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HomeMy WebLinkAboutContracts & Agreements_46-1991_CCv0001.pdf FRESHMAN, MARANTZ, ORLANSKI, COOPER & KLEIN ATTORNEYS A LAW CORPORATION TWX EIGHTH FLOOR, EAST TOWER SAMUEL K FRESHMAN 910-490-1995 RETIRED 9100 WILSHIRE BOULEVARD FACSIMILE BEVERLY HILLS, CALIFORNIA 90212-3480 (213) 274-8293 TELEPHONES WRITERS DIRECT NUMBER (2I31 273-1870- (213) 272-2155 IN REPLY REFER TO: (213) 285-1614 October 18, 1991 Howard B. Golds Best, Best & Kreiger P.O. Box 1028 Riverside, CA 92502 VIA FEDERAL EXPRESS Re: City of Redlands v. RTC/Westport, etc. Dear Howard: Enclosed is a revised settlement agreement dated October 18, 1991, which I sincerely hope will be the final version. Please disregard all previous versions of the agreement. The revised settlement agreement provides for a general release only as to those claims arising from the loan, the litigation, etc. defined as the "Disputes" on page 2 of the revised agreement. The final version also contains minor cosmetic changes, and, as you requested, an additional $500. 00 for attorneys fees incurred by your client in connection with the execution of this agreement. This will also confirm our earlier discussion, in which I confirmed that to the extent possible your firm's role in performing under the stipulation (e.g. obtaining court orders, making appearances, etc. ) will be de minimis, and, whenever possible, this firm will handle such matters. Please sign, and have Mayor DeMirjyn sign, the attached signature pages (pp. 13-14) , and mail them to me by the end of the week. Yours Truly, Andrew D. Morrison FOR THE FIRM SETTLEMENT AGREEMENT AND MUTUAL RELEASE This SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Agreement") dated October 18, 1991, is entered into by and between the City of Redlands (hereinafter referred to as the "City") , the Redlands Unified School District (hereinafter referred to as the "School District") , the Resolution Trust Corporation, as receiver for Westport Federal Savings Bank (hereinafter referred to as "RTC/Westport") (Westport Federal Savings Bank, Westport Savings Bank, and Westport Guaranty Corporation are sometimes collectively hereinafter referred to as "Westport") , Salar Investments, Inc. (hereinafter referred to as "Salar") and Nassar Salessi (hereinafter referred to as , "Salessill) ,, and is made with reference to the following facts: RECITALS WHEREAS, on September 20, 1990 the City filed a complaint in interpleader in San Bernardino County Superior court against, inter alia, Salar and RTC/Westport (mistakenly designated in the complaint as the Resolution Trust Corporation in its corporate capacity) , which action is designated Case No. 258823 , and which action was removed to United States District Court, Central District of California, designated as Case No. CV90-5468- WMB (the "City Interpleader Action") ; and WHEREAS, on September 27, 1990 Salar filed a complaint in Orange County Superior court against Westport, designated as Case No. 637294 , which action was answered by Westport, and subsequently removed to United States District Court, Central District of California, and was designated as Case No. CV90-5468- WMB following an intra-district transfer, and which alleges breach of contract, intentional and negligent misrepresentation of fact, and suppression of fact (the "Salar Action") (the City Interpleader Action and Salar Action are collectively referred to as the "Federal Action) ; and WHEREAS, on October 12, 1990, Salar filed a petition for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Central District of California, Designated as Case No. SA 90- 07207-JW (the "Bankruptcy Case") ; and WHEREAS, on October 29, 1990 the School District filed a complaint in interpleader in San Bernardino County Superior court against, inter alia, Salar and RTC/Westport (mistakenly designated in the complaint as the Resolution Trust Corporation in its corporatecapacity) designated as Case No. 259610 (the "School District Interpleader Action" or thee "State action") ; and WHEREAS, On July 12, 1991, after obtaining relief from stay in the Bankruptcy Case, RTC/Westport has filed an answer in the City Interpleader Action, including a cross claim against Salar and Salessi for judicial foreclosure, unjust enrichment, and breach of guaranty (the "RTC/Westport Action") ; and 7-D3r:maf WHEREAS, RTC/Westport on the one hand, and Salar and Salessi on the other, each denies the allegations of the other and denies that it has any obligations whatsoever to the other with respect to the claims made in any of these actions; and WHEREAS, the City and School District are mere stakeholders in the two interpleader actions; and WHEREAS, each of the parties desires to fully and finally settle and resolve any and all disputes and differences which exist or may exist between them arising in any way out of or in connection with the $656,800 loan from Westport to Salar in July 1990, and/or any alleged agreements that Westport would advance additional monies to Salar, and/or Westport's insolvency, and/or the construction project located at the corner of Kansas Street and Orange Street in the City of Redlands, and/or permits or licenses obtained for said construction project, and/or any and all other disputes and differences which led to the commencement of the City Interpleader Action, the Salar Action, the School District Interpleader Action and/or the RTC/Westport Action (the "Disputes") ; NOW, THEREFORE, in consideration of these premises and the terms and conditions contained herein, and other good and valuable consideration, the parties hereto agree as follows: 7-D3r:maf 2 1. Payment of Interpleaded funds. 