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Home My WebLink About960984.tiff RESOLUTION RE: APPROVE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS WITH ALABAMA STATE DOCKS 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 Alabama State Docks, 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 Alabama State Docks 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 a►i"s,,„Its WELD COUNTY, COLORADO e,= ` i► /��/2 �� '!, FXCI1RFn nATF (�F SIPAIINr; (AYE) .a+iq . Barbara J. Kirkmeyer, C air •' '"c •[I ty Clerk to the Board - // 2-4 • /‘,‘"2/ A 1)11 / rge e Baxter, Pr -Te Deputy Cle ,S• the Board Dale K. Hall APP AS TO F Constance L. Har ert y Att rney . . ster 960984 eC: CA; Lai/Mu yhh y; ik ca000s 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 Alabama State Docks, 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 Alabama State Docks 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. 95:T23BDB.144 1 960984 2. 0 RELEASE AND 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 the Alabama State Docks, 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 asset 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 the Alabama State Docks 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 Alabama State Docks. 2 . 3 In return for the promises contained herein, and for other good and valuable consideration, receipt of which is hereby acknowledged, the Alabama State Docks hereby releases, 95:723BDB.144 2 960984 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 the Alabama State Docks 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 95:T23BDB.144 3 960984 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. 95:T23BDB.144 4 960984 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 Alabama State Docks 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. 95:723508.144 5 960984 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; 95:T23BDB.144 6 960984 • 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. / / 95: 23BDB.144 7 960954 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 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, 95:723BDB.144 8 960984 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 95:723BDB.144 9 960984 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 95:T13BDB.144 10 960984 DATED: , 1996 Authorized Representative of the CITY OF SANGER DATED: , 1996 Authorized Representative of the SANGER REDEVELOPMENT AGENCY DATED: � t horized R-presen,.ative of the CIS M. LOUSTALET, AS TREASURER lasl' crifpQ�bg� O WELD COUNTY AND BOARD OF COUNTY ZILP O ��ISSIONERS OF WELD COUNTY 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 95:T23BDB.144 11 960984 FOR DEFENDANT ALABAMA STATE DOCKS DATED: 3-(3 , 1996 Gc 71 //pad �a-c%e ( - Tiasleie/ -Aut i d Representativd of the Ala a State Docks APPROVED AS TO FORM AND CONTENT: PITTMAN, PITTMAN, CARWIE DATED: , 1996 Craig Pittman Attorneys for Defendant Alabama State Docks by J� "It 95:T23BDB.144 12 960984 itOFFICE OF THE COUNTY TREASURER If diptPHONE(303)3533845,EXT.3250 POST OFFICE SOX 458 GREELEY,COLORADO 806324458 ip . RECEIVED JUN 0 i 1995 COLORADO BY: May 26, 1995 Daniel Harkins,Esq. Harkins&lvlichelwan 2301 Dupont Drive,Suite 410 Irvine,CA 92715 RE: OCM Litigation Dear Mr.Harkins: • This letter will save as the authorization to proceed with the settlemcnt(s)in the above-referenced matter on behalf of Weld County,Colorado,as outlined in Howarth&Smith's letter of March 28, 1995. ve yydy yon, (;ha'. Arthur L. Willis,II Treasurer ALW/gb:harkins pc Lee D. Morrison • 960984 FIAgffiNS 8c MICRBLMAN ATTORNEYS AT LAY/ 2301 OuPONT ORIYC. Suite 410 IIIVIN EALEPOn.na SST= (INN 3531600 •aCSIMIVS bi. 003.1080 June 1, 1995 Via aesinrile 213.622-0791 and U.S.Mail Brian D.Bubb Howarth&Smith Attorneys at Law 700 South Flower Street Suite 2900 Los Angeles, CA 90017 Re: OCM Litigation Dear Brian: Per your request of May 24, 1995,enclosed please find a copy of Weld County's letter dated May 26, 1995,authorizing to proceed with the settlement(s)in the above icfclvisual matter. Please call if you have any questions. Very truly yours, HARKINS&MICHELMAN Daniel M. Harkins DMH:pjr Enclosure 960984 BORCHARD & WILLOUGHBY ATTORNEYS AT LAW A PROFESSIONAL CORPORATION �EC £�hV MAY 1 31996 11 May 9, 1996 ► WELD COUNTY ATFO&FEYI Wet Lee Morrison, Esq. Weld County 915 Tenth Street Greeley, Colorado 80631 Re: OCM Litigation Dear Lee: Enclosed for the County's execution are original settlement agreements in the above matter between plaintiffs and the Cities of Colton and Riverside (including additional signature pages). Also enclosed is a copy of Howarth & Smith's March 28, 1995, letter discussing these settlements and an authorization letter from Art Willis. The settlement amounts are $58,000 for Riverside and a mutual waiver of costs for Colton. As you will recall, and as provided in the March 28 letter, the plaintiffs who had TBS as their auditor agreed to ensure that both settlements (as to the County and others) will at least reach the minimum authorized level. Please have both agreements executed as soon as possible and return executed original signature pages to me. Of course, if you have questions, please call me or Dan. Best regards. Sincerely, Michael L. Willoughby of Borchard & Willoughby MLW:amg cc: Daniel M. Harkins, Esq. Enclosures 18881 Von Karman Avenue, Suite 1400, Irvine, California 92715 • (714) 644-6161 • Telefax (714) 263-1960984 Hello