseaM 4 971053 ..w..a.i 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 County of Mobile, Alabama 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. 5 971053 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, 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; b. The parties hereto and each of them, have not assigned any right, title or interest in reWre.nel 6 971053 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 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 parties 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 r4nn.m.l 7 971053 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, representations, or understandings of the parties. No / / / reldee.m.I 8 971053 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: , 1997 DATED: , 1997 DATED: , 1997 DATED: , 1997 Sn.am.l Authorized Representative of the CITY OF ORANGE Authorized Representative of the CITY OF BIG BEAR LAKE Authorized Representative of the CITY OF INDIO Authorized Representative of the CITY OF PALM DESERT 9 971053 DATED: , 1997 DATED: , 1997 DATED: , 1997 DATED: , 1997 DATED: , 1997 DATED: , 1997 DATED: , 1997 DATED: , 1997 DATED: , 1997 relesseaml Authorized Representative of the PALM DESERT REDEVELOPMENT AGENCY Authorized Representative of the CITY OF TORRANCE Authorized Representative of the CITY OF LA QUINTA Authorized Representative of the LA QUINTA REDEVELOPMENT AGENCY Authorized Representative of the CITY OF LOMA LINDA Authorized Representative of the LOMA LINDA REDEVELOPMENT AGENCY Authorized Representative of the COACHELLA VALLEY JOINT POWERS INSURANCE AUTHORITY Authorized Representative of the CITY OF SANGER Authorized Representative of the SANGER REDEVELOPMENT AGENCY 10 9'710531 DATED: /na or. zed Representative of the CIS M. LOUSTALET, AS TREASURER LD COUNTY AND BOARD OF COUNTY ISSIONERS OF WELD COUNTY APPROVED AS TO FORK AND CONTENT: HOWARTH & SMITH DATED: , 1997 By: Don Howarth reinatmal 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 11 971053 FOR DEFENDANT County of Mobile, Alabama DATED: , 1997 Authorized Representative of County of Mobile, Alabama APPROVED AS TO FORM AND CONTENT: GALLOWAY, SMITH, WETTERMARK & EVEREST DATED: , 1997 Traci Turner, Esq. Attorney for Defendant County of Mobile, Alabama rNnn.mal 12 KENNETH .5. TUNE HOWARTH 8 SMITH ATTORNEYS AT LAW 700 SOUTH FLOWER STREET SUITE 2900 LOS ANGELES, CALIFORNIA 90017 TELEPHONE: (213) 955-9400 FAX: (213) 622-0791 May 8, 1997 CONFIDENTIAL - ATTORNEY WORK PRODUCT ATTORNEY -CLIENT COMMUNICATION Michael L. Willoughby, Esq. Borchard & Willoughby 18881 Von Karman Avenue Suite 1400 Irvine, CA 92715 D. Martin Nethery, Esq. Best, Best & Krieger 39700 Bob Hope Drive Suite 312 Rancho Mirage, CA 92270 Dolores M. Donohoe, Esq. Gibbons, Lees & Conley 1850 Mt. Diablo Boulevard Suite 200 Walnut Creek, CA 94596 Re: OCM Litigation Dear Counsel: CI `TO - Richard C. Goodman, Esq John F. Cannon, Esq. Stradling, Yocca, Carlson & Rauth 660 Newport Center Dr., Suite 1600 Irvine, CA 92660 Randall Nakashima, Esq. Law Offices of R. Zaiden Corrado 850 East Chapman Avenue Suite C Orange, CA 92666 Allyn Waggle, City Manager City of Indio 100 Civic Center Mall, Post Office Box 1788 Indio, CA 92202 Enclosed is a copy of the settlement agreement with Mobile County, Alabama, which was recently approved and executed by this defendant. Please forward this document to your respective clients, to be executed and returned by them to Howarth & Smith by Friday, May 16, 1997. We greatly appreciate your continued cooperation and courteous professionalism in this matter. Please do not hesitate to call me or my associate, Katy Jacobs, with any questions or concerns you may have. Very truly yours, Kenneth S. Tune KST:ja Enclosure cc: Don Howarth, Esq. (w/out encls.) Katy Jacobs, Esq. (w/out encls.) 9,:L1457KST.611 971053 ,111,;),t, Hello