1. 1 Immediately upon the bankruptcy court's approval of this settlement, and granting of relief from stay to comply with its terms, the attorneys for the City shall apply for an order of the U.S. District Court in the form attached hereto as Exhibit "A", and an order of the San Bernardino Superior Court in the form attached hereto as Exhibit "B", directing the San Bernardino County Clerk to apply $566,733 .96 of the interpleaded funds to the RTC/Westport, $5, 674. 55 to the City, and the remainder of the funds, if any, to Salar. All parties to this agreement shall cooperate in whatever manner required to obtain such an order, including signing any stipulation to aid in the return of these monies. 1.2 Immediately upon the bankruptcy court's approval of this settlement, and granting relief from stay in complying with its terms, the attorneys for the School District shall apply for an order of the San Bernardino Superior Court in the form attached hereto as Exhibit "C", applying $90,066.584 to the RTC/Westport, $900.00 to the School District, and the remainder of the funds to Salar. All parties to this agreement shall cooperate in whatever manner required to obtain such an order, including signing any stipulation to aid in the return of these monies. 1. 3 Except as provided above, each of the parties hereto shall bear its own costs and fees. 7-D3r:maf 3 2. Dismissals by All Parties 2. 1 Dismissal of the Federal Action. Immediately upon notification by the attorney(s) for RTC/Westport of receipt of the interpleaded funds from the San Bernardino County clerk as described in Section 1. 1, above, the attorney(s) for Salar shall execute and deliver to the attorney(s) for the City a stipulation and order for dismissal in the form attached hereto as Exhibit I'D. " The attorney(s) for the City shall execute such stipulation and deliver it to the attorney(s) for RTC/Westport. Upon receipt of such executed stipulation, the attorneys for RTC/Westport shall execute and file such stipulation and order. 2.2 Dismissal of the State Action. Immediately upon notification by the attorney(s) for RTC/Westport of receipt of the Interpleaded funds from the San Bernardino County clerk as described in section 1.2, above, the attorney(s) for the School District shall immediately execute and deliver to the attorneys for RTC/Westport a request for dismissal in the form attached hereto as Exhibit 11E. 11 The attorneys for RTC/Westport shall promptly file such request for dismissal. 7-D3r:maf 4 3. Releases 3. 1 Releases by the City Except for obligations arising out of this Agreement, the City, on behalf of itself and its agents, hereby releases and absolutely discharges: (1) Salar and its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, and (2) Salessi and his agents, affiliates, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, and (3) RTC/Westport and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, and (4) the Resolution Trust Corporation in its corporate and any other capacity, and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, (5) Westport and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs., executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, of and from any and all claims, demands, damages, debts, liabilities, accounts, actions, causes of action, judgment, executions, and attachments of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, which the City ever had or now has arising from or in connection with the Disputes. 7-D3r:maf 5 3 .2 Releases by the School District Except for obligations arising out of this Agreement, the School District, on behalf of itself and its agents, hereby releases and absolutely discharges: (1) Salar and its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, and (2) Salessi and his agents, affiliates, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, and (3) RTC/Westport and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, and (4) the Resolution Trust Corporation in its corporate and any other capacity, and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, (5) Westport and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, of and from any and all claims, demands, damages, debts, liabilities, accounts, actions, causes of action, judgment, executions, and attachments of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, which the School District ever had or now has arising from or in connection with the Disputes. 