Palm Desert RDA vs LQ/Appeal Agreement 95z
AGREEMENT
This Agreement is entered into as of March 1, 1995, by
and among Palm Desert Redevelopment Agency, the. Federal Deposit
Insurance Corporation as Receiver for Jefferson Bank & Trust,
Coachella Valley Joint Powers Insurance Authority, the City of Loma
Linda, the City of Sanger, the City of La Quinta, the City of
Torrance, the City of Big Bear Lake, the City of Indio and the City
of Palm Desert, with respect to the action entitled United States
of America v Real Property Located at 13328 and 13324 State
'-hwav 75 North Blaine County Idaho and Palm Desert
Redevelopment Agency, Claimant and Appellant, which is now pending
before the United States Court of Appeals for the Ninth Circuit,
Case No. 94-56491 (the "Action") and with respect to the subject of
the Action, which consists of the net proceeds (in the present
approximate amount of $965,883) of the sale of the above -referenced
real property (the "Proceeds"). The Proceeds are presently held in
an account maintained by Wells Fargo Bank, N.A., Liquidating Agent
("Wells Fargo Bank").
WHEREAS, the parties to this Agreement (the "Parties")
are also parties to the Action, in which Palm Desert Redevelopment
Agency ("PDRA") has appealed the final order of the United States
District Court for the Central District of California (the
"District Court") in the Action, Case No. CV 92-0100-RJK, that the
Proceeds be paid to the Securities and Exchange Commission Fund
(the "SEC Fund") for distribution to the Parties and other persons
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pursuant to a plan of distribution (the "SEC Plan") approved by the
Court in Securities and Exchange Commission v. Institutional
Treasury Management Inc Denman & Company and Steven D. Wvmer,
Civil Action No. 91-6715 RJK, in the United States District Court
for the Central District of California; and
WHEREAS, the Parties wish, in order to reduce litigation
costs and to expedite distribution of the Proceeds, to resolve the
Action pursuant to the Ninth Circuit settlement program by
procedures which will substitute for, and avoid the necessity of,
a conventional appeal.
IT IS THEREFORE AGREED AS FOLLOWS:
1. The Action shall be referred to the Honorable William
Norris, Senior Judge of the United States Court of Appeals for the
Ninth Circuit, for decision pursuant to the Ninth Circuit
settlement program, in lieu of an appeal to the Ninth Circuit Court
of Appeals, under the following procedures:
a. Judge Norris shall first determine whether the
decision of the District Court should be affirmed. If Judge Norris
determines that the District Court's decision should be reversed or
remanded in any respect, he shall then proceed to determine the
Action on the merits as if he were acting as the District Court.
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b. PDRA shall submit its brief to Judge Norris,
which shall not exceed 25 pages in length, together with excerpts
of record and any other records of which Judge Norris is requested
to take notice, on or before May 1, 1995. The other Parties shall
submit their brief or briefs to Judge Norris, which shall not
together exceed 25 pages in length, on or before June 1, 1995.
C. After the Parties have submitted their briefs
as set forth above, a telephonic oral argument shall be held, to be
scheduled by Judge Norris. PDRA, and the other Parties as a group,
shall each be entitled to a presentation during the oral argument
not to exceed 15 minutes in length. Questions by Judge Norris and
responses of counsel shall not be counted toward or limited by the
said time limits.
2. If Judge Norris determines that the District Court's
decision should be affirmed, PDRA shall be entitled to and will
receive $320,000 of the Proceeds. In such event, the balance of
the Proceeds, together with any funds now held by Wells Fargo Bank
for the benefit of PDRA, shall be distributed pursuant to the SEC
Plan to the beneficiaries of the SEC Plan other than PDRA, and PDRA
shall not receive any distributions pursuant to the SEC Plan.
3. If Judge Norris determines that PDRA is entitled to
a percentage of the Proceeds, but not to all of the Proceeds, which
percentage is 70% or higher, PDRA shall be entitled to and will
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receive the amount which is the product of multiplying (i) $850,000
and (ii) the percentage to which Judge Norris determines PDRA is
entitled. In such event, the balance of the Proceeds, together
with any funds held by Wells Fargo Bank for the benefit of PDRA,
shall be distributed pursuant to the SEC Plan to the beneficiaries
of the SEC Plan other than PDRA, and PDRA shall not receive any
distributions pursuant to the SEC Plan.
4. If Judge Norris determines that PDRA is entitled to
a percentage of the Proceeds, but not to all of the Proceeds, which
percentage is less than 70%, PDRA shall be entitled to and will
receive the amount which is the product of multiplying (i) $800,000
and (ii) the percentage to which Judge Norris determines PDRA is
entitled, provided, however, that PDRA shall be entitled to and
will receive no less than $320,000. In such event, the balance of
the Proceeds, together with any funds held by Wells Fargo Bank for
the benefit of PDRA, shall be distributed pursuant to the SEC Plan
to the beneficiaries of the SEC Plan other than PDRA, and PDRA
shall not receive any distributions pursuant to the SEC Plan.
5. If Judge Norris determines that PDRA is entitled to
all of the Proceeds, PDRA shall receive $850,000 of the Proceeds.
In such event, the balance of the Proceeds, together with any funds
now held by Wells Fargo Bank for the benefit of PDRA, shall be
distributed pursuant to the SEC Plan to the beneficiaries of the
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SEC Plan other than PDRA, and PDRA shall not receive any
distributions pursuant to the SEC Plan.
DATED: March _, 1995
DATED: March , 1995
DATED: March , 1995
DATED: March , 1995
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PALM DESERT REDEVELOPMENT AGENCY
By
Its
FEDERAL DEPOSIT
INSURANCE CORPORATION,
AS RECEIVER FOR
JEFFERSON BANK & TRUST
By
Its
COACHELLA VALLEY JOINT POWERS
INSURANCE AUTHORITY
By
Its
CITY OF BIG BEAR LAKE
By
Its
DATED:
March
,
1995
CITY
OF
INDIO
By
Its
DATED:
March
,
1995
CITY
OF
PALM DESERT
By
Its
DATED:
March
_,
1995
CITY
OF
LOMA LINDA
By
Its
DATED:
March
,
1995
CITY
OF
SANGER
By
Its
DATED:
March
,
1995
CITY
OF LA QU NTA
By
Its
DATED:
March
,
1995
CITY
OF
TORRANCE
By
Its
N