HomeMy WebLinkAbout98-469 I~ESOLUTION NO. 98-.469
A RESOLUTION OF THE MOH~V~ COUNTY BOARD OF sUpERvISORs APPROVING AND AUTHORIZING
EXECUTION OF A SETTLEMENT AG~.~T AND MUTUAL RE~.~RSE 14~DE BY AND BETWEEN COUNTY
OF MOHAVE, STATE OF ARIZONA, AND BANK OF AMERICA NT&SA, A NATIONAL TRUST AND
SAVINGS ASSOCIATION.
WHEREAS, in County of Mohave v. Bank of America, NT&SA, originally Mohave
County Superior Court Case No. CV-97-568, and currently Maricopa County
Superior Cou~t Case No. ·98-04813 (the "Lawsuit"), Mohave County, Ari~?na, (the
"County" or "Mohave County") asserted certain claims agaihst Bank of America
NT&SA (the "Bank" and the Bank asserted certain claims against the County;
and
WHEREAS, the County has denied the claims asserted against it by the
Bank, and the Bank has denied the claims asserted against it by the County;
and
WHEREAS, the County and the Bank desire to settle and resolve all claims
they have or claim to have against each other; and
WHER~S, A.R.S. ~ 11-251(14) authorizes the Mohave County Board of
Supervisors to direct, control, and compromise any lawsuits to which the
'County is a party; and
WHEREAS, the Mohave County Board of Supervisors finds that the public
interest and welfare will be furthered by the action taken hereby;
NOW, THEREFORE, BE IT RESOLVED THaT the Mohave County Board of
Supervisors hereby approves and authorizes execution of the attached
Settlement Agreement and Mutual Release.
BE IT FURTHER RESOLVED THAT anyone of the following persons is/are
authorized: (1) to sign on behalf of Mohave county the settlement Agreement
and Mutual Release and any other documents necessary to conclude the
settlement set forth in that Settlement Agreement and Mutual Release; and (2)
to take such other and further actions as are necessary to conclude the
settlement:
(a) James R. Zaborsky, Chairman of the Board of Supervisors; and
(b) Paul McIntosh, Mohave County Manager.
PASSED APPROVED, AND ADOPTED this ~']~4 day of December, 1998.
MOHAVE COUNTY, ARIZONA, a political
subdivision of the State of Arizona,
by and through the MOHAVE COUNTY
BOARD OF SUPERVISORS
By:
JAME ~
BOAR~~v±~~
ATTEI APPROVED AS TO FORM:
JENNINGS, STROUSS & SALMON, P.L.C.
of the
of Supervisors ATTORNEY FOR MOHAVE COUNTY,
ARIZONA
SETTLEMENT AGREE.M_.ENT A_ND I%,IUTUAL RELEASE
: This Agreement m~e by and betWeen County of Mohave, 'S~ie of Arizona
(h~¢aftor "CountY"), and Bank of America NT&SA, a National Trust and Savings Association
(hereafter "Ba~'):
DeVmitions:
The following terms are specifically daf:mad for this Agreement:
A. "Agreement" shall me~n this Settlement Agreement and Mutual Release.
B. "Lawsuit" shall mean that action filed by the County on or about NoYemb~r
4, 1997, against the Batik bearing Case No. CV 97-565 and the counterclaim fil',A by ibc Bank
against the County in said action.
C. "Claim", or "claims" means all rights, claims, demands, causes of action,
and rights of recoupment, offset andc'or reimbursement of any kind or nature whatsoever, whether
known or unlmown, liquidated or unliquidated, asserted or unassorted, or matured or um-naturefl,
and Whether based on any contractual, tort, equitable, common law, restitution, staV.~tory or other
ground or theory of any nature whatsoever, which in any way directly or indirectly arise out of
or arc related or connected to (i) the Lawsuit, (ii)' any account mah-.tained at the l~k by b!icha;l
E. Daw in his personal or fiduciary capacity, (iii) any account mainLaine, d at the Ba.'~k by he
County within tho description of a~counts s~t for'& in ~ubparalraph (ii) of this paragraph C, (iv)
an)' act, fact, allegation, in/'eronce, omission, d.r o¢cm'Tence which is described in any pleading,
brief, di~ovcry, or other writing filed i~ or' related to the Lawsuit, (v) Michael E. Daw's
employment by the County, and (vi) an)' ¢lain~ by an), client, ward, estate, or the successor to,
or beneficiary of, any client, ward, or ¢$tai¢, whose a~sets or funds may have been entrusted to
or placed under the control or direction of the Mohav¢ County Public Fiducizry's office during
Michael E. Daw'$ tenure.
