Settlement Agreement and Mutual Release of Claims with the Bank of America11 -3 ocie
SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
The parties to this Settlement Agreement and Mutual Release of Claims (the
"Agreement") are STR Marketplace, LLC, a Texas limited liability corporation ("STR"), the
City of Miami Beach, Florida ("CMB"), Bank of America, N.A. ("BANA"), and SunTrust Bank
("SunTrust"), all such parties sometimes collectively referred to herein as the "Parties Hereto"
or each individually as a "Party."
RECITALS
The Parties Hereto enter into this Agreement based upon the following facts, intentions
and understandings:
A. According to the allegations of the United States of America ("United States") in
United States of America v. David 1 Miller, Case No. 17-MJ-02777-GARBER,
United States District Court for the Southern District of Florida (the "Criminal
Action"), the defendant therein, David J. Miller ("Miller"), fraudulently gained
access to and, between July 2016 and December 2016, conducted unauthorized
electronic transactions against a CMB general depository account (the "CMB
Account") held at SunTrust.
B. The United States' allegations in that Criminal Action include that Miller
fraudulently obtained and used the identity of one "R.W." to create an online
account at a private company located in Houston, Texas, described as "Company
A", and, using funds transferred from the CMB Account, purchased 157 personal
seat licenses (the "PSLs") through Company A's online marketplaces. According
to the United States, to obtain such funds from the CMB Account Miller, posing
as "R.W.," initiated 57 Automated Clearing House debit transfers between July
2016 and December 2016 against the CMB Account totaling $3,555,395.66 (the
"ACH Transfers"), which funds were electronically transferred to Company A's
bank account in Houston, Texas.
C. STR -- the company described as "Company A" in the Criminal Action --
discovered the underlying identity theft and ACH Transfers through a background
check of its purported customer, Robert Walsh, Jr. ("Walsh"). STR disabled the
online account, cancelled pending PSL transactions and returned $560,487.00
from the cancelled transactions to CMB, coordinated the transfer of the purchased
PSLs to CMB, and recovered and voluntarily reimbursed CMB the additional
amount of $1,268,685.00.
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D. During all times relevant, STR owned the bank account (the "STR Bank
Account") into which all funds were transferred on the basis of the ACH
Transfers. The STR Bank Account was opened and maintained at BANA.
E. Beginning in or about December 2016, SunTrust, in its capacity as Receiving
Depositary Financial Institution, made requests and/or demands to BANA, in its
capacity as Originating Depository Financial Institution, that BANA accept
SunTrust's return entries (the "Returns") on the ACH Transfers.
F. This Agreement is the compromise of disputed claims and is not an admission of
liability by any of the Parties Hereto. This Agreement was made for the purpose
of terminating the controversy between the Parties Hereto. The Parties Hereto
now desire to settle their controversy with respect to all claims made or that could
have been made between them, or any person or entity in privity with any of
them, in any way relating to the ACH Transfers, the PSLs, the Returns, Miller,
Walsh, or the Criminal Action, other than as otherwise expressly set forth herein,
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties Hereto agree as follows:
AGREEMENTS
1. EFFECTIVE DATE. This Agreement is effective when all Parties Hereto have
executed the Agreement.
2. SETTLEMENT AMOUNT and PAYMENT TERMS. STR agrees to pay
CMB the settlement amount of $900,000.00 in U.S. Dollars according to the following payment
terms.
a. Payment Terms. STR agrees to pay CMB, and CMB agrees to accept the total
sum of $900,000.00 U,S. Dollars (Nine Hundred Thousand and 00/100 U.S. Dollars) (the
"Settlement Amount"), which payment shall be made by cashier's check or wire transfer,
payable to "City of Miami Beach" and delivered to CMB within five (5) business days of the
Effective Date or STR's receipt of the fully executed Agreement, whichever comes later.
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b. Delivery of Signed Agreement to STR. Delivery to STR of this Agreement,
signed by CMB, BANA and SunTrust, shall be deemed accomplished upon delivery of the same
to STR's counsel, Rupert F. Barron, Esq., Hirsch & Westheimer, P.C., 1415 Louisiana Street,
36th Floor, Houston, Texas 77001.
c. Delivery of Settlement Amount to CMB. Delivery to CMB of the Settlement
Amount shall be deemed accomplished either (1) upon delivery to CMB of a cashier's check in
the Settlement Amount, via First -Class U.S. Mail, postage prepaid, or by Federal Express
delivery, addressed to: City of Miami Beach, Finance Department, 1700 Convention Center
Drive, Miami Beach, FL 33139; or (2) upon delivery of the Settlement Amount by wire transfer
pursuant to CMB's Wiring Instructions as set forth in the Wiring Instructions attached as Exhibit
"A" hereto.