7-D3r:maf 6 3 . 3 Releases by Salar Except for obligations arising out of this Agreement, Salar, on behalf of itself and its agents, hereby releases and absolutely discharges: (1) RTC/Westport and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, and (2) the Resolution Trust Corporation in its corporate and any other capacity, and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, (3) Westport and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, (4) the City and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, (5) the School District and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, of and from any and all claims, demands, damages, debts, liabilities, accounts, actions, causes of action, judgment, executions, and attachments of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, which Salar ever had or now has arising from or in connection with the Disputes. 7-D3r:maf 7 3.4 Releases by Salessi Except for obligations arising out of this Agreement, Salessi, on behalf of itself and its agents, hereby releases and absolutely discharges: (1) RTC/Westport and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, and (2) the Resolution Trust Corporation in its corporate and any other capacity, and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, (3) Westport and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, (4) the City and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, (5) the School District and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, of and from any and all claims, demands, damages, debts, liabilities, accounts, actions, causes of action, judgment, executions, and attachments of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, which Salessi ever had or now has arising from or in connection with the Disputes. 7-D3r:maf 3 . 5 Releases by RTC Westport Except for obligations arising out of this Agreement, the RTC/Westport, on behalf of itself and its agents, hereby releases and absolutely discharges: (1) Salar and its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and past, present and future owners, shareholders, officers and directors, and each of them, and (2) Salessi and his agents, affiliates, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, and (3) the City and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, (4) the School District and any of its agents, affiliates, members, predecessors, successors, assigns, sureties, attorneys, employees, heirs, executors, administrators, and each of them, of and from any and all claims, demands, damages, debts, liabilities, accounts, actions, causes of action, judgment, executions, and attachments of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, which RTC/Westport ever had or now has arising from or in connection with the Disputes. 7-D3r:maf 9 4. Covenant Not To Sue Each of the parties to this Agreement, on behalf of themselves, their attorneys, agents, employees, successors and assigns, agrees that they will not make, assert or maintain against any person or corporation released herein, any claim, demand, action or suit arising out of or in connection with the matters herein released. 5. No Assignment of Released Claim Each of the parties to this Agreement represents and warrants that they, or any of their agents, attorneys, employees, successors or assigns, have not assigned or transferred or purported to transfer or assign any matter herein released, and agree to indemnify and hold the other party harmless from and against any claim, demand, damage, debt, liability, cost or expense or cause of action, including attorneys' fees paid or incurred, arising out of any such transfer or assignment. 6. Release of Unknown Claims Each of the parties to this agreement acknowledges it has been informed and is aware of the provisions of California Civil Code § 1542 and does expressly waive and relinquish all rights and benefits which it has or may have had under said section, 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. " Each of the parties to this Agreement agrees that this Agreement will remain in effect as a general release of the matters described in Section 3, notwithstanding any additional or different facts or claims it may discover about the matters herein released. 7. Independent Legal Advice Each of the parties to this Agreement warrants, represents and agrees that in executing this document it does so with full knowledge of the rights it may have in respect to the other party to this Agreement, and that it has received or had the opportunity to receive independent legal advice as to these rights. S. No Reliance on Representation Each of the parties to this Agreement warrants.- represents and agrees that it is not relying and has not relied 7-D3r:maf 10 upon any representation or statement made by any other party to this Agreement with respect to the facts involved or with respect to its rights or asserted rights except those facts contained in this Agreement. 