HomeMy WebLinkAbout960985.tiff RESOLUTION
RE: APPROVE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS WITH CITY
OF COLTON, CALIFORNIA, 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, and the City of Colton, California, 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 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 City of Colton, California, 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 3rd day of June, A.D., 1996.
BOARD OF COUNTY COMMISSIONERS
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.0° /�����vtac1^ Barbara J. Kirkmeyer, Chair
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E. Baxter, Pro em
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Dale K. Hall
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960985
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CONFIDENTIAL 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 City of Colton, 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, the City of Colton 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 a mutual waiver of
costs receipt of which is hereby acknowledged, Releasors hereby
release, discharge and acquit the City of Colton, 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 expect 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 . 1 Don Howarth, attorney for Releasors, hereby agrees
to execute a dismissal with prejudice of the City of Colton 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 the City of Colton.
2 . 3 In return for the promises contained herein, and
for other good and valuable consideration, receipt of which is
hereby acknowledged, the City of Colton hereby releases,
discharges and acquits Releasors, their subsidiaries, and each of
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their past, present and future directors, elected and appointed
officials, agents, insurers, reinsurers, servants, employees,
attorneys, financial advisors and accountants, including but not
limited to D. Richard Byrne and Thomas, Bigbie and Smith, an
Accountancy Corporation, and its predecessors, successors and
related companies, and all of their past, present and future
officers, directors, shareholders, partners, principals,
employees, agents, attorneys, insurers, assigns and
representatives (collectively "TBS") , 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 the City of Colton 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, including, but not limited to, any Claims the City of
Colton has or may have against D. Richard Byrne and/or TBS, which
are based upon, arise out of or in any manner, indirectly or
directly, which are connected with or relate to any and all acts,
conduct or omissions of Steven Wymer.
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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
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
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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.
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 the City of Colton 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
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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
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
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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;
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.
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8. 0 MISCELLANEOUS
8 . 1 The parties hereto 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.
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.
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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 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. 7 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 .8 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
supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all of the parties.
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8 .9 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
DATED: , 1996
Authorized Representative of the
CITY OF PALM DESERT
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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
DATED: , 1996
Authorized Representative of the
CITY OF SANGER
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DATED: , 1996
Authorized Representative of the
SANGER REDEVELOPMENT AGENCY
/n
DATED: m t , =�b%E ' b - .' Lit-)
orized Re•rese ( ative of the
i CIS M. LOUSTALET, AS TREASURER
QII% 0• ELD COUNTY AND BOARD OF COUNTY
'ss' ddd„O i ,u SSIONERS OF WELD COUNTY
iy D�� `I
APPROVED AS TO FORM AND CONTENT:
HOWARTH & SMITH
DATED: ---- .5_1_, 1996 By: ,/ "Ur '®J_K
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
FOR ENDANT CI OF COLTON
DATED: Fits. Hg , 1996 CZ/
ut orized Represent 've of the
CITY OF COLTON
9 RIB08.141 12
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APPROVED AS TO FORM AND CONTENT:
MEYERS, NAVE, RIBACK,
SILVER & WILSON
DATED: fee. pf , 1996 +r
Clif o F. ampbell
Att neys for Defendant
CITY OF COLTON
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HOWARTH & SMITH -
ATTORNEYS AT LAW
700 SOUTH FLOWER STREET
SUITE 2900
LOS ANGELES,CALIFORNIA 90017
TELEPHONE:(213)955-9400
FAX:(213)622-0791
DON HOWARTH
March 28, 1995
John F. Cannon, Esq.
Stradling, Yocca, Carlson & Rauth
660 Newport Center Drive
Suite 1600
Irvine, California 92660
Re: OCM Litigation
Dear John:
We were pleased to hear of your $2 . 3 million settlement with the
Thomas firm. Based on our conversation, we understand that the
settlement among the City Loma Linda, Loma Linda Redevelopment
Agency, the City of Big Bear, the City of Palm Desert, Palm Desert
Redevelopment Agency, Cochella Valley Joint Powers Insurance, and the
Thomas accounting firm requires that a release of the Thomas firm be
obtained from the Cities of Riverside and Colton. You believe that
the best vehicle for securing such a release is by concluding a
settlement in the above-referenced action which we are handling.
Consequently, you have asked that we try to reach a settlement which
is to include such a release of the Thomas firm with the City of
Colton and the City of Riverside.
We have already recommended and negotiated an offer, subject to
approval of the its City Council, from the City of Riverside in the
amount of $58,000. This is over the 25 percent of the total amount
claimed in the Second Amended Complaint. Therefore, as soon as we
have authorization from all clients we will accept this offer along
with the additional requirement of a release of the Thomas firm.
We will also open negotiations with the City of Colton and
attempt to secure a settlement offer at or above the 25 percent level
we have recommended with it as well. If we are not able to obtain
such a settlement and the clients agree to accept less, in order to
get a release of the Thomas firm by the City of Colton, we understand
that the above entities have agreed through you to make the other
plaintiffs whole in our case for any shortfall below 25% and to make
Howarth & Smith whole as to attorney fees that a settlement at the
25% level would generate.
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•
John F. Cannon, Esq.
March 28, 1995
Page 2
We need to clear up our understanding as to the percentages of
the total funds lost by our clients. At the time that we filed the
Complaint in this action, it was our understanding that defendants
received approximately $100 million in funds to which they were not
entitled; and that our clients collectively lost a total of $40
million, of which approximately $30 million was received by the
defendants in our litigation and the other $10 million was lost by
Wymer. We have used these figures in the Second Amended Complaint
and need to know what additional information that you have that
indicates that more money was lost by our clients. We used the $40
million as the total amount that was realistically recoverable under
a best-case scenario, and recommended that we be authorized to accept
any offer at half of the 40 percent, or 20 percent. We need to get
the information you have regarding your calculations of our clients'
losses and what amounts are now believed to have been wrongfully
diverted to defendants' accounts.
We need from each of our clients written authority for us to
settle with each defendant at the 25 percent level. Enclosed is a
form giving us this authority. We are also sending copies of this
letter and the enclosure to all other counsel who are our client
contacts. When we receive all signed authorizations we will be able
to proceed as we are able to obtain settlements from the defendants.
Very truly yours,
atr74411A
Don Howarth
DH:vz
Enclosure
cc: Dolores M. Donohoe, Esq.
Daniel M. Harkins, Esq.
D. Martin Nethery, Esq.
Mary Newcombe, Esq.
Michael L. Willoughby, Esq.
Suzelle M. Smith, Esq.
Kenneth S. Tune, Esq.
Brian D. Bubb, Esq.
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