Recitals:
Whereas, th~ County has asserl~ cer~i- claims against Ba~k in the Lawsuit a~d
the g~ Ms ~sen~d ce~ain cl~s ag~i~gl ~ Co~ty ~ ~e Lag'~l;
~, B~ h~ d~ ~e claims md dem~ds ~s~ed agog it by L~e
CounW, ~d ~e Counu h~ de~ ~e c]~s ~d dem,nds ~s~ ~a~g it by ~e Bm-X; ~nd
~oreas, ~e p~ie~ hereto desire to ~ttle ~d rcsolvv ail ~s~ ~d ~s~ed
claims ~d dcm~ ~cy have or cla~ to hav~ ag~ ~c other;
NOW THEi:~FORE, in full and complete satisfaction and settlement of all Claims
thc County may have or claim to have against the Bank, and in full and complete satisfaction of
all Claims the Bank may have or claim to have against the County, .the parties hereto agree
follows:
1. Bank shall pa)' to the County the sum of II~ee-Hunckecl Sevent-y-Five
Thous~tt Dollars ($3?5,000) by way of the Bank's check payable to "Mohave County, Arizona"
pursuant to these express written instructions within thirty (30) days from the execution of this
Agreement by the County provided tha~. the County delivers [o thc Bank's cou~el a counterpart
of this Agreement containing a genuine original signature by the Count'! official authoriz~ to
execute tl~s Ag~'eemcnt.
2. The Bank hereby releases and discharges an), and all Cla~,s it may have
or claim to have against County, ~nd all of its past, present, and future employees, officers,
elected officials, attorneys, agents or representatives.
3. County hereby releases and di~hurges an}, and all Clainas' it may have or
claim to have against the Bank, and all of its pa~t, present and future officers, directors,
shareholders, employees, agents, a~omey$, predecessors in interest, successors in interest,
corporations, subsidiaries and affiliated or sibling corporations (collectively, the "Bank's
Affiliates").
4. Tho County represents that the Mohave County Board of Super-,'isors has
approved this Agre~n~r~t as to form and content. The County ftuther a~ees tha it will deliver
to the Bank's counsel within thirty (30) days~, from~ the ex~ution of this Agr~raent a certiti~xi
copy of a resolution from the Mohave County Board of Supervisors approving this Agreement
as to form and content and authorizing a Cotlnty official to execute this Agreement.
5. The County shall hold harmless and inder~ify the Bank and the Bank's
Affiliates from any Claim made by any client, w~r~ or estate, or the successor to, or.bene?ci?
of, any client, ward or e,vtate, whose ass¢~ or funds may have been entrusted to or placec~ unaer
the control or clirectiort of the Mohave County Pubhc Fiduciary during Michael E. Daw's tenure.
The County ~hall also at its sole expense defend the Bank and the B~l<ts Affiliates from any
such Claims, with coun~l reasonably ac¢~table to the Bank.
6. The County represents and warrants that it was authorized to pursue thc
Lawsuit in the nane of the County, and to enter into this Agreement and compromise these
Claims.
7. The County and the Bank, and each of them, will dismiss all claims
asier~ed against each oth~r in the Lawsult~ with prejudice, each party to psy their own costs and
a~tomey's fees relating thereto.
8. Each of the parties hereto acknowledges thl~ none of th~ parties hereto in
any way admit~ by this Agreement ttmt it is liable to any other party hereto, or at all, it being
acknowledged that each pa.,'ty's promises, covenants, and releases set forth herein are in
consideration of this settlement and are given for the purpose of avoiding the disruption and
expense of continued legal proce~lings.
9. This Agreement ehali be ~onsmied and enfOrced in aCCOrdance With the
laws of thc ¢.~tc of Arizona. Any action to caforcc any provision of this Agreement shill be
filed in Mariccpa County, Arizona, Superior Court,
10. This Agreement shall be binding on the parties hereto, their vaceessor~ and
a~signs.
11. The parties hereto repre$--nt, certify, and acknowledge that they are awar=
that they may hereafter discover facts iu addition to or different from those which they know or
believe to be true with respect to the subject matter herein, but tl~ it is their intention hereby
fully, finally, and forever to ~¢ttle and release any and all disputes and differences about the
subject matter herein which now exist, may exist, or heretofore have existed between them. In
fnrtheranee of such intention, each of the parties hereto acknowledges that the releases herein
given shall be and shall remain in effect with respect to all matters contained herein
notwithstanding thc discover/or existence of any additional or different fa~ts.
l 1. This Agreement may be executed in one or morc counterparts, each of
which together shall be deemed to be an or~g,n~l and all of which together shall be deemed to
be one and the same instrument; and this Ag-cement shall he~ome effective upon its execution
by al1 panics.
AGREED TO:
COUNTY OF MOHAVE, ARIZONA
By:
Title:
BANK Ot; AMBRICA, N'I&SA
By;
Title:
D~c:
Approved as to form and COntent:
NJ Warner Lc~ Michael G. H.-lras
Attorney for B~nk of Amides, lq'I'&SA Attorney for Mob. ave Coun.ty