9. Denial of Liability Nothing herein shall be construed as an admission by either party of any liability of any kind to the other party. 10. Approval by District Court or Bankruptcy Court. Salar's attorney(s) shall immediately apply to the District Court and/or Bankruptcy court for approval of this Agreement, and for relief from the automatic stay to perform each of the terms herein, including without limitation taking any action necessary to obtain the entry of orders described in section 1. 1 and 1.2 above, and filing the dismissals described in sections 2. 1 and 2.2 above. In the event that this Agreement, or any portion of this Agreement whatsoever, is not approved by order of the District Court or Bankruptcy court or relief from the automatic stay to perform the terms of the Agreement is not granted, this Agreement shall have no force or effect and each of the parties reserves its respective rights and liabilities as they existed notwithstanding this Agreement. 11. Miscellaneous 11. 1 Entire Agreement This Agreement contains all representations and the entire understanding between the parties and supersedes all prior written and oral agreements that exist or may exist between the parties including, without limitation, any version(s) of this agreements dated September 6, 1991 or October 14, 1991, whether executed or not. This Agreement may be modified only by a written instrument signed by all the parties hereto. 11.2 Attorneys' Fees In the event any dispute arises out of this or the matters herein released, the prevailing party shall be entitled to all reasonable costs incurred in connection therewith, including but not limited to, actual attorneys ' fees. 11.3 ' Waiver--Validity No waiver of ,any provision of this Agreement shall constitute a waiver of any other provision, nor shall such waiver constitute a continuing waiver. In the event that any provision of this Agreement is found to be void or unenforceable, the remaining provisions shall nonetheless be binding with the same effect as though the void or unenforceable parts were deleted. 7-D3r:maf 11 11.4 Binding Effect This Agreement shall be binding upon and inure to the benefit of all parties hereto and their respective heirs, representatives, successors and assigns. 11.5 Additional Documents Each party shall, at the request of the other, execute, acknowledge and deliver whatever additional instruments, and do such other acts, as may be required or convenient to carry out the intent and purpose of this Agreement. 11.6 California Law This Agreement shall be governed by and construed under and in accordance with the laws of the State of California. 11.7 Gender/Paragraph Headings/Construction As used in this Agreement, the masculine, feminine or neuter gender, and the singular or plural number, shall each be deemed to include the others whenever the context so indicates. Paragraph headings contained in this Agreement are for convenience only and shall not be considered for any purpose in construing this Agreement. This Agreement shall be construed without regard to the party or parties responsible for the preparation of the same and shall be deemed to have been prepared jointly by the parties hereto. Any ambiguity or uncertainty existing herein shall not be interpreted against either party, but according to the application of other rules of contract interpretation, if an ambiguity or uncertainty exists. 11.8 Counterparts This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same agreement. In addition, each party may execute separate signature pages to be appended to one copy of this Agreement. . 11.9 Authority Each of the signatories below represents that he is authorized to execute this agreement on behalf of the entity named, and to bind such entity to the terms of this Agreement. 7-D3r:maf 12 IN WITNESS WHEREOF, the parties have executed this Agreement, dated October 18, 1991, as of the date and year set forth adjacent to each of their respective signatures. Dated: October 22, 1991 CITY OF REDLAN c B : rl G.` De It M r Dated: October , 1991 REDLA DS UN -IED SCH L DISTRICT By: Dr. Ronald Franklin Its: Superintendent Dated: October , 1991 SALAR INVESTMENTS, INC. By: Nassar Salessi Its: President Dated: October , 1991 NASSAR SALESSI Nassar Salessi Individually Dated: October , 1991 RESOLUTION TRUST CORPORATION AS RECEIVER FOR WESTPORT FEDERAL SAVINGS BANK By: Its: 7-©3r:maf 13 This Agreement, dated October 18, 1991, approved as to form and content: BEST, BEST & KREIGER By: Howard B oTasr- Attorneys for City of Redlands SAN BERNARDINO COUNTY COUNSEL By: Michelle Blakemore Attorneys for Redlands Unified School District Herbert N. Niermann Attorney for Salar Investments, Inc. and Nassar Salessi FRESHMAN, MARANTZ, ORLANSKI COOPER & KLEIN Andrew D. Morrison Attorneys for Resolution Trust Corporation as receiver for Westport Federal Savings Bank 7-D3r:maf 14