3. MUTUAL RELEASES and INDEMNITY.
a. CMB's Releases to STR and BANA. Except as otherwise expressly stated
in this Agreement, CMB, including all persons and entities included in
Paragraph No. 7 of this Agreement, releases and forever discharges STR
and. BANA, jointly and severally, including all persons and entities
included in Paragraph No. 7 of this Agreement, from any and all claims,
demands, causes of action, suits, lis pendens, and charges or grievances of
any kind or character, known or unknown, fixed or contingent, liquidated
or unliquidated, which were or could have been asserted against STR or
BANA in any way arising from or relating to any of the ACH Transfers,
the PSLs, the Returns, Miller, Walsh, or the Criminal Action, including
but not limited to any negligence or strict liability claim, attorney's fees or
costs.
b. CMB's Releases to SunTrust. Except as otherwise expressly stated in this
Agreement and in that Settlement Agreement and Release dated October
31, 2017 between SunTrust Bank and CMB (the "SunTrust -CMB
Settlement"), CMB, including all persons and entities included in
Paragraph No. 7 of this Agreement, releases and forever discharges
SunTrust, including all persons and entities included in Paragraph No. 7 of
this Agreement, from any and all claims, demands, causes of action, suits,
lis pendens, and charges or grievances of any kind or character, known or
unknown, fixed or contingent, liquidated or unliquidated, which were or
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could have been asserted against SunTrust in any way arising from or
relating to any of the ACH Transfers, the PSLs, the Returns, Miller,
Walsh, or the Criminal Action, including but not limited to any negligence
or strict liability claim, attorney's fees or costs.
c. BANA's Releases to STR, SunTrust and CMB. Except as otherwise
expressly stated in this Agreement, BANA, including all persons and
entities included in Paragraph No. 7 of this Agreement, releases and
forever discharges STR, SunTrust and CMB, jointly and severally,
including all persons and entities included in Paragraph No. 7 of this
Agreement, from any and all claims, demands, causes of action, suits, lis
pendens, and charges or grievances of any kind or character, known or
unknown, fixed or contingent, liquidated or unliquidated, which were or
could have been asserted against STR, SunTrust or CMB, in any way
arising from or relating to any of the ACH Transfers, the PSLs, the
Returns, Miller, Walsh, or the Criminal Action, including but not limited
to any negligence or strict liability claim, attorney's fees or costs.
d. SunTrust's Releases to BANA and STR. Except as otherwise expressly
stated in this Agreement, SunTrust, including all persons and entities
included in Paragraph No. 7 of this Agreement, releases and forever
discharges BANA and STR, jointly and severally, including all persons
and entities included in Paragraph No. 7 of this Agreement, from any and
all claims, demands, causes of action, suits, lis pendens, and charges or
grievances of any kind or character, known or unknown, fixed or
contingent, liquidated or unliquidated, which were or could have been
asserted against BANA or STR in any way arising from or relating to any
of the ACH Transfers, the PSLs, the Returns, Miller, Walsh, or the
Criminal Action, including but not limited to any negligence or strict
liability claim, attorney's fees or costs.
e. SunTrust's Releases to CMB. Except as otherwise expressly stated in this
Agreement and in that SunTrust -CMB Settlement, SunTrust, including all
persons and entities included in Paragraph No. 7 of this Agreement,
releases and forever discharges CMB, including all persons and entities
included in Paragraph No. 7 of this Agreement, from any and all claims,
demands, causes of action, suits, lis pendens, and charges or grievances of
any kind or character, known or unknown, fixed or contingent, liquidated
or unliquidated, which were or could have been asserted against CMB in
any way arising from or relating to any of the ACH Transfers, the PSLs,
the Returns, Miller, Walsh, or the Criminal Action, including but not
limited to any negligence or strict liability claim, attorney's fees or costs.
f. STR's Releases to CMB, BANA and SunTrust. Except as otherwise
expressly stated in this Agreement, STR, including all persons and entities
included in Paragraph No. 7 of this Agreement, releases and forever
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g.
discharges CMB, BANA and SunTrust, jointly and severally, including all
persons and entities included in Paragraph No. 7 of this Agreement, from
any and all claims, demands, causes of action, suits, lis pendens, and
charges or grievances of any kind or character, known or unknown, fixed
or contingent, liquidated or unliquidated, which were or could have been
asserted against CMB, BANA or SunTrust, in any way arising from or
relating to any of the ACH Transfers, the PSLs, the Returns, Miller,
Walsh, or the Criminal Action, including but not limited to any negligence
or strict liability claim, attorney's fees or costs.
