First Interstate-Renton vs City/Settlement Agree 95SETI]LE 1 IENT AGREEMENT AND MUTUAL RELEASE
This Agreement ("Agreement"), effective as of March _, 1995 (the
"Effective Date"), is made between and among the City of La Quinta, California
("City"), First Interstate Bank of Denver, N.A. ("First Interstate"), and Susan M.
Renton ("Renton") (collectively the "Parties").
WHEREAS, the City is the lawful assignee of certain rights of action
formerly belonging to the City of Marshalltown, Iowa that arise out of the City of
Marshalltown's former relationships with Steven D. Wymer, Denman & Company,
Capital Asset Management Corporation, SDW Asset Management Corporation, and/or
Institutional Treasury Management, Inc. ("Marshalltown Claims");
WHEREAS, the City has asserted Marshalltown Claims against Renton, a
former officer and employee of First Interstate, and First Interstate;
WHEREAS, Renton and First Interstate maintain that their actions were
at all times lawful and proper and deny any liability whatsoever to the City; and
WHEREAS, to resolve fully and finally the differences between the Parties
with respect to the matters described in this Agreement, in a manner that will avoid the
burden and expense of litigation, and without prejudice to any and all rights of the
Parties relating to matters not addressed in the Agreement;
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions set forth below, it is agreed by and between the Parties as follows:
I. Payment. In consideration of the agreement by the City to perform
the obligations required of it hereunder, Renton and First Interstate agree to pay the
sum of fifty thousand dollars ($50,000) to the City. Payment shall be made within seven
business days of receipt by Renton and First Interstate of fully -executed originals of this
Agreement and the Release described in Section 3 below. Payment shall be delivered by
wire transfer pursuant to written instructions provided by the City not less than two
business days prior to the date of payment. The City agrees and acknowledges that
timely delivery of payment in conformity with the written instructions shall constitute
full compliance by Renton and First Interstate with their obligations under this Section.
2. Specific Releases and Covenants.
a. The City, for itself and its respective present and former
public officials, elected representatives, employees, agents, attorneys, successors, and
assigns hereby forever releases, remises, acquits, and discharges Renton, First Interstate
and all of its past and present parent corporations (including but not limited to First
Interstate Bancorp), subsidiaries, affiliates, wholly -owned corporations, successors,
-2-
0
assigns, principals, and predecessors thereto, and all past and present officers,
shareholders, agents, employees, directors, representatives, heirs, executors,
administrators, personal representatives, or attorneys of any of these persons or entities,
from any and all claims, rights, demands, losses, damages, costs, liabilities, obligations,
actions, and causes of action of every kind, nature, or description, whether known or
unknown, suspected or unsuspected, liquidated or unliquidated, including claims for
contribution and indemnity, which the City ever had, or now has, or in the future may
claim to have that in any way relate to, arise from, are based upon, or are connected
with, directly or indirectly, Marshalltown Claims or the City of Marshalltown's
investment of funds with Steven D. Wymer or any person or entity affiliated with him,
including but not limited to Denman & Company, Institutional Treasury Management,
Inc., Denman & Company of Colorado, Capital Asset Management Corporation, SDW
Asset Management Corporation, and Fund Administration Services, Inc.
b. The City covenants that it will never institute any of the
claims released pursuant to Subsection 2.a above. In the event that the City breaches
this covenant, Renton and/or First Interstate shall be entitled to such damages as may
be permitted by law, as well as attorneys' fees and litigation expenses.
