HomeMy WebLinkAbout980414.tiff RESOLUTION
RE: APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE FOR BANTCO
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 a Settlement Agreement and Mutual
Release concerning the Steven D. Wymer litigation among the County of Weld, State of
Colorado, Board of County Commissioners, Francis M. Loustalet, as Treasurer of Weld County,
and Bank of America N.T. and S.A., formerly Security Pacific National Trust Company (New
York), with 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 Release concerning the
Steven D. Wymer litigation among the County of Weld, State of Colorado, Board of County
Commissioners, Francis M. Loustalet, as Treasurer of Weld County, and Bank of America N.T.
and S.A., formerly Security Pacific National Trust Company (New York), be, and hereby is,
approved.
BE IT FURTHER RESOLVED by the Board that the Chair 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 9th day of March, A.D., 1998.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: tl�F s„ ��t»�/ir���v
.7' ', Constance L. Harbert Chair
Weld County r ienf
<Q..13,>/
• : W. H. Lerk
BY:
Deputy Clergy► � , �.►r
E. Baxter
Al)IDRO7ED AS T RM:
( C Dale K. Ha
ty Attor eyi4 j _ 71_, eA._
arbara J. Kirkmeyer
980414
CA0008
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
l M!TtO LIAO un PARTNcn9gie INcwoiryc..occssIo.AL Co».o.,t,css
ATTORNEYS AT LAW
FORTY-EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 900]1-1449
WRITER'S DIRECT LINE TELEPHO
NE 1213) 620-1780
OUR FILE NUMSER
(213) 617-4116 FACSIMILE 12131 620-1399
BN3-49070
February 20, 1998
Michael L. Willoughby, Esquire
Borchard & Willoughby, P.C.
18881 Von Karman Avenue, Suite 1400
Irvine, California 92612
Re: Settlement Between Weld Coun and BANTCO
Dear Mike:
Pursuant to our recent discussions, I am enclosing three copies of a
proposed Settlement Agreement and Mutual Release and two copies of Stipulation for
Dismissal of Action With Prejudice and Without Costs and Order Thereon. These
documents are patterned exactly after the settlement docurr -its which we recently
entered into with the City of Palm Desert and Palm Desert Redevelopment Agency.
Please note that the party entering into the Settlement Agreement will be
Bank of America N.T. & S.A., a national banking association, successor by merger to
BankAmerica National Trust Company, formerly Security Pacific National Trust
Company (New York). BankAmerica National Trust Company was recently merged
into Bank of America N.T. & S.A. and, accordingly, the Settlement Agreement will
have to be signed by the now existing entity.
Although paragraph 3.1 of the Settlement Agreement refers to a possible
motion to be filed by BANTCO to approve this settlement as a good faith settlement, it
is likely that this motion will not have to be made if we arrive at an appropriate
agreement with the Refco entities. I should know this within the next week or two.
If you find the enclosed documents in order, please forward them on to
your clients in Colorado to obtain their final approval. If they approve of the
settlement, please have your clients sign and return to me two fully-executed copies of
LOS ANGELES • ORANGE COUNTY ■ SAN DIEGO • SAN FRANCISCO
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Michael L. Willoughby, Esquire
February 20, 1998
Page 2
the Settlement Agreement and Mutual Release and have them fill in the date they sign
the Agreement in.the space indicated on page 6. You should also sign the two
execution copies on page 8 to indicate your approval as to form and content.
I would also appreciate your signing and returning to me two executed
copies of the Stipulation for Dismissal of Action, which I will hold until the Settlement
Agreement has been signed by all parties and the $100,000 has been transmitted and
received by your clients.
You should also provide me with the necessary written instructions to
effectuate the transfer of the settlement funds pursuant to paragraph 3.2 of the
Settlement Agreement.
If you have any questions regarding the enclosed documents, please call
me right away.
Thank you for your continued cooperation.
Sincerely
yo
Paul M. Reitler
Professional Corporation
for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
PMR:mnc
Enclosures
LA2:LA,MLETIBN3\11101732.1
cc: John C. Fauvre, Esq. (w/Encls.)
980 Y/tJ
BORCHARD & WILLOUGHBY
ATTORNEYS AT LAW
A PROFESSIONAL CORPORATION
February 25, 1998
163
t,.
