Resolution No. 100201
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RESOLUTION NO. 10,020
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
SETTLEMENT AND MUTUAL RELEASE AGREEMENT BY AND
BETWEEN THE CITY OF VERNON AND LEONIS C. MALBURG
WHEREAS, on May 26, 2009, the City of Vernon -filed a,civil
action entitled City of Vernon v. Leonis C. Malburg, LASC No. BC
414511 (the "Malburg Litigation") seeking to recover $1,486,548.46 in
attorney's fees and costs which were erroneously paid by the City to
Loeb & Loeb; and
WHEREAS, the City and Leonis C. Malburg ("Malburg") desire
to settle the Malburg Litigation wherein Malburg will repay the City
the total amount of $1,486,548.46 over a period of six years with the
City waiving payment of interest.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Settlement and Mutual Release Agreement with Malburg; in
substantially the same form as the copy which is attached hereto as
Exhibit A and incorporated by reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes.the City Administrator to execute said Agreement for, and
on behalf of, the City of Vernon and the City Clerk, or Deputy City
Clerk, is hereby authorized to attest thereto.
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SECTION 4: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to make whatever
nonsubstantive, administrative and/or text changes, upon advice of
counsel, to the Agreement.
SECTION 5: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to execute any and
all documents necessary for the purpose of implementing the Agreement
and to take any action deemed necessary to implement and carry out the
terms and conditions of the Agreement.
SECTION 6: The City Council of the City of Vernon hereby
directs the City Clerk, or her designee, to send a fully executed
Agreement to Leonis C. Malburg.
SECTION 7: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 13th day of July, 2009.
ATTEST:
lutcz�j -
MANUELA GIRON, Ci y Clerk
Hilario Gonzales
Name:
Title: Mayor / Mayor Pro-Tem
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
certify that the foregoing Resolution, being Resolution No. 10020, was
duly adopted by the City Council of the City of Vernon at regular
meeting of the City Council duly held on Monday, July 13, 2009, and
thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of
Vernon.
(SEAL)
I#
ANUELA GIRON, C'ty Clerk
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EXEMIT A
SETTLEMENT AGREMENT
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This Settlement and Mutual Release Agreement (the "Agreement") is entered into and is
effective as of July 3, 2009 and shall become effective on the "Effective Date" (as defined in
Section 7.9 below) and is made by and between Leonis C. Malburg, an individual ("Malburg"),
on the"one hand, and the City of Vernon, a California Charter City ("Vernon"), on the other
hand. Malburg and Vernon are sometimes referred to herein individually as a "party" and
collectively as the "parties."
RECITALS
Whereas, on May 26, 2009 Vernon filed a civil action against Malburg in Los Angeles
County Superior Court, entitled City of Vernon v. Leonis C. Malburg, Case No. BC414511, (the
"Civil Action") asserting various claims against Malburg in the Complaint (the "Complaint")
seeking to recover the sum of $1,486,548.46 in attorneys fees and costs which Vernon claims
was mistakenly paid on Malburg's behalf;
Whereas, Malburg denies the allegations asserted in Vernon's Complaint; and
Whereas, the parties now agree that it is in their individual and collective best interest to
settle and resolve all disputes, claims or charges, that may exist between them in any way
relating to or arising out of the facts alleged in the Civil Action as of the Effective Date in
accordance with the terms and conditions set forth herein.
AGREEMENT
Now, therefore, in consideration of the recitals above and the mutual promises,
conditions and covenants set forth below, and other good and valuable consideration which the
parties acknowledge the receipt and adequacy of, the parties hereto agree as follows:
ARTICLE I
DISMISSAL OF CIVIL ACTION AND WITHDRAWAL OF CPRA REQUEST
1.1 Vernon agrees to dismiss the Civil Action with prejudice within three (3) business
days after the execution and approval of this Agreement and Malburg making the first payment
as described more particularly described below. The parties shall bear their own costs and
attorney's fees in connection with the Civil Action.
1.2 Counsel for Vernon shall file the fully executed Request For Dismissal within two
(2) business days after this Agreement and the Request for Dismissal have been executed by all
parties, and shall promptly provide a conformed copy of both the filed request and notification
by the court that the dismissal has been entered to Malburg's counsel at the address set forth
below.
1.3 Malburg agrees that, in light of this settlement, he shall direct his counsel, Loeb &
Loeb, to withdraw the California Public Records Act Request dated June 5, 2009 and that such
request shall automatically be deemed withdrawn on the Effective Date.
SETTLEMENT AGREMENT
ARTICLE II
REIMBURSEMENT OF FEES
2.1 As partial consideration for this Agreement and subject to the provisions of this
Article II, Malburg agrees to reimburse Vernon the amount of ONE MILLION FOUR
HUNDRED EIGHTY SIX THOUSAND FIVE HUNDRED FORTY EIGHT DOLLARS AND
FORTY-SIX CENTS ($1,486,548.46) (the "Reimbursement Amount") in twenty-four (24)
installments and on the terms and subject to the conditions of this Article I1.
2.2 Within two (2) business days after the Vernon City Council has approved this
Agreement, Malburg shall pay to Vernon the sum of $61,939.52. Thereafter, Malburg shall
make twenty-three (23) additional payments to Vernon the ("Periodic Payment"). The first
twenty-two (22) Periodic Payments shall be in the amount of $61,939.52 and the final payment
shall be in the amount of $61,939.50. The Periodic Payments shall be due on each succeeding
September 30, December 31, March 30 and June 30 (the "Periodic Payment Dates") or the first
business day thereafter if such Periodic Payment Date shall fall on a weekend or holiday.
2.3 If Malburg fails to pay in full any overdue Periodic Payment within ten (10) days
after written notice of such overdue Periodic Payment from Vernon, then the balance due on the
entire outstanding Reimbursement Amount shall immediately become due and payable. In
addition, thereafter, interest on the unpaid balance of the Reimbursement Amount shall
commence accruing at the annual rate of ten percent (10%), compounded annually, until all such
amounts have been paid in full.
ARTICLE III
NO OTHER AMOUNTS OWED; NO ADMISSION
3.1 Vernon, on the one hand, and Malburg, on the other hand, each acknowledge and
agree that the Reimbursement Amount and other consideration provided for herein shall
constitute the sole, entire, maximum, and only obligation, financial or otherwise, of Malburg, on
the one hand, and Vernon, on the other hand, to each other in connection with the facts recited in
the Civil Action or under this Agreement.
3.2 The parties each agree that neither this Agreement nor the execution or
performance of any terms of this Agreement shall constitute or be construed as an admission of
any liability whatsoever or any wrongdoing by any party to the other.