C. Renton and First Interstate, for themselves and their present
and former respective parent corporations, subsidiaries, affiliates, wholly -owned
corporations, officers, shareholders, agents, employees, directors, attorneys,
representatives, heirs, executors, administrators, personal representatives, successors,
Cl
assigns, principals, and predecessors thereto, hereby forever release, remise, acquit, and
discharge the City and its respective present and former public officials, elected
representatives, employees, agents, attorneys, successors, and assigns from any and all
claims, demands, losses, damages, costs, liabilities, obligations, actions, and causes of
action of every kind, nature, or description, whether known or unknown, suspected or
unsuspected, liquidated or unliquidated, including claims for contribution and
indemnity, which Renton or First Interstate ever had, or now have, or in the future may
claim to have that in any way relate to, arise from, are based upon, or are connected
with, directly or indirectly, Marshalltown Claims or the City of Marshalltown's
investment of funds with Steven D. Wymer or any person or entity affiliated with him,
including but not limited to Denman & Company, Institutional Treasury Management,
Inc., Denman & Company of Colorado, Capital Asset Management Corporation, SDW
Asset Management Corporation, and Fund Administration Services, Inc. It is
understood and agreed that this release shall not extend to Steven D. Wymer or any
person or entity affiliated with him, including but not limited to Denman & Company,
Institutional Treasury Management, Inc., Denman & Company of Colorado, Capital
Asset Management Corporation, SDW Asset Management Corporation, and Fund
Administration Services, Inc.
d. Renton and First Interstate covenant that they will never
institute any of the claims released pursuant to Subsection 2.c above. In the event that
Renton or First Interstate breaches this covenant, the City shall be entitled to such
-4-
•
damages from the breaching Party as may be permitted by law, as well as attorneys'
fees and litigation expenses.
e. Each of the Parties hereto acknowledges that it/she is fully
familiar with the provisions of Section 1542 of the California Civil Code and expressly
agrees that the releases set forth above constitute a waiver and release of any right or
benefits that it/she may have thereunder. California Civil Code Section 1542 states:
"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."
Each of the Parties expressly acknowledges that the intention of this
Agreement is to afford the broadest general release permissible under law with respect
to the matters released, and that the effect and import of this provision has been
explained fully by its/her own legal counsel and that this Agreement is entered into
freely and voluntarily, without duress or undue influence.
3. Additional Release. As an integral part of this Agreement, Renton,
First Interstate, and the City of Marshalltown, Iowa shall execute and exchange a
mutual release in the form attached as Exhibit A to this Agreement.
-5-
0 •
4. Good Faith Settlement.
a. The Parties hereby acknowledge that this Agreement was
negotiated in good faith and this Agreement constitutes a good faith settlement under
the principles set forth in Franklin v. Kayoro Corp., 884 F.2d 1222 (9th Cir. 1989),
cert. denied, 498 U.S. 890 (1990), Sections 877 and 877.6 of the California Code of Civil
Procedure, Section 668.7 of the Iowa Code, and Section 13-50.5-105 of the Colorado
Revised Statutes.
b. The Parties further acknowledge that the terms of the
Agreement, including but not limited to those set forth in Section 1, in the view of the
Parties and their respective legal counsel, are within the reasonable range of
Renton/First Interstate's proportional share of comparative liability, if any, of the
damages claimed by the City, taking into account all information presently available and
the factors set forth in Franklin v. Kaypro Corp., 884 F.2d 1222 (9th Cir. 1989), cert.
denied, 498 U.S. 890 (1990); and Tech -Built. Inc. v. Woodward-Clvde Associates, 38
Cal. 3d 488, 698 P.2d 159, 213 Cal. Rptr. 256 (1985).
C. At any time after the Effective Date, any Party may institute
an action, or file a motion or pleading with a court of competent jurisdiction, seeking an
order determining that this Agreement constitutes a good faith settlement under the
standards set forth in Subsection 4.a above or other relevant legal standards. In that
event, the other Parties shall use their best efforts to support the action or motion and
-6-
0 •
obtain entry of such an order by the court. Best efforts shall include, but not be limited
to, providing truthful declarations and/or other evidence supporting the good faith
nature of the Agreement, including the facts acknowledged in Subsections 4.a and 4.b
above.
d. At any time after the Effective Date, any Party may institute
an action, or file a motion or pleading with a court of competent jurisdiction, seeking a
determination that this Agreement constitutes a defense to any claim for contribution or
indemnification asserted against that Party. In that event, the other Parties shall use
their best efforts, as defined in Subsection 4.c above, to support the action, motion, or
pleading and obtain entry of such a determination by the court.
