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HomeMy WebLinkAboutAgr 2005-07-15 (Reed Union School District) 04/04/2005 10:51 3335555 PAGE 01 SETTLEMENT AGREEMEl'rT AND MUTUAL RELEASE OF ALL CI,AIMS This Settlement Agreement and Release of All Claims (hereinafter "Agreement") is made and entered into on this / => fh day of Jul~!, 2005 between the Tovvn of Tiburon (hereinafter "Town") and the Reed Union School District (hereinafter <<District") to fonnalizc termination of their involvement with resped to all issues raised or that could have been raised in the matter regarding the cha.llengt: by the District of the validity of the Del Mar Valley Undergrounding Utilities District Nel. 2005-01 and the assessment imposed by the Town upon the District (hereinafter Uthe Di!:pute"). RECIT ALS A. Since January 2003, the Town has pursued the undcrgroundil1g of overhead utilities in the Del Mar Valley area. In .Tunc 2003~ the Town adopted a resolution of intention to fonn the Del Mar Valley Utility U ndcrgrounding Assessment District. B. On March 16, 2005, the Town ad.opted a res(llution preliminarily approving the Engineer's Report and directing related Disputes, including settl.n.g the dates for ba.l1oting and mailing ballots. On March 30, 2005: ballots, a notice of assessment, description of the assessment method, and infolmation concerning the hearing to be held May 18, 2005 were mailed to the property owners. The final total assessment to the District was $125,350 ($1.2,523.50 multiplied by ten parcels comprising the school site.) May 18~ 2005 was the deadline for voting I)n the assessment. At a public hearin.g on that date it was announced that the assessment had passed. C. The District believes that under Sections 53C 1 and 5303 of the California Streets and Highways Code, the Town is obliged to pay any assessments levied against the District property. The District also contends that in the E:vent it is determined that Sections 5301 and 5303 of the California Streets and Highways Code are abrogated by article XIII D of the California Constitution, that the Distril:t property is exempt from the assessment because its property receives no special benefit :fro'm the assessment district. The Town disputes both contentions. D. The parties to this agreenlent are the Town an.d the District (together hereinafter Hthe Parties). NOW, THEREFORE, in consideration of the fJregoing. and for good and valuable consideration, the sufficiency of which is herehy acknowledged, the parties hereto agree as follows: -,..,.-...- -.- Post-It"" FE.X Note 7671 Page 1 01 F.'}lC /14 l' J -- z.4 3" r Phon~# 5gT-,I//~ )( 1~.t>' F". II PhOne ft 04/04/2005 10:51 3335555 AGREEMENT 1. SETTLEMENT TERMS A. Within five days of the execution of this Agreement, the Distri.ct shall pay the Town $125, 350 constituting full payment of the final total assessment to the District including all necessary utility connection charge s.(hereinafter UPayment") B. In consideration for tbe Payment by tlC District, the Town agrees to perfonn the Lyford Sidewalk Project, the tenns of which are as follows: . The Town will install a sidewalk from Round Hill to Kleinert Way and from Kleinc~rt Way to the Reed School drop off on the northwest sid.c: of Lyfotd Drive. . The TOWl.J will complete the recessary street repair on Lyford Drive due to damage from tree roots at Reed School. The Tow1) shall be responsible for all costs associated with:he installation of the Lyford Sidewalk Project and repalT of the roadbed along Lyford. Drive in front of Reed School. 2. MUTUAL RELEASE In consideration for the timely performance of all the terms and conditions of the Agreement in the manner provided herein, the Parties hereby release and forever discharge eaeh other aod their administrators, trus':ors, trustees, beneficiaries) predecessors, successors, assigns, affiliated and related entitics, which arc or may ever become liable to either of the Parties of and from any 2nd all claims asserted in the Dispute or concerning the Dispute, known or unknown, fixed or contingent which either of the Parties may now have or may hereaftcr have against each other by any reason of any matter or cause arising out of the Dispute. 3. KNOWLEDGE OF CLAIM:S The Parties warrant, represent, and agree that in e~~ecuting .this Agreement, they do so with full "knowledge of any and all rights, which they may, or might, have with respect to the Dispute. . 