ARTICLE IV
MUTUAL RELEASES
4.1 For a valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and except as specifically set forth in Article II above and Section 4.3 below,
4.1.1 Vernon does hereby release and forever discharge Malburg and all of his
successors, agents, representatives, employees, trusts, trustees, heirs, assigns, past and
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SETTLEMENT AGREMENT
present, and their attorneys, and all persons acting by, through, under or in concert with
them or any of them, of and from any and all manner of action or actions, cause or causes
of action, in law or in equity for indemnity or otherwise, suits; debts, liens, contracts,
agreements, promises, liabilities, claims, demands, damages, losses, costs, or expenses, of
any nature whatsoever, known or unknown, fixed or contingent (hereinafter called
"Claims"), which Vernon now has or may hereafter have against Malburg by reason of
any matter, cause or thing whatsoever in any way relating to or arising out of the facts
recited in the Civil Action.
4.1.2 Malburg, on behalf of himself and his successors, agents, representatives,
employees, trusts, trustees, heirs, and assigns, does hereby release and forever discharge
Vernon, and all of its predecessors, successors, agents, representatives, elected officials,
appointed officials, contractors, employees, trusts, trustees, assigns, past and present, and
their attorneys, and all persons acting by, through, under or in concert with them or any
of them, of and from any and all manner of action or actions, cause or causes of action, in
law or in equity for indemnity or otherwise, suits, debts, liens, contracts, agreements,
promises, liabilities, claims, demands, damages, losses, costs, or expenses, of any nature
whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which
Malburg now has or may hereafter have against Vernon, by reason of any matter, cause
or thing whatsoever in any way relating to or arising out of the facts recited in the Civil
Action.
4.2 Without limiting the generality of the foregoing, the Claims released herein
include, but are not limited to, the (i) Claims alleged in the Complaint; (ii) Claims which could
have been alleged in the Civil Action by Cross -Complaint or otherwise; (iii) any property,
contract or tort claims, including breach of contract, breach of the covenant of good faith and fair
dealing, rescission, reformation, retaliation, intentional or negligent infliction of emotional
distress, tortious interference with contract or existing or prospective economic advantage,
negligence, fraud, misrepresentation, invasion of privacy, defamation, loss of consortium, breach
of fiduciary duty, violation of public policy, conversion, assault, battery, or any other common
law claim of any kind by reason of any matter, cause or thing whatsoever in any way relating to
or arising out of the facts recited in the Civil Action; (iv) any alleged violation of the laws
relating to municipal governance of any jurisdiction by reason of any matter, cause or thing
whatsoever in any way relating to or arising out of the facts recited in the Civil Action; (v) any
alleged violation of federal or state tax laws by reason of any matter, cause or thing whatsoever
in any way relating to or arising out of the facts recited in the Civil Action; (vi) any Claim
arising under any local, state or federal statute or principle of common law in any way relating to
the facts recited in the Complaint; and (vii) any Claim of conspiracy to commit or aiding and
abetting any of the foregoing.
4.3 Notwithstanding anything to the contrary set forth above, the parties expressly
acknowledge and agree that the releases contained in this Article IV are not intended to apply to
the obligations and representations of the parties set forth in this Agreement.
4.4 The parties represent and warrant that there has not been any assignment or other
transfer of any interest in any of the released Claims and there will be no assignment or other
transfer of any interest in any of the released Claims. The parties agree to indemnify and hold
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SETTLEMENT AGREMENT
their respective releasees, and each of them, harmless from any liability, claims, demands, costs,
expenses and attorneys' fees incurred by such releasees, or any of them, as a result of any person
asserting any such assignment or transfer or any rights to Claims under any such assignment or
transfer.
4.5 The parties agree that if they hereafter commence, join in, or in any manner seek
relief against any of their respective releasees hereunder through any suit arising out of, based
upon, or relating to any of the Claims released hereunder or in any manner, assert against such
releasees, or any of them, any of the Claims released hereunder, then the offending party shall
pay in addition to any other damages caused thereby, all attorneys' fees and costs incurred by
such releasees in defending or otherwise responding to said suit or claim.
ARTICLE V
DISPUTE RESOLUTION
5.1 The parties further agree that all disputes in any way relating to or arising out of
this Agreement including, but not limited to, the interpretation, enforcement or implementation
of this Agreement shall be presented for arbitration pursuant to the provisions of California
Code of Civil Procedure § § 1281 et seq. before a retired state or federal court judge as the as the
sole and exclusive remedy for resolving such disputes.
5.2 The parties agree that in all proceedings under this Article V (a) they shall be
entitled to conduct such reasonable discovery as the arbitrator may allow; (b) the arbitrator shall
be entitled to award the full range of relief as would be available to the prevailing party in a court
of law; (c) the arbitrator shall determine the scope of his jurisdiction and all issues concerning
the arbitrability of disputes; (d) the arbitrator shall issue a reasoned decision; and (e) the decision
of the arbitrator shall be final and binding on each of the parties. The prevailing party in any
arbitration under this Agreement shall be entitled to recover its attorneys' fees and costs from the
other party, except that each party shall be responsible for its pro rata share of the arbitrator's fee
notwithstanding its status as a prevailing or non -prevailing party. The parties agree that any such
arbitration shall take place in Los Angeles County in the State of California.
5.3 If any party to this Agreement brings a judicial action to enforce rights hereunder,
such action shall be barred as a result of the exclusive remedy provided in this Article V, and the
prevailing party in any such action, including with respect to seeking dismissal thereof, shall be
entitled to recover its costs and expenses, including reasonable attorneys' fees, incurred in
connection with such lawsuit.
C!
SETTLEMENT AGREMENT
5.4 THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT BY
SELECTING ARBITRATION AS THE SOLE AND EXCLUSIVE REMEDY FOR
RESOLVING ALL DISPUTES AMONG THEM AS CONTEMPLATED BY THIS ARTICLE
V, THEY ARE WAIVING THEIR RIGHT TO A JURY TRIAL TO WHICH THEY MAY
OTHERWISE BE ENTITLED.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Vernon represents and warrants to Malburg as follows:
6.1.1 Other than the Civil Action, it has not commenced and/or is not a party to
any other civil action or other legal proceeding against Malburg, or any of them; and
6.1.2 That (a) it has had the opportunity to consult with counsel regarding the
meaning and effect of this Agreement; (b) this Agreement has been duly executed and
delivered; and (c) this Agreement is a valid and binding obligation enforceable against
each Vernon in accordance with its terms.