CMB's Indemnification of STR, BANA and SUNTRUST. CMB,
including all persons and entities included in Paragraph No. 7 of this
Agreement, hereby indemnifies and forever holds harmless STR, BANA
and SunTrust, jointly and severally, including all persons and entities
included in Paragraph No. 7 of this Agreement, from and against any
claim, demand, cause of action, or suit by any insurer in any way arising
from any insurance claim by CMB concerning any of the ACH Transfers.
4. REPRESENTATIONS REGARDING RELEASES. STR, CMB, BANA and
SunTrust each represent that to the extent they had or have any claims, suits, rights and/or
interests which have been, or could have been, asserted against the other in any way arising from
or relating to any of the ACH Transfers, the PSLs, the Returns, Miller, Walsh, or the Criminal
Action, they own the same and have not assigned, pledged, or otherwise transferred or
encumbered any claim made in relation to the same. The Parties Hereto further represent as
follows:
a. The Parties Hereto execute this Agreement as a free and voluntary act,
without any duress, coercion or undue influence exerted by or on behalf of
any other Party;
b. Each of the Parties Hereto is represented by counsel of their choosing, or
has had a full and adequate opportunity to consult counsel of their
choosing;
c. Each of the Parties Hereto has complete authority to execute this
Agreement in the capacity herein stated and to bind the Party on whose
behalf the signature is made; and
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d. This Agreement is a valid, binding and enforceable obligation that does
not violate any law, rule, regulation, contract or agreement otherwise
enforceable by or against any of the Parties Hereto.
5. NO ADMISSION OF LIABILITY. Neither this Agreement nor any of its terms,
covenants, or conditions shall be used in any way to prove an admission of any wrongdoing or
any liability on the part of any of the Parties Hereto. Nothing contained in this paragraph shall
prevent any of the Parties Hereto from using this Agreement in any proceeding to enforce or
otherwise effectuate this Agreement.
6. NO REPRESENTATION AS TO TAX CONSEQUENCES. The Parties
Hereto make no representations or warranties to each other concerning tax treatment of the
Settlement Amount or this Agreement by the United States Internal Revenue Service or any State
or local taxing authority, and otherwise make no representations or warranties concerning tax
treatment.
7. MULTIPLE ORIGINALS. This Agreement shall be executed in multiple
originals, one to be retained by each of the Parties Hereto. Signature pages may be delivered by
facsimile transmission and/or by electronic mail and will be binding without the need to
exchange original signature pages.
8. SUCCESSORS AND ASSIGNS. This Agreement, including but not limited to
the Mutual Releases stated in Paragraph No. 3, shall bind and benefit the Parties Hereto, as well
as their respective predecessors, successors, attorneys, attorneys -in -fact, past and present
officers, directors, employees, shareholders, officials, partners, spouse(s), accountants, assignees,
principals, agents, representatives, servants, past and present insurance carriers and reinsurers,
administrators, as well as all corporations, affiliates and/or business interests related to any Party,
if any, or any other person or entity in privity with any Party.
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9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Agreement shall survive its execution and delivery.
10. SEVERABILITY. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder
of this Agreement. The Parties Hereto agree that all terms and provisions of this Agreement are
contractual in nature and not merely recitals.
11. FULL DISCLOSURE. The Parties Hereto warrant and represent that, before
signing this Agreement, they have fully informed themselves of its terms, contents, and
conditions, and fully understand its terms and conditions.
12. CONFIDENTIALITY. Except as otherwise set forth herein, the Parties Hereto
agree that the terms of the Agreement are confidential and shall be kept strictly confidential. The
Parties Hereto, and their attorneys, agree not to publicize, disclose or discuss the terms of this
Agreement to or with persons other than those identified herein. The Parties Hereto, and their
attorneys, further agree that each shall inform any person to whom disclosure is permitted, as
provided hereinafter, and to whom such permitted disclosure is made, that this Agreement is and
shall remain confidential. Without limiting the generality of the foregoing, disclosure includes
any statement, written or oral or electronic, to any person, newspaper, magazine, internet chat
room, bulletin board, web site, radio station or television station. The parties and their
attorney(s) shall not disclose the terms, provisions or effect of this Agreement to third parties or
anyone except as otherwise required by law, including, but not limited to, Chapter 119 of the
Florida Statutes, or as ordered by a court of competent jurisdiction, other than as follows: (i) to
any Party's accountants or persons with a need to know for purposes of preparing financial
statements and/or preparing and filing tax returns, (ii) in response to the requirements of any
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regulated lending institution, (iii) to any Party's attorneys or officers for purposes of review and
advice and for use in any litigation to enforce this Agreement, (iv) to enforce this Agreement, (v)
in response to any subpoena, other legal process, or public records requests requiring the
production or disclosure hereof, (vi) to the IRS or other taxing authority, (vii) to any Party's
insurer, (viii) to any governmental or bank regulator or regulatory agency; (ix) to any elected
official of CMB, including any audit, finance, or budget committee thereof, and including any
information disclosed to such board or committee at any meeting required to be open to the
public pursuant to Chapter 286 of the Florida Statutes; or (x) to the other Parties Hereto or their
attorneys. It is further expressly agreed that the Parties Hereto and their attorney(s) shall not post
or otherwise disclose any information about this dispute or settlement on the Internet or any
other paper or electronic media outlet, including but not limited to news organizations websites
or newspapers, email, Facebook, MySpace, and Twitter. And it is further expressly agreed that,
with the exception of disclosure in relation to any effort to pay the Settlement Amount, if and
when third parties inquire about the released matters and/or this Agreement, the Parties Hereto
and their attorney(s) may advise such third parties only that such matters were resolved between
the Parties Hereto.