Lee Morrison, Esq. 12702
1997
915 Tenth Street 'ELD Cot INTy
Greeley, Colorado 80631 oR" NEY
Re: BANTCO SETTLEMENT
Dear Lee:
Enclosed are three copies of a proposed settlement agreement for the
BANTCO settlement. Please have the agreement approved and executed as soon as
possible. Reitler has asked that Mike and the County execute two of the copies to be
forwarded to him, and that the date on page six be filled in when the agreement is
signed.
In the meantime, please send me the County's current wire instructions
for the settlement funds.
Of course, please call if you have questions.
Best regards.
Sincerely,
Michael L. Willoughby
for BORCHARD & WILLOUGHBY, P.C.
MLW:kl
Enclosures
cc: Daniel M. Harkins, Esq. (w/enc.)
18881 Von Korman Avenue, Suite 1400, Irvine, California 92715 • (714) 644-6161 • Telefax (714) 263-1913
. .. ..... _..
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
1. PARTIES: The parties to this Settlement Agreement and Mutual Release
("Agreement") are FRANCIS M. LOUSTALET, an individual, as Treasurer of Weld
County, Colorado, and BOARD OF COUNTY COMMISSIONERS OF WELD
COUNTY, COLORADO (collectively "WELD COUNTY"); and BANK OF
AMERICA N.T. & S.A., a national banking association, successor by merger to
BankAmerica National Trust Company, formerly Security Pacific National Trust
Company (New York) ("BANTCO").
2. RECITALS: This Agreement is made with reference to the following
facts:
2.1 In December, 1992, WELD COUNTY commenced an action
against various defendants, including BANTCO, entitled Francis M. Loustalet, etc. v.
Refco Inc., et al. in the United States District Court for the Central District of
California (the "Court"), Case No. CV-92-7628 RIK. This action is referred to herein
as the "Lawsuit".
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021998 -1-
2.2 In the Lawsuit, WELD COUNTY claimed that BANTCO was
liable to WELD COUNTY on a number of theories, including aiding and abetting
breach of fiduciary duty and negligence, in connection with WELD COUNTY's loss of
funds invested through Steven Wymer and his companies.
2.3 BANTCO has consistently denied that it is liable for any and/or
all of these claims.
2.4 Without any party admitting the truth of any allegations or
contentions made by any other party concerning the Lawsuit, it is the intention of the
parties to this Agreement to settle and dispose of, fully and completely, any and all
claims, demands, and causes of action in any way arising out of, connected with or
incidental to those claims, demands and causes of action reflected in the Lawsuit.
3. AGREEMENT: In consideration of the promises and agreements
contained herein, and for other good and valuable consideration, the parties hereto
agree as follows:
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021998
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3.1 WELD COUNTY agrees that it will support a motion which may
be filed by BANTCO to approve this settlement as a good faith settlement. The
bringing of such a motion, the granting of such motion by the Court, and the entry by
the Court of an Order approving the settlement as a good faith settlement are express
conditions precedent to the effectiveness of this Agreement, unless BANTCO waives
these conditions in writing.
3.2 Within a reasonable period of time after satisfaction of all of the
conditions precedent as defined in Section 3.1, WELD COUNTY and BANTCO,
through their respective attorneys, shall execute the Stipulation for Dismissal of Action
in the form attached hereto as Exhibit "A", and BANTCO shall remit to WELD
COUNTY by check or wire transfer the sum of One Hundred Thousand Dollars
($100,000.00), pursuant to written instructions from WELD COUNTY's counsel. The
allocation of this $100,000.00 between Francis M. Loustalet and Board of County
Commissioners of Weld County, Colorado is a matter between those two entities and
of no concern to BANTCO.
3.3 Pursuant to said Stipulation for Dismissal of Action, the Lawsuit
will be dismissed with prejudice as against BANTCO, pursuant to Federal Rule of
Civil Procedure 41(a)(1), with each party to bear its own attorneys' fees and costs
incurred in the Lawsuit.
LA2.LAMAGR\BN3\l 1101241.I
021998 _3_
3.4 Except for such rights, duties and obligations as are established by
this Agreement, each party hereto, on behalf of themselves and their respective
predecessors, successors, assigns, employees, agents, attorneys, representatives,
affiliates, officers, directors and shareholders, and each of them, do hereby release and
forever discharge each other of and from any and all claims, demands, losses, damages,
actions, causes of action, costs, expenses and attorneys' fees of any nature whatever,
heretofore or hereafter arising out of, connected with, or incidental to the claims
asserted in the Lawsuit. This is a special release, and each party hereto acknowledges
and agrees that this release is expressly limited to the claims asserted in, or incidental
to the claims asserted in, the Lawsuit and does not include any other claim of any kind.
