Greenwich Capital vs City/Settlement Agree 9314
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This SETTLEMENT AGREEMENT AND MUTUAL RELEASES (the
ST
"Agreement") is made and entered into in California as of the
Se t6v+l6ex-
day of =, 1993, by and between The City of La Quinta and La
Quinta Redevelopment Agency (collectively, "La Quinta") on the one
hand, and Greenwich Capital Markets, Inc. ("Greenwich") and Michael
Howe ("Howe"), on the other hand.
RECITALS
A. On or about December 10, 1992, La Quinta filed a
complaint in the United States District Court for the Central
District of California, against Greenwich, Howe, and others for
violations of Federal Securities Laws, among other claims, which
case is entitled City of La Ouinta v. Refco Group, Ltd, et al.,
Case No. CV-92-7626 RJK.
B. The parties acknowledge that there are other actions
pending or anticipated to be filed against Greenwich and/or Howe
which are based upon the same or substantially similar allegations
as those in the Action. Plaintiffs in those other actions or
anticipated actions are City of Torrance, City of Palm Desert, Palm
Desert Redevelopment Agency, City of Big Bear Lake, City of Indio,
City of Sanger, Sanger Redevelopment Agency, City of Orange,
Francis M. Loustalet, as treasurer of Weld County, Colorado, and
Board of County Commissioners of Weld County, Colorado, Coachella
1
u
Valley Joint Powers Insurance Authority, City of Marshaltown, Iowa,
Iowa Trust and Jefferson Bank & Trust (of Colorado) (collectively
"Related Plaintiffs").
C. The parties hereto wish to compromise and settle the
issues raised in connection with the Action and to release each
other from any and all liability connected therewith, with the
understanding that the releases do not constitute an admission of
any wrongdoing, illegal conduct, or any other matter on the part of
the parties.
D. Greenwich and Howe assert that they are blameless and
without any liability whatsoever in connection with the claims
released herein. Each has been advised that the significant cost
of the successful defense of this lawsuit, including, but not
limited to, attorneys' fees and costs, expenditure of time by
executives and its personnel and other costs greatly outweighs any
benefit which would be derived from vindication in a court of law.
NOW, THEREFORE, in consideration of the promises
hereinafter set forth and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Upon execution of this Agreement, Greenwich shall pay to
La Quinta the sum of Fifty Thousand Dollars ($50,000.00). The
V,
payment shall be delivered to Stradling, Yocca, Carlson & Rauth and
shall be in the form of a cashiers check made payable to The City
of La Quinta.
2. Upon receipt of the payment described in paragraph 1
above, La Quinta shall direct its counsel to file a notice of
dismissal with prejudice of the Action.
3. In consideration of the payment of the sum of $50,000, La
Quinta, for itself, its heirs, assigns, successors, agents and
employees, hereby releases Greenwich, and all of its subsidiaries
or affiliated corporations, and Howe, and any of their directors,
officers, predecessors -in -interest, legal successors and assigns,
heirs, executors, administrators, personal representatives,
members, agents, employees, representatives, attorneys, parents,
subsidiaries, partners, affiliates, and each of them (hereinafter,
the "Released Parties,") of and from any and all liability, claims
or causes of action that presently exist in favor of La Quinta,
whether or not personally known or within the contemplation of La
Quinta.
4. Greenwich and the Released Parties hereby release La
Quinta, its heirs, assigns, successors, agents and employees, from
any and all liability, claims or causes of action that presently
exist in favor of Greenwich and the Released Parties, whether or
not personally known or within the contemplation of Greenwich and
3
the Released Parties.
5. Howe, for himself, and his past and present predecessors
in interest, heirs, executors, administrators, personal
representatives, and agents, agents and employees, hereby release
La Quinta from any and all liability, claims or causes of action
against La Quinta, that presently exist in favor of Howe, whether
or not personally known or within the contemplation of Howe.
6. The parties hereto and each of them, do hereby expressly
waive any and all rights which they may have under the provisions
of Section 1542 of the Civil Code of the State of California which
reads 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."
7. La Quinta hereby acknowledges that the Agreement was
negotiated and executed in good faith and that the terms of the
Agreement, including those set forth in paragraph D(1), reasonably
reflect Greenwich's and Howe's potential proportional liability for
the damages alleged by La Quinta against all defendants in the
Action. La Quinta further agrees to assist Greenwich and Howe
4
should Greenwich and/or Howe seek a judicial determination
regarding the good faith nature of the Agreement and/or an order
barring contribution claims. This assistance may include, but is
not limited to, providing Greenwich and/or Howe with declarations
and/or other evidence supporting the good faith nature of the
Agreement.