6.2 Malburg represents and warrants to Vernon as follows:
6.2.1 Other than the Civil Action, he is not a party to any other civil action or
other legal proceeding against Vernon; and
6.2.2 That (a) he has had an opportunity to consult with counsel regarding the
meaning and effect of this Agreement; (b) he fully understands the provisions of this
Agreement and their effect; (c) he is signing this Agreement voluntarily and free from
duress; (d) he has all necessary authority to enter into this Agreement; (e) this Agreement
has been duly executed and delivered; and (f) this Agreement is a valid and binding
obligation enforceable against him in accordance with its terms.
ARTICLE VII
MISCELLANEOUS
7.1 This Agreement shall not be subject to attack on the ground that any or all of the
legal theories or factual assumptions used for negotiating purposes are for any reason inaccurate
or inappropriate.
7.2 This Agreement represents the sole and entire agreement among the parties and
supersedes all prior agreements, negotiations, and discussions between the parties hereto and/or
their representatives. Any amendment to this Agreement must be in writing specifically
referring to this Agreement and signed by duly authorized representatives of all of the parties
hereto.
7.3 This Agreement shall be construed as a whole in accordance with its fair meaning
and the laws of the State of California. The parties agree that they have jointly participated in
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SETTLEMENT AGREMENT
the negotiation and drafting of this Agreement. The parties agree that the language of this
Agreement shall not be construed for or against any particular party.
7.4 The provisions of this Agreement are severable. If any provision is held to be
invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.
7.5 This Agreement is binding upon and shall inure to the benefit of any and all heirs,
successors and assigns of any of the parties.
7.6 Each of the parties will bear its own costs and expenses, including legal fees,
incurred in connection with the negotiation of this Agreement.
7.7 All notices, requests, demands and other communications which are required or
may be given under this Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered; the day after it is sent, if sent for next day delivery
to a domestic address by recognized overnight delivery service (e.g., Federal Express); upon
receipt, if sent by certified or registered mail, return receipt requested; and upon confirmed
transmission if sent by telecopier. In each case notice shall be sent to:
If to Vernon:
City Attorney
City of Vernon
4305 Santa Fe Avenue
Los Angeles, CA 90058,
Telephone: (323) XXX-XXXX
Facsimile: (323) XXX-XXXX
With a copy to:
Latham & Watkins LLP
355 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 485-1234
Facsimile: (213) 891-8763
Attention: Russell F. Sauer
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SETTLEMENT AGREMENT
If to Malburg:
Leonis C. Malburg
XXXXX
Telephone: (XXX) XXX XXXX
Facsimile: (XXX) XXX XXXX
With a copy to:.
Loeb & Loeb LLP
10100 Santa Monica Boulevard
Suite 2200
Los Angeles, CA 90067
Telephone: (310) 282-2000
Facsimile: (310) 282-2200
Attention: Anthony Murray
or to such other person or address as any party hereto shall furnish to the other party hereto in
writing pursuant to this section.
7.8 This Agreement may be executed by facsimile signatures and in one or more
counterparts, each of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
7.9 This Agreement is subject to the approval of the Vernon City Council. This
Agreement shall become effective after it has been signed by all parties, approved of by the
Vernon City Council and the First Installment has been paid (the "Effective Date").
Accepted and agreed to:
LEONIS C. MALBURG
Leonis C. Malburg
Dated: July_, 2009
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THE CITY OF VERNON
By: DONAL O'CALLAGHAN
Its City Administrator
BY:
Donal O'Callaghan
City Administrator
Dated: July_, 2009
CITY CLERK'S OFFICE
INTEROFFICE MEMORANDUM
DATE: July 13, 2009
T01 Donal O'Callaghan, City Administrator
FRO Nelly Giron, City Clerk
RE: Resolution No. 10,020 - A Resolution of the City
Council of the City of Vernon Approving and
Authorizing the Execution of a Settlement and Mutual
Release Agreement By and Between the City of Vernon
and Leonis C. Malburg
Transmitted herewith is a copy of Resolution No. 10,020, as
referenced above, which was approved by City Council on July 13,
2009, and two Settlement and Mutual Release Agreements to be
signed by the proper parties.
Please ensure that one fully executed agreement is returned to
the City Clerk's Office.
Thank you.
NG:dj
c: Resolution No. 10,020
Agreement 09-100
RECEIVED
JUL 0 8 2009 APPROVED JUL 13 '09 CITY COUNCIL
CITY CLERK'S OFFICE STAFF REPORT CITY CLERK DI TTF41BUTION
CITY ADMINISTRATION DEPARTMEN
DATE: July 8, 2009 m.
TO: Honorable Mayor and City Council
FROM: Donal O'Callaghan, City Administrator
RE: Settlement and Mutual Release Agreement\
City of Vernon v. Leonis C. Malburg
At its meeting on May 18, 2009, Council authorized city staff to engage legal counsel to
bring a civil action against Leonis C. Malburg to recover amounts owed to the City
arising from the fact that the City had in prior years mistakenly paid $1,486,548.46 in
attorney's fees and costs on Mr. Malburg's behalf.
Pursuant to the Council's authorization, on May 26, 2009, the City filed a civil action in
the Los Angeles County Superior Court, entitled City of Vernon v. Leonis C. Malburg,
Case No. BC414511, seeking recovery from Mr. Malburg of $1,486,548.46 plus certain
pre- and post -judgment interest.
have had several conversations with Mr. Malburg on this matter. On July 1st and 2"d ,
2009, Mr. Malburg stated directly to me that he agrees to settle with the City by paying
$1,486,548.46 to the City over a period of six years in quarterly installments provided
that the City waived any claim for interest. As of this date, Mr. Malburg has also .
informed me that that he has instructed his attorneys at Loeb & Loeb to stop and desist
all actions on this case.
At my request, counsel for the City drafted a Settlement and Mutual Release Agreement
(reference Exhibit A attached), a copy of which has been delivered to Mr. Malburg. The
draft has not yet been reviewed by Mr. Malburg's counsel.
Pursuant to the Settlement and Mutual Release Agreement, Mr. Malburg would be
obligated to repay the sum of $1,486,548.46 over six years without interest and each
party would release the other from all claims on this civil action.
Honorable Mayor and City Council
July 8, 2009
Page 2
Recommendation
Although the City would give up a claim for interest, by entering into such a settlement,
the City would resolve the matter (avoiding further diversion of Council and Staff
resources) and would avoid the expenditure of significant legal fees (for which the City
would have no right to recover from Mr. Malburg even as a prevailing party).