13. NO WAIVER. This Agreement may not be changed, discharged, terminated,
altered or waived orally, but only by an instrument in writing signed by the Parties Hereto.
14. MERGER. This Agreement constitutes the entire agreement of the Parties
Hereto respecting the matters contained herein and supersedes all previous written or oral
agreements. With the sole exception of the SunTrust -CMB Settlement, this Agreement
represents the final agreement between the Parties Hereto and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements of the Parties Hereto.
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There are no unwritten oral agreements between the Parties Hereto. The Parties Hereto
have not made any representations not stated herein, nor have they relied upon any
representation not stated herein in deciding whether to enter into this Agreement.
IN WITNESS WHEREOF, the Parties Hereto have duly executed this Agreement on
the dates indicated below in multiple originals.
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Date:, /1'71l?
THE STATE OF TEXAS Jr�4..0A §
COUNTY OF HAMS
This instrument was acknowledged before me on this ( I Via
day of J-4 , '... , ,
1Y'
2017, by � cl--)v Arn C D,AK ,
of STR Marketp ace, Lte, on behalf of said entity.
STR MARKETPLACE, LLC
BY:r..-
r�r fc /Ski -,es
(Printed Name)
(Title)
y,�PµY Au��ip
��'�1,1uq LAURA N CLINTON
o,NOTARY WUI3I.IQ-STATE OF TEXAS
t h COMM, GXR 03-1 8x2020
NOTARY ID 13058511-1
20170113.20170113/2834608.1
NO AR PUBLIC, STATE OF TEXAS
10
THE STATE OF FLORIDA
COUNTY OF MIAMI-DADE
CITY OF MIAMI BEACH
BY:
Dan Gelber
Mayor
This instrument was acknowledged before me on this \ day of QUVOIVAOCir
2017, by Dan Gelber, Mayor of the City of Miami Beach, who is personally known to me, on
behalf of said entity.
TIIIJI(�r
NICHOLAS E KALLERGIS
Notary Public - State of Florida
Commission o GG 141821
My Comm. Expires Sep 6, 2021
1ondell through Notional Nntoty Assn.
NOTARY PUBLIC, STATE 0 LORIDA
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20170113.20170113/2834608.1
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attorney OA P Data
Date: 11 [ v r
1'7
THE STATE OF TEXAS
COUNTY OF
Thi„,ax►st
2017, by
of Bank of America, N.A., on behalf of said entity.
BANK OF AMERICA, N.A.
BY:
'1"(t1d,.
�.F (Printed Name)
Gent° (Z -ii J'Pct 4,£ r (Title)
d § rr "_
t
as acknowledged before me on this � � day of Altt)�t+e
NOTARY PZBLIC, STATE OF TEXAS
6,0
12
20170113.20170113/2834608.1
TOMMAPA LONG
Notary Public
STATE OF TEXAS
My Comm. Exp. 05.10-20
Notary ID # 12881920,8
•
e
i•
SUNTRUST BANK
Date; I/ iibie'0(7 BY;
THE STATE OF GEORGIA §
COUNTY OF.;, 0'1/ \. §
This instrument�'as acknowledged before me on this I nay of 1 CA
2017, by .7.-0e,1 r. f 0,.ti(e , 6,' ct U, c e f r , , E' ,i 7`
of SunTrust Bank, on behalf of said entity. 1
xTe ( /, �y/C (Printed Name)
rouP V�te 640,- 4?47— (Title)
20170113,20170113/2834608.1
ViA
N TARY PUBLIC, STATE OF GEO
13
GIA
lOodhrilkillmsdrdelmagrarsdkoibidliiii
C CAMPBELL
Nolary Public
Henry County 1
State of Georgia
MvCommissfan Expires AuV2 `2018, i
Exhibit "A"
Wire instructions for City of Miami Beach are as follows:
Bank: SunTrust Bank General Depository
ABA/Routing: 061000104
A/c Name: City of Miami Beach
A/c Number: (1000198188251)