5. No Use As Evidence. This Agreement shall be deemed to fall within
the protection afforded compromises and offers to compromise by Rule 408 of the
Federal Rules of Evidence and parallel state law provisions. The existence of this
Agreement, the terms thereof, and any acts or omissions related thereto, shall not be
used by way of discovery, evidence, offer of proof, or otherwise except (i) in any action
to enforce or defend the terms of the Agreement or involving insurance coverage
relating to the Agreement; (ii) to make sworn statements as to the fact of the settlement
and releases provided herein; (iii) to pursue entry of a good faith settlement order; or
(iv) to defend against a claim for contribution or indemnification asserted against a
Party or Parties.
-7-
0
6. Representations and Warranties.
a. The City represents and warrants that, as of the Effective
Date, it has not assigned, conveyed, or otherwise transferred to any person or entity any
claim or right of action of any kind against Renton, First Interstate, or other persons or
entities released pursuant to Subsection 2.a of this Agreement.
b. Each Party represents and warrants that it/she has full legal
authority to execute this Agreement and to bind itself/herself to the Agreement by
execution thereof, that each Party has obtained all necessary legal approvals to enter
into this Agreement, and that the execution and delivery of this Agreement will not
violate any agreement, court order, order of any governmental or regulatory entity, or
any law or regulation. Each Party (except Renton) shall, concurrently with its execution
of this Agreement, submit to the other Parties a resolution or other satisfactory
documentation indicating that the signatory for that Party is vested with authority to
bind the Party for purposes of this Agreement.
7. Continuation of Agreement. This Agreement is binding upon and
shall inure to the benefit of the City, Renton, First Interstate, and their respective
successors and assigns.
8. No Admission. By entering into this Agreement, the Parties do not
intend to make, nor shall they be deemed to have made, any admission of any kind.
The Parties agree that they are entering into this Agreement for the purposes of settling
MR
C�
CI
certain disputes between them and to avoid the considerable burden and expense of
litigation with respect to those disputes. This Agreement is the product of informed
negotiations and compromises of previously -stated legal positions. Except as specifically
set forth in this Agreement, each Party reserves all rights, claims, and defenses it had at
the time of the execution of the Agreement. Neither this Agreement, nor any acts or
omissions related thereto, shall constitute an admission of liability of any kind.
9. Effectuation of Agreement. Each Party agrees that, without
additional consideration, it/she will execute or cause to be executed any other
documents, and/or take or cause to be taken any other actions, as may be necessary to
effect the implementation of the provisions of this Agreement, including but not limited
to the actions, motions, and pleadings referred to in Subsections 4.c and 4.d above.
10. Applicable Law. This Agreement shall be governed by the laws of
the State of California.
11. Authorship. This Agreement reflects the joint drafting efforts of
the Parties in consultation with their respective legal counsel. In the event of any
dispute, disagreement, or controversy regarding the Agreement, the Parties shall be
considered joint authors and no provision shall be interpreted against any Party because
of putative authorship. The Parties agree that the canon of contract interpretation set
forth in Section 1654 of the California Civil Code shall not be applied in the
construction or application of this Agreement.
-9-
•
12. Entire Agreement. This Agreement constitutes the entire
Agreement between the Parties regarding the matters addressed herein. Except as
explicitly set forth in this Agreement, there are no representations, warranties, or
inducements whether oral, written, express, or implied that in any way affect or
condition the validity of this Agreement or any of its conditions or terms. All prior
negotiations, oral or written, are merged into this Agreement.
13. Execution. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
14. Amendment. This Agreement may not be amended or modified
except by a written instrument signed by each of the Parties or their duly authorized
representatives.
15. Headines. The headings of sections are designed to facilitate ready
reference to subject matter and shall be disregarded when resolving any dispute
concerning the meaning or interpretation of any language contained in this Agreement.