It is recommended that the Council approve the Settlement and Mutual Release
Agreement and authorize the City Administrator to make whatever substantive changes
to the Settlement and Mutual Release Agreement that are necessary to effectuate the
intent of the parties.
DO:rmt
Attachment
SETTLEMENT AGREMENT
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This Settlement and Mutual Release Agreement (the "Agreement") is entered into and is
effective as of July 3, 2009 and shall become effective on the "Effective Date" (as defined in
Section 7.9 below) and is made by and between Leonis C. Malburg, an individual ("Malburg"),
on the'one hand, and the City of Vernon, a California Charter City ("Vernon"), on the other
hand. Malburg and Vernon are sometimes referred to herein individually as a "party" and
collectively as the "parties."
RECITALS
Whereas, on May 26, 2009 Vernon filed a civil action against Malburg in Los Angeles
County Superior Court, entitled City of Vernon v. Leonis C. Malburg, Case No. BC414511, (the
"Civil Action") asserting various claims against Malburg in the Complaint (the "Complaint")
seeking to recover the sum of $1,486,548.46 in attorneys fees and costs which Vernon claims
was mistakenly paid on Malburg's behalf;
Whereas; Malburg denies the allegations asserted in Vernon's Complaint; and
Whereas, the parties now agree that it is in their individual and collective best interest to
settle and resolve all disputes, claims or charges, that may exist between them in any way
relating to or arising out of the facts alleged in the Civil Action as of the Effective Date in
accordance with the terms and conditions set forth herein.
AGREEMENT
Now, therefore, in consideration of the recitals above and the mutual promises,
conditions and covenants set forth below, and other good and valuable consideration which the
parties acknowledge the receipt and adequacy of, the parties hereto agree as follows:
ARTICLE I
DISMISSAL OF CIVIL ACTION AND WITHDRAWAL OF CPRA REQUEST
1.1 Vernon agrees to dismiss the Civil Action with prejudice within three (3) business
days after the execution and approval of this Agreement and Malburg making the first payment
as described more particularly described below. The parties shall bear their own costs and
attorney's fees in connection with the Civil Action.
1.2 Counsel for Vernon shall file the fully executed Request For. Dismissal within two
(2) business days after this Agreement and the Request for Dismissal have been executed by all
parties, and shall promptly provide a conformed copy of both the filed request and notification
by the court that the dismissal has been entered to Malburg's counsel at the address set forth
below.
1.3 Malburg agrees that, in light of this settlement, he shall direct his counsel, Loeb &
Loeb, to withdraw the California Public Records Act Request dated June 5, 2009 and that such
request shall automatically be deemed withdrawn on the Effective Date.
SETTLEMENT AGREMENT
ARTICLE II
REIMBURSEMENT OF FEES
2.1 As partial consideration for this Agreement and subject to the provisions of this
Article II, Malburg agrees to reimburse Vernon the amount of ONE MILLION FOUR
HUNDRED EIGHTY SIX THOUSAND FIVE HUNDRED FORTY EIGHT DOLLARS AND
FORTY-SIX CENTS ($1,486,548.46) (the "Reimbursement Amount") in twenty-four (24)
installments and on the terms and subject to the conditions of this Article II.
2.2 Within two (2) business days after the Vernon City Council has approved this
Agreement, Malburg shall pay to Vernon the sum of $61,939.52. Thereafter, Malburg shall
make twenty-three (23) additional payments to Vernon the ("Periodic Payment"). The first
twenty-two (22) Periodic Payments shall be in the amount of $61,939.52 and the final payment
shall be in the amount of $61,939.50. The Periodic Payments shall be due on each succeeding
September 30, December 31, March 30 and June 30 (the "Periodic Payment Dates") or the first
business day thereafter if such Periodic Payment Date shall fall on a weekend or holiday.
2.3 If Malburg fails to pay in full any overdue Periodic Payment within ten (10) days
after written notice of such overdue Periodic Payment from Vernon, then the balance due on the
entire outstanding Reimbursement Amount shall immediately become due and payable. In
addition, thereafter, interest on the unpaid balance of the Reimbursement Amount shall
commence accruing at the annual rate of ten percent (10%), compounded annually, until all such
amounts have been paid in full.
ARTICLE III
NO OTHER AMOUNTS OWED; NO ADMISSION
3:1 Vernon, on the one hand, and Malburg, on the other hand, each acknowledge and
agree that the Reimbursement Amount and other consideration provided for herein shall
constitute the sole, entire, maximum, and only obligation, financial or otherwise, of Malburg, on
the one hand, and Vernon, on the other hand, to each other in connection with the facts recited in
the Civil Action or under this Agreement.
3.2 The parties each agree that neither this Agreement nor the execution or
performance of any terms of this Agreement shall constitute or be construed as an admission of
any liability whatsoever or any wrongdoing by any party to the other.
ARTICLE IV
MUTUAL RELEASES
4.1 For a valuable consideration; the receipt and adequacy of which is hereby
acknowledged, and except as specifically set forth in Article II above and Section 4.3 below,
4.1.1 Vernon does hereby release and forever discharge Malburg and all of his
successors, agents, representatives, employees, trusts, trustees, heirs, assigns, past and
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SETTLEMENT AGREMENT
present, and their attorneys, and all persons acting by, through, under or in concert with
them or any of them, of and from any and all manner of action or actions, cause or causes
of action, in law or in equity for indemnity or otherwise, suits, debts, liens, contracts,
agreements, promises, liabilities, claims, demands, damages, losses, costs, or expenses, of
any nature whatsoever, known or unknown, fixed or contingent (hereinafter called
"Claims"), which Vernon now has or may hereafter have against Malburg by reason of
any matter, cause or thing whatsoever in any way relating to or arising out of the facts
recited in the Civil Action.
4.1.2 Malburg, on behalf of himself and his successors, agents, representatives,
employees, trusts, trustees, heirs, and assigns, does hereby release and forever discharge
Vernon, and all of its predecessors, successors, agents, representatives, elected officials,
appointed officials, contractors, employees, trusts, trustees, assigns, past and present, and
their attorneys, and all persons acting by, through, under or in concert with them or any
of them, of and from any and all manner of action or actions, cause or causes of action, in
law or in equity for indemnity or otherwise, suits, debts, liens, contracts, agreements,
promises, liabilities, claims, demands, damages, losses, costs, or expenses, of any nature
whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which
Malburg now has or may hereafter have against Vernon, by reason of any matter, cause
or thing whatsoever in any way relating to or arising out of the facts recited in the Civil
Action.