4. COMPROMISE The Parties understand and agree that this settlement is a compromise of disputed claims, and that the consideration herein is not, in any manner, to be construed at any time or for any purpose, as an admission of liability by the Parties hereby released, and by each of whom liability is expressly denied and controvclted. Page 2 of 5 PAGE 02 04/04/2005 IB:51 3335555 PAGE 03 5. WANER Each 0 f t he Parties h crcto acknowledges that t herl~ is a risk that subsequent to execution of this Agreement, it may incur injury, loss, damages, costs, attorney's fees, expenses, or any of these, which are in some way caused by, and/or connected with the persons, entities, and/or matters referred to in the released claims, or which are unknown, or unanticipated at the time this Agree.ment is signed, or which ate 110t capable of being ascertained. Each of the Parties hereto further acknowledgl~s that there is a risk that such damages as are known may become m.ore serious thar any party now expects or anticipates. Nevertheless~ each of the Parties hereto acknowled.ges that this Agreement has been negotiated and agreed upon in light of those realizations, and each of the Parties hereby expressly waives all rights each may have in such unsuspected claims with respect to the Dispute. In doing so, each of the Parties hereto have had the benefit of legal counsel and, with knowledge and understanding, and as to the Dispute only, specifically WAIVE their rights under California Civil Code ~ 1542, which provides as follows: A general r clcase does .not e xtcnd toe laim s 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 sett lement with the debtor. G. GOVERNING LAW: VENUE The Parties agree that the laws of the State 0::" California will goven1 the interpretation of this Agreement. The County of Marir. shall be the venue for any litigation that may arise from this Agreement 7. CONSULTA TION WITH COUNSEL The parties acknowled.ge that they have read this Ap"eement and each part thereof and fully understand the implications of the same, have t.ad, ilie opportunity to discuss this Agreement with counsel of their own choice, and have either sought sueh consultation or have affinnatively chosen not to obtain suet. consultation. 8. W ARRANIY OF SIGNATURES Each of the signatories hereto warrants and represents he or she is competent and authorized to enter into this Agreement on behalf of the Party fOT whom he or she purports to sign and has the authority by executing thi.s A greement to bind the Party to the te.rrns and conditions contained herein. Each party agrees to defend, indemnify and save the other party harmless from any and a)) loss, clailn: expense, demand or cause of Dispute of any kind or character, including reasonable attorney's fees and costs, by reason of the falsity or inaccuracy of any representation by the Party. Page 3 of 5 04/04/2005 10:51 3335555 PAGE 04 9. ATTORNEY'S FEES The Parties acknowledge and agree that each of them will bear their own costs, expenses and attorneys fees out of or connected with lhe Dispute, the negotiation, drafting and execution of this Agreement~ and all matter; arising out of or connected herewith. 10. ENTIRE AGREEMENI The Parties acknowledge that this instrument c,;)ntains the entire agreement between the Parties hereto, and the terms hereof arc contractual and not a mere recital. This Agreement prevails over prior communications regardjng matters contained herein between or among the Parties and/or their representatives. This Agreement waS drafted by the Parties and their representatives and there shHl1not be a presumption or construction against any signatory hereto) each such signatory expressly waiving al'Y such presumption. Tbis Agreement is an integrated agrcem,ent and no representations, warranties or promises have been made or relied upon by any other signatory hereto other than as set forth. Modifications concerning this Agreeme1t shall be in writing only and executed by both Parties 1.1. SEVERABILITY This Agreement is the product of negotiation and preparation of the Parties hereto, who expressly agree that the Agreement shall not be deemed prepared or drafted by one party or the other, and shall be construed accordi:ng'[y. 12. COUNTERPARTS This Agreement may be executed in counterparts ~.nd so executed shall constitute an Agreement which shall be binding upon both parties h~:reto. A photocoPY of the funy executed Agreement shall have the same force and effect (l s the original. Page 4 0 f 5 B4/04/20B5 IB:51 3335555 PAGE 05 IN WITNESS WHEREOF, the Parties execute this Settlement Agreement and Mutual Release as of All Claims follows: I accept the tenns and conditions set out above: Dated4 19 , 2005 REED UNION SCIIOOLDISTRlCT ~~ ~----- By. =-- ' It . -'AlZf[ /II~ Dated: ~J~~ \S '" , 2005 TOWN OF TIBURON By:JlJ~ Ils:l'1)~\l ~ APPROVED AS TO FORM: Dated: ~~~ II , 2005 By: ~ ~L.~ Ann It. Danf9tth, Esq. T own Attorney Dated: ~)~r 2.D, 2005 r MILLER, BROWN & DANNJS By: ~/~ ~.~ ~"l N. Gou , Esq. AttOlneys for Reed School District Page 5 of 5