-10-
IN WITNESS WHEREOF, the Parties or their duly authorized
representatives have executed this Agreement.
CITY OF LA QUINTA, CALIFORNIA
By: (4x� OY
Its:
By:
Its:
FIRST INTERSTATE BANK OF DENVER, N.A.
SUSAN M. RENTON
- 11 -
EXHIBIT A
MUTUAL RF.i.F.ASR
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Susan M. Renton, First Interstate Bank of Denver, N.A., and
the City of Marshalltown, Iowa enter into the following mutual release agreement:
a. The City of Marshalltown, Iowa, for itself and its respective
present and former public officials, elected representatives, employees, agents,
attorneys, successors, and assigns (collectively "City") hereby forever releases, remises,
acquits, and discharges. Susan M. Renton ("Renton"), First Interstate Bank of Denver,
N.A., and all of its past and present parent corporations (including but not limited to
Fist Interstate Bancorp), subsidiaries, affiliates, wholly -owned corporations, successors,
assigns, principals, and predecessors thereto, and all past and present officers,
shareholders, agents, employees, directors, representatives, heirs, executors,
administrators, personal representatives, or attorneys of any of these persons or entities
(collectively "First Interstate"), from any and all claims, rights, demands, losses,
damages, costs, liabilities, obligations, actions, and causes of action of every kind,
nature, or description, whether known or unknown, suspected or unsuspected,
liquidated or unliquidated, including claims for contribution and indemnity, which the
City ever had, or now has, or in the future may claim to have that in any way relate to,
arise from, are based upon, or are connected with, directly or indirectly, the City's
investment of funds with Steven D. Wymer or any person or entity affiliated with him,
including but not limited to Denman & Company, Institutional Treasury Management,
Inc., Denman & Company of Colorado, Capital Asset Management Corporation, SDW
Asset Management Corporation, and Fund Administration Services, Inc.
b. Renton and First Interstate (as defined above) hereby forever
release, remise, acquit, and discharge the City (as defined above) from any and all
claims, demands, losses, damages, costs, liabilities, obligations, actions, and causes of
action of every kind, nature, or description, whether known or unknown, suspected or
unsuspected, liquidated or unliquidated, including claims for contribution and
indemnity, which Renton or Fast Interstate ever had, or now have, or in the future may
claim to have that in any way relate to, arise from, are based upon, or are connected
with, directly or indirectly, the City's investment of funds with Steven D. Wymer or any
person or entity affiliated with him, including but not limited to Denman & Company,
Institutional Treasury Management, Inc., Denman & Company of Colorado, Capital
Asset Management Corporation, SDW Asset Management Corporation, and Fund
Administration Services, Inc. It is understood and agreed that this release shall not
extend to Steven D. Wymer or any person or entity affiliated with him, including but
-12-
not limited to Denman & Company, Institutional Treasury Management, Inc., Denman
& Company of Colorado, Capital Asset Management Corporation, SDW Asset
Management Corporation, and Fund Administration Services, Inc.
By:
Its:
State of Iowa )
County of )
CITY OF MARSHALLTOWN, IOWA
Before me on this _ day of March, 1995, personally appeared
, who, being duly sworn, stated that he/she has executed the foregoing
Release on behalf of the City of Marshalltown, Iowa and is duly authorized to do so.
Notary Public
My commission expires:
-13-
By:
Its:
State of Colorado
County of Denver
FIRST INTERSTATE BANK OF DENVER, N.A.
Before me on this day of March, 1995, personally appeared
, who, being duly sworn, stated that he/she has executed the
foregoing Release on behalf of First Interstate Bank of Denver, N.A. and is duly
authorized to do so.
Notary Public
My commission expires:
:SCE
•
State of Colorado
County of Denver
SUSAN M. RENTON
Before me on this _ day of March, 1995, personally appeared Susan M.
Renton who, being duly sworn, stated that she has executed the foregoing Agreement on
behalf of herself and others identified above and is duly authorized to do so.
Notary Public
My commission expires:
-15-