4.2 Without limiting the generality of the foregoing, the Claims released herein
include, but are not limited to, the (i) Claims alleged in the Complaint; (ii) Claims which could
have been alleged in the Civil Action by Cross -Complaint or otherwise; (iii) any property,
contract or tort claims, including breach of contract, breach of the covenant of good faith and fair
dealing, rescission, reformation, retaliation, intentional or negligent infliction of emotional
distress, tortious interference with contract or existing or prospective economic advantage,
negligence, fraud, misrepresentation, invasion of privacy, defamation, loss of consortium, breach
of fiduciary duty, violation of public policy, conversion, assault, battery, or any other common
law claim of any kind by reason of any matter, cause or thing whatsoever in any way relating to
or arising out of the facts recited in the Civil Action; (iv) any alleged violation of the laws
relating to municipal governance of any jurisdiction by reason of any matter, cause or thing
whatsoever in any way relating to or arising out of the facts recited in the Civil Action; (v) any
alleged violation of federal or state tax laws by reason of any matter, cause or thing whatsoever
in any way relating to or arising out of the facts recited in the Civil Action; (vi) any Claim
arising under any local, state or federal statute or principle of common law in any way relating to
the facts recited in the Complaint; and (vii) any Claim of conspiracy to commit or aiding and
abetting any of the foregoing.
4.3 Notwithstanding anything to the contrary set forth above, the parties expressly
acknowledge and agree that the releases contained in this Article IV are not intended to apply to
the obligations and representations of the parties set forth in this Agreement.
4.4 The parties represent and warrant that there has not been any assignment or other
transfer of any interest in any of the released Claims and there will be no assignment or other
transfer of any interest in any of the released Claims. The parties agree to indemnify and hold
3
SETTLEMENT AGREMENT
their respective releasees, and each of them, harmless from any liability, claims, demands, costs,
expenses and attorneys' fees incurred by such releasees, or any of them, as a result of any person
asserting any such assignment or transfer or any rights to Claims under any such assignment or
transfer.
4.5 The parties agree that if they hereafter commence, join in, or in any manner seek
relief against any of their respective releasees hereunder through any suit arising out of, based
upon, or relating to any of the Claims released hereunder or in any manner, assert against such
releasees, or any of them, any of the Claims released hereunder, then the offending party shall
pay in addition to any other damages caused thereby, all attorneys' fees and costs incurred by
such releasees in defending or otherwise responding to said suit or claim.
ARTICLE V
DISPUTE RESOLUTION
5.1 The parties further agree that all disputes in any way relating to or arising out of
this Agreement including, but not limited to, the interpretation, enforcement or implementation
of this Agreement shall be presented for arbitration pursuant to the provisions of California
Code of Civil Procedure §§ 1281 et seq. before a retired state or federal court judge as the as the
sole and exclusive remedy for resolving such disputes.
5.2 The parties agree that in all proceedings under this Article V (a) they shall be
entitled to conduct such reasonable discovery as the arbitrator may allow; (b) the arbitrator shall
be entitled to award the full range of relief as would be available to the prevailing party in a court
of law; (c) the arbitrator shall determine the scope of his jurisdiction and all issues concerning
the arbitrability of disputes; (d) the arbitrator shall issue a reasoned decision; and (e) the decision
of the arbitrator shall be final and binding on each of the parties. The prevailing party in any
arbitration under this Agreement shall be entitled to recover its attorneys' fees and costs from the
other party; except that each party shall be responsible for its pro rata share of the arbitrator's fee
notwithstanding its status as a prevailing or non -prevailing party. The parties agree that any such
arbitration shall take place in Los Angeles County in the State of California.
5.3 If any party to this Agreement brings a judicial action to enforce rights hereunder,
such action shall be barred as a result of the exclusive remedy provided in this Article V, and the
prevailing party in any such action, including with respect to seeking dismissal thereof, shall be
entitled to recover its costs and expenses, including reasonable attorneys' fees, incurred in
connection with such lawsuit.
M
SETTLEMENT AGREMENT
5.4 THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT BY
SELECTING ARBITRATION AS THE SOLE AND EXCLUSIVE REMEDY FOR
RESOLVING ALL DISPUTES AMONG THEM AS CONTEMPLATED BY THIS ARTICLE
V, THEY ARE WAIVING THEIR RIGHT TO A JURY TRIAL TO WHICH THEY MAY
OTHERWISE BE ENTITLED.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Vernon represents and warrants to Malburg as follows:
6.1.1 Other than the Civil Action, it has not commenced and/or is not a party to
any other civil action or other legal proceeding against Malburg, or any of them; and
6.1.2 That (a) it has had the opportunity to consult with counsel regarding the
meaning and effect of this Agreement; (b) this Agreement has been duly executed and
delivered; and (c) -this Agreement is a valid and binding obligation enforceable against
each Vernon in accordance with its terms.
6.2 Malburg represents and warrants to Vernon as follows:
6.2.1 Other than the Civil Action, he is not a party to any other civil action or
other legal proceeding against Vernon; and
6.2.2 That (a) he has had an opportunity to consult with counsel regarding the
meaning and effect of this Agreement; (b) he fully understands the provisions of this
Agreement and their effect; (c) he is signing this Agreement voluntarily and free from
duress; (d) he has all necessary authority to enter into this Agreement; (e) this Agreement
has been duly executed and delivered; and (f) this Agreement is a valid and binding
obligation enforceable against him in accordance with its terms.
ARTICLE VII
MISCELLANEOUS
7.1 This Agreement shall not be subject to attack on the ground that any or all of the
legal theories or factual assumptions used for negotiating purposes are for any reason inaccurate
or inappropriate.
7.2 This Agreement represents the sole and entire agreement among the parties and
supersedes all prior agreements, negotiations, and discussions between the parties hereto and/or
their representatives. Any amendment to this Agreement must be in writing specifically
referring to this Agreement and signed by duly authorized representatives of all of the parties
hereto.
7.3 This Agreement shall be construed as a whole in accordance with its fair meaning
and the laws of the State of California. The parties agree that they have jointly participated in
5
SETTLEMENT AGREMENT
the negotiation and drafting of this Agreement. The parties agree that the language of this
Agreement shall not be construed for or against any particular party.
7.4 The provisions of this Agreement are severable. If any provision is held to be
invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.
7.5 This Agreement is binding upon and. shall inure to the benefit of any and all heirs,
successors and assigns of any of the parties.
7.6 Each of the parties will bear its own costs and expenses, including legal fees,
incurred in connection with the negotiation of this Agreement.