4. MISCELLANEOUS:
4.1 This Agreement shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of the parties
hereto shall be construed and enforced in accordance with, and governed by, the laws
of the State of California.
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9goyr/
4.2 This Agreement, together with the attached Stipulation for
Dismissal of Action, is the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and written
agreements and discussions. This Agreement may be amended only by an agreement
in writing signed by all of the parties hereto, and shall not be amended by an oral
agreement.
4.3 This Agreement effects the settlement of claims that are denied
and contested, and nothing contained herein shall be construed as an admission by any
party hereto of any liability of any kind to any other party or any other matter. Each of
the parties hereto deny any liability in connection with the Lawsuit and intends merely
to avoid the expense of protracted litigation.
4.4 This Agreement is binding upon and shall inure to the benefit of
the parties hereto, their respective agents, employees, representatives, officers,
directors, divisions, subdivisions, affiliates, assigns, predecessors in interest,
successors in interest, and shareholders.
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4.5 Each party hereto has cooperated in the drafting and preparation
of this Agreement. Hence, in any construction to be made of this Agreement, the same
shall not be construed against any party hereto.
4.6 In the event of litigation relating to this Agreement, the prevailing
party shall be entitled to recover its reasonable attorneys' fees.
4.7 This Agreement may be executed in counterparts, and when each
party has signed and delivered at least one such counterpart, each counterpart shall be
deemed an original, and, when taken together with the other signed counterparts, shall
constitute one Agreement, which shall be binding upon and effective as to all parties.
4.8 This Agreement is made and entered into as of MARCH 1 ,
1998. The-Agreement will be effective as of the date of the entry by the Court of the
Order approving this settlement as a good faith settlement, unless this condition
precedent is waived by BANTCO in writing. hi the event that BANTCO waives the
requirement of a good faith settlement hearing, this Agreement will be effective when
it has been signed by all parties.
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4.9 The parties' representative signatories below each represents and
warrants that he or she has the authority to bind his or her respective principal to this
Agreement.
FRANCIS M. LOUSTALET,-an individual,
as Treasurer of Weld County, Colorado
By:
Print name:
Title:
BOARD OF COUNTY COMMISSIONERS
OF WELD COUNTY, COLORADO
By:
Print name:
Title:
BANK OF AME CA N.T. & S.A., a national
banking associat on (successor by merger to
:: th
Na '01Trust)Company)
:
Print name: f0,(31.727- L,F.-M05
Title: aavT1VI V l�
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4.9 The parties' representative signatories below each represents and
warrants that he or she has the authority to bind his or her respective principal to this
Agreement.
FRANCIS M. LOUSTALET,-an individual,
as Treas of Weld County, olorado
Arthur L. Willis II
Prmtname: Successor to Francis M. Loustalet
Title: Weld County Treasurer
Please see attached oath.
BOARD OF COUNTY COMMISSIONERS
OF WELD COUNTY, COLORADO
By
Print name: Constance L. Harbert (03/09/98)
Title: Chair
BANK OF AMERICA N.T. & S.A., a national
banking association (successor by merger to
BankAmerica National Trust Company)
By:
Print name:
Title:
LA2:LANMGR\BN3\11101241.1
021998 -7-
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IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF WELD AND STATE OF COLORADO
95 CV 1
OATH
I , ARTHUR L. WILLIS, II , DO SOLEMNLY SWEAR THAT I WILL
SUPPORT THE CONSTITUTION OF THE UNITED STATES; THE CONSTITUTION OF THE
STATE OF COLORADO; THE HOME RULE CHARTER FOR WELD COUNTY, COLORADO; AND
THE ORDINANCES OF WELD COUNTY , COLORADO, AND THAT I WILL FAITHFULLY
PERFORM THE DUTIES OF THE OFFICE OF TREASURER, OF THE COUNTY OF WELD,
STATE OF COLORADO.
SUBSCRIBED AND SWORN TO BEFORE ME THIS THIRD DAY OF
JANUARY, A.D. , 1995.
f�
)�i`t' 4/..•
) I EF JUDGE
NINETEENTH JUDICIAL DISTRICT
STATE OF COLORADO
950125
APPROVED AS TO FORM AND CONTENT:
BORCHARD & WILLOUGHBY P C
By:
MICHAEL L. WILLOUGHBY
Attorneys for
FRANCIS M. LOUSTALET and
BOARD OF COUNTY COMMISSIONERS
OF WELD COUNTY, COLORADO
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Jt�
By: elk
PAUL M. REITLER
Professional Corporation
Attorneys for
BANK OF AMERICA N.T.& S.A.