8. The provisions of this Agreement shall be binding and
extend to and inure to the benefit of the officers, directors,
partners, employees, legal successors, assigns, heirs, executors,
and administrators of each of the parties, including without
limitation, any partnerships, corporations or other entities
controlled by or controlling them or in which any of them have a
controlling interest or position, and shall also be binding upon
their agents, servants, representatives, attorneys and persons
acting for them or on their behalf.
9. This Agreement may be used by any one or more of the
parties hereto as a full and complete defense to, and the parties
hereby consent that it may be used as the basis for an injunction
against, any action, suit or other proceeding based on any Claim
released by this Agreement as to any one or more of the parties.
10. This Agreement is the entire agreement between the
parties related to the subject matter hereof and supersedes and
replaces all prior negotiations or proposed agreements, written or
61
i
oral, relating thereto. Each of the parties hereto acknowledges
that no other party, nor any agent or attorney of any other party,
has made any promise, representations or warranties whatsoever,
express or implied, not contained herein concerning the subject
matter hereof, to induce them to execute this Agreement in reliance
upon any such promise, representation or warranty not contained
herein. No provision of this document may be amended or added
hereto except by an agreement in writing signed by all parties
hereto or their respective successors -in -interest.
11. Each of the parties represents and warrants that (1) it
has not heretofore assigned or transferred or purported to assign
or transfer any of the Claims released herein to any person or
entity for any purpose whatsoever; (2) that each has full authority
to execute the Agreement and bind itself to the Agreement by
execution hereof; (3) that each party has obtained all necessary
legal approvals to enter into this Agreement; and (4) that to the
best of their knowledge, the execution and delivery of this
Agreement will not violate any agreement, court order,
administrative order of any governmental entity, or any law or
governmental regulation.
12. No action by any of the parties hereto, either previously
or in connection with this Agreement, shall be deemed or construed
to be an admission of the truth or falsity of any matter pertaining
to any Claim referred to herein or relating to the subject matter
0
0 •
of this Agreement, or an acknowledgment by such party, or any of
them, of any liability or lack of liability to the other party
hereto, or to any other person.
13. This Agreement may be executed in any number of
counterparts, and if so executed, each such counterpart shall have
the same force and full effect of an original. If any term or
provision of the Agreement is determined to be invalid or
unenforceable, the remaining terms and provisions shall not be
affected thereby and shall remain in full force and effect to the
maximum extent permitted by law.
14. All the agreements, representations, warranties and
obligations of the parties set forth in this Agreement shall
survive the execution of this Agreement. This Agreement shall be
governed by and construed under the laws of the State of
California.
15. THE UNDERSIGNED HEREBY CERTIFY THEY HAVE READ ALL OF THIS
SETTLEMENT AGREEMENT AND MUTUAL RELEASES AND FULLY UNDERSTAND ALL
OF THE SAME.
DATED: July _, 1993. City of La Quinta
By: aw
Uk
of the City of La Quinta
rl
•
La Quinta Redevelopment Agency
N
By: I (�V 0041,d 1
0
�e of La Quinta
Redevel pment Agency
DATED: July al, 1993.
DATED: July � I, 1993.
Greenwich Capital Markets, Inc.
By:
Senior Vice President & General
Counsel of Greenwich Capital
Markets, Inc.
Michael Howe
By:
MichAel Howe
W
APPROVED AS TO FORM:
DATED: J,3x y 9, 1993
ud7
DATED: July �, 1993
Stradling, Yocca, Carlson & Rauth
By:
Attorneys for City of La Quinta
and La Quinta Redevelopment Agency
Law offices of Thomas P. Puccio
By: Ilti� �C L- -
Thomas P. Puccio
Attorneys for Greenwich Capital
Markets, Inc. and Michael Howe
10
0 4
T ztct D 4a Q9&&
78-495 CALLE TAMPICO — LA QUINTA, CALIFORNIA 92253 - (619) 777-7000
FAX (619) 777-7101
September 24, 1993
John Cannon
Stradling, Yocca, Carlson & Rauth
P.O. Box 7680
Newport Beach, California 92660-6441
Dear John:
Enclosed is one fully executed copy of the settlement agreement
with Greenwich Capital and Michael Howe which was approved by the
City Council on September 21, 1993. I have retained one original
for my files.
rely,
SAUNDRA L. JUHOLA, City Clerk
City of La Quinta, California
�
MAILING ADDRESS - P.O. BOX 1504 - LA QUINTA, CALIFORNIA 92253 0 a=
,