7.7 All notices, requests, demands and other communications which are required or
may be given under this Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered; the day after it is sent, if sent for next day delivery
to a domestic address by recognized overnight delivery service (e.g., Federal Express); upon
receipt, if sent by certified or registered mail, return receipt requested; and upon confirmed
transmission if sent by telecopier. In each case notice shall be sent to:
If to Vernon:
City Attorney
City of Vernon
4305 Santa Fe Avenue
Los Angeles, CA 90058
Telephone: (323) XXX-XXXX
Facsimile: (323) XXX-XXXX
With a copy to:
Latham & Watkins LLP
355 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 485-1234
Facsimile: (213) 891-8763
Attention: Russell F. Sauer
0
SETTLEMENT AGREMENT
If to Malburg:
Leonis C. Malburg
XXXXX
Telephone: (XXX) XXX XXXX
Facsimile: (XXX) XXX XXXX
With a copy to. -
Loeb & Loeb LLP
10100 Santa Monica Boulevard
Suite 2200
Los Angeles, CA 90067
Telephone: (310) 282-2000
Facsimile: (310) 282-2200
Attention: Anthony Murray
or to such other person or address as any party hereto shall furnish to the other party hereto in
writing pursuant to this section.
7.8 This Agreement may be executed by facsimile signatures and in one or more
counterparts, each of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
7.9 This Agreement is subject to the approval of the Vernon City Council. This
Agreement shall become effective after it has been signed by all parties, approved of by the
Vernon City Council and the First Installment has been paid (the "Effective Date").
Accepted and agreed to:
LEONIS C. MALBURG THE CITY OF VERNON
Leonis C. Malburg
Dated: July _, 2009
By: DONAL O'CALLAGHAN
Its City Administrator
By:
Donal O'Callaghan
City Administrator
Dated: July_, 2009
7
SETTLEMENT AGREMENT
Approved as to Form:
LOEB & LOEB LLP LATHAM & WATKINS LLP
By: By:
Anthony Murray. Russell F. Sauer, Jr.
Attorneys for Leonis C. Malburg Attorneys for City of Vernon
Dated: July , 2009 Dated: July , 2009
E:3
SETTLEMENT AGREMENT
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This Settlement and Mutual Release Agreement (the "Agreement") is entered into and is
effective as of July 3, 2009 and shall become effective on the "Effective Date" (as defined in
Section 7.9 below) and is made by and between Leonis C. Malburg, an individual ("Malburg"),
on the one hand, and the City of Vernon, a California Charter City ("Vernon"), on the other
hand. Malburg and Vernon are sometimes referred to herein individually as a "party" and
collectively as the "parties."
RECITALS
Whereas, on May 26, 2009 Vernon filed a civil action against Malburg in Los Angeles
County Superior Court, entitled City of Vernon v. Leonis C. Malburg, Case No. BC414511, (the
"Civil Action") asserting various claims against Malburg in the Complaint (the "Complaint")
seeking to recover the sum of $1,486,548.46 in attorneys fees and costs which Vernon claims
was mistakenly paid on Malburg's behalf;
Whereas, Malburg denies the allegations asserted in Vernon's Complaint; and
Whereas, the parties now agree that it is in their individual and collective best interest to
settle and resolve all -disputes, claims or charges, that may exist between them in any way
relating to or arising out of the facts alleged in the Civil Action as of the Effective Date in
accordance with the terms and conditions set forth herein.
AGREEMENT
Now, therefore, in consideration of the recitals above and the mutual promises,
conditions and covenants set forth below, and other good and valuable consideration which the
parties acknowledge,the receipt and adequacy of, the parties hereto agree as follows:
ARTICLE I
DISMISSAL OF CIVIL ACTION AND WITHDRAWAL OF CPRA REQUEST
1.1 Vernon agrees to dismiss the Civil Action with prejudice within three (3) business
days after the execution and approval of this Agreement and Malburg making the first payment
as described more particularly described below. The parties shall bear their own costs and
attorney's fees in connection with the Civil Action.
1.2 Counsel for Vernon shall file the fully executed Request For Dismissal within two
(2) business days after this Agreement and the Request for Dismissal have been executed by all
parties, and shall promptly provide a conformed copy of both the filed request and notification
by the court that the dismissal has been entered to Malburg's counsel at the address set forth
below.
1.3 'Malburg agrees that, in light of this settlement, he shall direct his counsel, Loeb &
Loeb, to withdraw the California Public Records Act Request dated June 5, 2009 and that such
request shall automatically be deemed withdrawn on the Effective Date.
1
LA\1.996763,1 07-13-2009
SETTLEMENT AGREMENT
ARTICLE II
REIMBURSEMENT OF FEES
2.1 As partial consideration for this Agreement and subject to the provisions of this
Article II, Malburg agrees to reimburse Vernon the amount of ONE MILLION FOUR
HUNDRED EIGHTY SIX THOUSAND FIVE HUNDRED FORTY EIGHT DOLLARS AND
FORTY-SIX CENTS ($1,486,548.46) (the "Reimbursement Amount") in twenty-four (24)
installments and on the terms and subject to the conditions of this Article IL
2.2ys after
A%Teetw.au, Malburg shall pay to Vernon the sum of $61,939,52. Thereafter, Malburg shall
make twenty-three (23) additional payments to Vernon the ("Periodic Payment"). The first
twenty-two (22) Periodic Payments shall be in the amount of $61,939.52 and the final payment
shall be in the amount of $61,939.50. The Periodic Payments shall be due on each succeeding
� December 31; March 30 and June 3 the "Periodic Payment Dates") or the first
�' business day thereafter if such Periodic Payment Date shall fall on a weekend or holiday. Fj P, _4 4l09Aft, 0XV)
,
2.3 If Malburg fails to pay in full any overdue Periodic Payment within ten (10) days
after written notice of such overdue Periodic Payment from Vernon, then the balance due on the
entire outstanding Reimbursement Amount shall immediately become due and payable. In
addition, thereafter, interest on the unpaid balance of the Reimbursement Amount shall
commence accruing at the annual rate of ten percent (1.0%), compounded annually, until all such
amounts have been paid in full.
ARTICLE III
NO OTHER AMOUNTS OWED; NO ADMISSION
3.1 Vernon, on the one hand, and Malburg, on the other hand, each acknowledge and
agree that the Reimbursement Amount and other consideration provided for herein shall
constitute the sole; entire, maximum, and only obligation, financial or otherwise, of Malburg, on
the one hand, and Vernon, on the other hand, to each other in connection with the facts recited in
the Civil Action or under this Agreement.