L A2:L AM\AG R\B193\11101241.1
021998 -8-
1 PAUL M. REITLER, CAL. BAR NO. 35165
JAMES L. SANDERS, CAL. BAR NO. 126291
2 BEVERLY A. JOHNSON, CAL. BAR NO. 167335
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
3 A Limited Liability Partnership
Including Professional Corporations
4 333 South Hope Street, 48th Floor
Los Angeles, California 90071
5 Telephone: (213) 620-1780
6 JOHN C. FAUVRE, CAL. BAR NO. 50482
ULLAR VITSUT, CAL. BAR NO. 33690
7 JAMES ROETHE, CAL. BAR NO. 41731
OFFICE OF GENERAL COUNSEL
8 BANK OF AMERICA N.T. & S.A.
555 South Flower Street, Suite 800
9 Los Angeles, California 90017-2398
Telephone: (213) 228-3515
10
Attorneys for Defendant
11 BANKAMERICA NATIONAL TRUST COMPANY
12
13 UNITED STATES DISTRICT COURT
14 CENTRAL DISTRICT OF CALIFORNIA
15
16 CITY OF SANGER, et al., Case Nos. CV-92-7284 RJK, CV-92-7294
RJK, CV-92-7626 RJK, CV-92-7628 RJK,
17 Plaintiffs, CV-92-7630 RJK, CV-92-7631 RJK,
CV-92-7632 RJK, CV-92-7633 RJK,
18 v. CV-93-0056 RJK, CV-93-0057 RJK
19 REFCO GROUP, LTD., et al., (1) STIPULATION FOR
DISMISSAL OF ACTION WITH
20 Defendants. PREJUDICE AND WITHOUT
COSTS (Federal Rule of Civil
21 Procedure 41(a)(1)); and
AND CONSOLIDATED ACTIONS.
22 (2) ORDER THEREON
23 (Case No. CV-92-7628 RJK)
24
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LA2 LAM\PI D\I3N3\11101250.1 EXHIBIT STIPULATION FOR
DISMISSAL AND ORDER
1 WHEREAS, Francis M. Loustalet, an individual, as Treasurer of Weld County,
2 Colorado, and Board of County Commissioners of Weld County, Colorado (collectively
3 "WELD COUNTY") and Bank of America N.T. & S.A., a national banking association,
4 successor by merger to BankAmerica National Trust Company, formerly Security Pacific
5 National Trust Company (New York) ("BANTCO") have entered into a Settlement
6 Agreement and Mutual Release as of , 1998.
7
8 WHEREAS, that Settlement Agreement provides that WELD COUNTY's
9 claims against BANTCO shall be dismissed with prejudice and with each party to bear its
10 own costs and attorneys' fees;
11
12 IT IS HEREBY STIPULATED by and between WELD COUNTY and
13 BANTCO, through their respective counsel, that WELD COUNTY's Second Amended
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LA2:LAM\PLD\BN3\11101250.1 STIPULATION FOR
-2- DISMISSAL AND ORDER
1 Complaint shall be dismissed with prejudice as to BANTCO, with each party to bear its own
2 costs and attorneys' fees.
3 Dated: , 1998
4
BORCHARD & WILLOUGHBY PC
5
6
By:
7 MICHAEL L. WILLOUGHBY
8 Attorneys for Plaintiffs
FRANCIS M. LOUSTALET and
9 BOARD OF COUNTY COMMISSIONERS OF
WELD COUNTY, COLORADO
10
11 Dated: , 1998
12
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
13
14
15 By:
PAUL M. REITLER
Professional Corporation
16
Attorneys for Defendant
17 BANKAMERICA NATIONAL TRUST COMPANY
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LA2:LAMV'LD'RN)\11101250.1 STIPULATION FOR
-3- DISMISSAL AND ORDER
II
1 ORDER
2
3 Pursuant to the foregoing Stipulation,
4
5 IT IS HEREBY ORDERED that the Second Amended Complaint is hereby
6 dismissed as against BANTCO with prejudice, with each side to bear its own costs and
7 attorneys' fees.
8
9 Dated: , 1998
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11
ROBERT J. KELLEHER
12 Senior United States District Judge
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LA2:LAMPPLD\DN3\11101250.1 STIPULATION FOR
-4- DISMISSAL AND ORDER
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