3.2 The parties each agree that neither this Agreement nor the execution or
performance of any terms of this Agreement shall constitute or be construed as an admission of
any liability whatsoever. or any wrongdoing by any party to the other.
ARTICLE IV
MUTUAL RELEASES
4.1 For a valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and except as specifically set forth in Article II above and Section 4.3 below,
4.1.1 Vernon does hereby release and forever discharge Malburg and all of his
successors, agents, representatives, employees, trusts, trustees, heirs, assigns, past and
2
LA\1996763.1 07-13-2009
SETTLEMENT AGREMENT
present, and their attorneys, and all persons acting by, through, under or in concert with
them or any of them, of and from any and all manner of action or actions, cause or causes
of action, in law or in equity for indemnity or otherwise, suits, debts, liens, contracts,
agreements, promises, liabilities, claims, demands, damages, losses, costs, or expenses, of
any nature whatsoever, known or unknown, fixed or contingent (hereinafter called
"Claims"), which Vernon now has or may hereafter have against Malburg by reason of
any matter, cause.or thing whatsoever in any way relating to or arising out of the facts
recited in the Civil Action.
4.1.2 Malburg, on behalf of himself and his successors, agents, representatives,
employees, trusts, trustees, heirs, and assigns, does hereby release and forever discharge
Vernon, and all of its•predecessors, successors, agents, representatives, elected officials,
appointed officials, contractors, employees, trusts, trustees, assigns, past and present, and
their attorneys, and all persons acting by, through, under or in concert with them or any
of them, of and from any and all manner of action or actions, cause or causes of action, in
law or in equity for indemnity or otherwise, suits, debts, liens, contracts, agreements,
promises, liabilities, claims, demands, damages, losses, costs, or expenses, of any nature
whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which.
Malburg now has or may hereafter have against Vernon, by reason of any matter, cause
or thing whatsoever in any way relating to or arising out of the facts recited in the Civil
Action.
4.2 Without limiting the generality of the foregoing, the Claims released herein
include, but are not limited to, the (i) Claims alleged in the Complaint; (ii) Claims which could
have been alleged in the Civil Action by Cross -Complaint or otherwise; (iii) any property,
contract or tort claims, including breach of contract, breach of the covenant of good faith and fair
dealing, rescission, reformation, retaliation; intentional or negligent infliction of emotional
distress, tortious interference with contract or existing or prospective economic advantage,
negligence, fraud, misrepresentation, invasion of privacy, defamation, loss of consortium, breach
of fiduciary duty, violation of public policy, conversion, assault, battery, or any other common
law claim of any kind by reason of any matter, cause or thing whatsoever in any way relating to
or arising out of the facts recited in the Civil Action; (iv) any alleged violation of the laws
relating to municipal governance of any jurisdiction by reason of any matter, cause or thing
whatsoever in any way relating to or arising out of the facts recited in the Civil Action; (v) any
alleged violation of federal or state tax laws by reason of any matter, cause or thing whatsoever
in any way relating to or arising out of the facts recited in the Civil Action; (vi) any Claim
arising under any local, state or federal statute or principle of common law in any way relating to
the facts recited in the Complaint; and (vii) any Claim of conspiracy to commit or aiding and
abetting any of the foregoing.
4.3 Notwithstanding anything to the contrary set forth above, the parties expressly
acknowledge and agree that the releases contained in this Article IV are not intended to apply to
the obligations and representations of the parties set forth in this Agreement.
4.4 The parties represent and warrant that there has not been any assignment or other
transfer of any interest in any of the released Claims and there will be no assignment or other
transfer of any interest in any of the released Claims. The parties agree to indemnify and hold
3
LA\1996763.1 07-13-2009
SETTLEMENT AGREMENT
their respective releasees, and each of them, harmless from any liability, claims, demands, costs,
expenses and attorneys' fees incurred by such releasees, or any of them, as a result of any person
asserting any such assignment or transfer or any rights to Claims under any such assignment or
transfer.
4.5 The parties agree that if they hereafter commence, join in, or in any manner seek
relief against any of their respective releasees hereunder through any suit arising out of, based
upon, or relating to any of the Claims released hereunder or in any manner assert against such
releasees, or any of them, any of the Claims released hereunder, then the offending party shall
pay in addition to any other damages caused thereby, all attorneys' fees and costs incurred by
such releasees in defending or otherwise responding to said suit or claim.
ARTICLE V
DISPUTE RESOLUTION
5.1 The parties further agree that all disputes in any way relating to or arising out of
this Agreement including, but not limited to, the interpretation, enforcement or implementation
of this Agreement shall be presented for arbitration pursuant to the provisions of California Code
of Civil Procedure §§1281 et seq. before a retired state or federal court judge as the as the sole
and exclusive remedy for resolving such disputes.
5.2 The parties agree that in all proceedings under this Article V (a) they shall be
entitled to conduct such reasonable discovery as the arbitrator may allow; (b) the arbitrator shall
be entitled to award the full range of relief as would be available to the prevailing party in a court
of law; (c) the arbitrator shall determine the scope of his jurisdiction and all issues concerning
the arbitrability of disputes; (d) the arbitrator shall issue a reasoned decision; and (e) the decision
of the arbitrator shall be final and binding on each of the parties. The prevailing party in any
arbitration under this Agreement shall be entitled to recover its attorneys' fees and costs from the
other party, except that each party shall be responsible for its pro rata share of the arbitrator's fee
notwithstanding its status as a prevailing or non -prevailing party. The parties agree that any such
arbitration shall take place in Los Angeles County in the State of California.
5.3 If any party to this Agreement brings a judicial action to enforce rights hereunder;
such action shall be barred as a result of the exclusive remedy provided in this Article V, and the
prevailing party in any such action; including,with respect to seeking dismissal thereof, shall be
entitled to recover its costs and expenses, including reasonable attorneys' fees, incurred in
connection with such lawsuit.
4
LA\1996763.1 07-13-2009
SETTLEMENT AGREMENT
5.4 THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT BY
SELECTING ARBITRATION AS THE SOLE AND EXCLUSIVE REMEDY FOR
RESOLVING ALL DISPUTES AMONG THEM AS CONTEMPLATED BY THIS ARTICLE
V, THEY ARE WAIVING THEIR RIGHT TO A JURY TRIAL TO WHICH THEY MAY
OTHERWISE BE ENTITLED.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Vernon represents and warrants to Malburg as follows:
6.1.1 Other than the Civil Action, it has not commenced and/or is not a party to
any other civil action or other legal proceeding against Malburg, or any of them; and
6.1.2 That (a) it has had the opportunity to consult with counsel regarding the
.meaning and effect of this Agreement; (b) this Agreement has been duly executed and
delivered; and (c) this Agreement is a valid and binding obligation enforceable against
each Vernon in accordance with its terms.
6.2 Malburg represents and warrants to Vernon as follows:
6.2.1 Other than the Civil Action, he is not a party to any other civil action or
other legal proceeding against Vernon; and
6.2.2 That (a) he has had an opportunity to consult with counsel regarding the
meaning and effect of this Agreement; (b) he fully understands the provisions of this
Agreement and their effect; (c) he is signing this Agreement voluntarily and free from
duress; (d) he has all necessary authority to enter into this Agreement; (e) this Agreement
has been duly executed and delivered; and (f) this Agreement is a valid and binding
obligation enforceable against him in accordance with its terms. ,
ARTICLE VII
MISCELLANEOUS
7.1 This Agreement shall not be subject to attack on the ground that any or all of the
legal theories or factual assumptions used for negotiating purposes are for any reason inaccurate
or inappropriate.
7.2 This Agreement represents the sole and entire agreement among the parties and
supersedes all prior agreements, negotiations, and discussions between the parties hereto and/or
their representatives. Any amendment to this Agreement must be in writing specifically
referring to this Agreement and signed by duly authorized representatives of all of the parties
hereto.
7.3 This Agreement shall be construed as a whole in accordance with its fair meaning
and the laws of the State of California. The parties agree that they have jointly participated in
5
LA\1996763.1 07-13-2009 .
SETTLEMENT AGREMENT
the negotiation and drafting of this Agreement. The parties agree that the language of this
Agreement shall not be construed for or against any particular party,
7.4 The provisions of this Agreement are -severable. If any provision is held to be
invalid. or unenforceable, it shall not affect the validity or enforceability of any other provision.
7.5 This Agreement is binding upon and shall inure to the benefit of any and all heirs,
successors and assigns of any of the parties.
7.6 Each of the parties will bear its own costs and expenses, including legal fees,
incurred in connection with the negotiation of this Agreement.
7.7 All notices, requests, demands• and other communications which are required or
may be given under this Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered; the day after it is sent, if sent for next day delivery
to a domestic address by recognized overnight delivery service (e.g., Federal Express); upon
receipt, if sent by certified or registered mail, return receipt requested; and upon confirmed
transmission if sent by telecopier. In each case notice shall be sent toi
If to Vernon:
City Attorney
City of Vernon
4305 Santa Fe Avenue
Los Angeles, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1408
With a copy to:
Latham & Watkins LLP
355 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 485-1234
Facsimile: (213) 891-8763
Attention: Russell F. Sauer
6
LA\1996763.1 07-13-2009
SETTLEMENT AGREMENT
If to Malburg:
Leonis C. Malburg
29 33 % -CA115 ff/-VP,,r E l /
Telephone: (jg 3' S :- — 74
Facsimile: ( 3i 3 ) 5'8 z -- 3 6 75'
With a copy to:
Loeb & Loeb LLP
10100 Santa Monica Boulevard
Suite 2200
Los Angeles, CA 90067
Telephoner (310) 282-2000
Facsimile: (310) 282-2200
Attention: Anthony Murray .
or to such other person or address as any party hereto shall furnish to the other party hereto in
writing pursuant to this section.
7.8 This Agreement may be executed by facsimile signatures and in one or more
counterparts, each of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
7.9 This Agreement is subject to the approval of the Vernon City Council. This
Agreement shall become effective after it has been signed by all parties, approved of by the
Vernon City Council and the, First Installment has been paid (the "Effective Date").
Accepted and agreed to:
LEONIS C. MALBURG THE CITY OF VERNON
By: DONAL O'CALLAGHAN
�u Its City A r
Le ' C. Malburg
Dated: July T3 , 2009
Donal O'Callaghan
City Administrator
Dated: July (3, 2009
ATTE T:
By: X"62
fAlanuela Giron, it Clerk
7
LA\1996763.1 07-13-2009
SETTLEMENT AGREMENT
& LOEB
By:
Anthony urray.
Attom s for Leonis C alburg
Date : July , 200
ed as to Form:
LATHAM & WATKI LLP
By:
Russell F. Sa er, Jr.
Attorneys f r City of Ve on
Dated: Ju _, 2009
/ .�J � =*\� �\c " ) 4 ow.
8
LA\1996763.1 07-13-2009
MALDUE09
DUE FROM LEONIS MALBURG - REPAYMENT SCHEDULE
011.114010
DATE
PAYMENT #
DUE
PAID
BALANCE
07/13/09
Due from Leonis Malburg
1,486,548.46
08/01/09
Check # 8459 received from Malburg
1
61,939.52
1,424,608.94
12/09/09
Check # 8776 received from Malburg
2
61,939.52
1,362,669.42
03/30/10
Check # 9049 received from Malburg
3
.61,939.52
1,300,729.90
06/24/10
Check #9292 received from Malburg
4
61,939.52
1,238,790.38
09/27/10
Check #9504 received from Malburg
5
61,939.52
1,176,850.86
12/27/10
Check #9740 received from Malburg
6
61,939.52
1,114,911.34
03/31 /11
7
61,939.52
06/30/11
8
61,939.52
09/30/11
9
61,939.52
12/31 /11
10
61, 939.52
03/31 /12
11
61,939.52
06/30/12
12
61,939.52
09/30/12
13
61,939.52
12/31/12
14
61,939.52
03/31 /13
15
61,939.52
06/30/13
16
61,939.52
09/30/13
17
61,939.52
12/31 /13
18
61, 939.52
03/31/14
19
61,939.52
06/30/14
20
61,939.52
09/30/14
21
61,939.52
12/31 /14
22
61,939.52
03/31/15
23
61,939.52
06/30/15
24
61,939.50
1,114,911.34
vuuuuuu`1 fLouv ,. h C ruuu Cti fi, j iiti 22_U5tMn:3
LEONIS,C. MALBURG/SEPARATE ESTATEAI- .- l 9740
12/27/10 Per Setthmen-agreement dtd July 13, 2009 by and between Leonis C. Malburg and
the City of Vernon related to legal fees paid in his behalf i0the amount of $1,486,548.46..
Because of the aforementioned this is the Sixth of 24 installments payable quarterly
beginning September 01, 2009 in order to reimburse the City of Vernon.
' Balance owed $1,114,911.:30
Seventh -installment due March 30, 2011 for a similar amount of $61,939.52
beg &,