Loading...
HomeMy WebLinkAboutAgr 2004-05-19 (Zack and Pratt) at~ RELEASE AND COOPERATION AGREEMENT This agreement, dated May 19,2004, is entered into by and between the Town of Tiburon, California (lithe Town") and Howard Zack, Diane Zack, Russ Pratt, and Joni Pratt (lithe Residents"). 1. The subject matter of this agreement are the antenna and related facilities that the Marin Emergency Radio Authority ("MERA") has proposed to erect and maintain at 991/2 Mount Tiburon Road situated within the Town. This subject matter shall be referred to herein as lithe MERA antenna," but the intent of the parties to this agreement is that it shall be construed broadly to include any matter reasonably related to lithe MERA antenna" as defined in this paragraph. 2. The Residents attempted to stop the construction of the MERA antenna by filing the lawsuits collectively known as Zack et al. v. the Marin Emergency Radio Authority. MERA filed a cross-petition against the Town. The Residents and the Town prevailed against MERA at trial. MERA successfully appealed that decision to the California Court of Appeal. 3. Residents have decided to file a petition for review of the appellate court decision by the California Supreme Court. The Residents have asked the Town to join in this petition. The Town is willing to join, provided that the Residents comply with the terms of this Agreement. 4. The Residents have alleged that they will be damaged if the MERA antenna is installed and maintained as proposed by MERA and have suggested that the Town might bear some responsibility for such damage. The Town denies it would have any liability whatsoever for any action or failure to act at any time in connection with the MERA antenna. However, the Town wishes to avoid the potential costs and uncertainty of litigation with the Residents if any of the Residents should file suit or make claims or demands against the Town in connection with the MERA antenna. Similarly, while the Residents deny they have any indemnity or other form of liability to the Town should MERA file suit or make claims or demands against the Town for its alleged actions or failures to act in connection with the MERA antenna, the Residents do face potential costs or other forms of liability if the Town should file suit or make claims or demands against them in connection with claims, demands, or suits made by MERA. Page 1 of 4 4~ ( 5. The Town will join in the Residents' petition for review in the California Supreme Court, to be filed by the Residents no later than May 24, 2004, provided that the Residents provide the Town Attorney with a reasonably complete draft by May 20, 2004, at 12 noon, and the Town Attorney approves the contents thereof. The Petition shall, at a minimum, urge review of the question whether Government Code section 6509 grants MERA the same immunity from local land use regulations that the County of Marin enjoys. 6. Now, therefore, in consideration of their mutual releases and covenants and other good and valuable consideration, the Town and its council members, officers, agents, attorneys, representatives and employees, and the Residents and their families, assignees, heirs, assigns, and representatives, hereby forever release and discharge each other from any and all claims, demands, losses, liabilities, obligations, or causes of action in any way related to or arising out of the MERA antenna, including, without restricting the generality of the foregoing, claims for costs or attorneys' fees. 7. This mutual release extends to, and includes, any claims, demands, obligations, or causes of action described in the preceding paragraph which are presently not known or suspected to exist for any reason. The Town and the Residents intend this agreement to be a complete and final accord and satisfaction and general release by and between them of all liabilities, disputes, claims, and causes of action, known or unknown, suspected or unsuspected, which each party holds or may hold against the other relating to or arising out of the MERA antenna. In furtherance of this intention, the parties acknowledge and represent that each is familiar with Section 1542 of the Civil Code of the State of California, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him, must have materially affected his settlement with the debtor. The Town and the Residents represent and warrant that they have been advised by counsel of the content and import of Civil Code Section 1542 and voluntarily waive and relinquish any right or benefit conferred by that statute, or any similar provision of the statutory or nonstatutory law of California or of any other jurisdiction, to the full extent that such rights or benefits may lawfully be waived. Page 2 of 4 8. The Town and the Residents further agree and covenant that they will not institute, prosecute, pursue, or cause to be instituted, prosecuted or pursued, any formal or informal complaints, claims, charges, requests for investigation, claims for relief, demands, suits, actions or causes of action in connection with the MERA antenna, whether in law or in equity, in any federal or state court or other agency, which they assert or could assert against or with respect to each other, at common law or under any statute, rule, regulation, order, or law, whether federal, state, or local, on any ground whatsoever, known or unknown. 9. The Residents have asked the Town to assist to obtaining amicus curiae letters in support of a grant of review of the case. The Town agrees to assist to obtaining such letters, provided that (a) the Town Attorney shall have sole discretion to determine the methods to be employed by or on behalf of the Town to obtain amici support; and (b) failure to obtain such support shall not be considered a breach of this agreement. 10. This agreement shall be governed by, and interpreted under, California law. In the event of any dispute regarding interpretation or performance of this agreement, venue shall be in the Superior Court of the State of California for the County of Marin. 11. In the event any dispute regarding the interpretation or performance of this agreement requires recourse to any court or administrative agency, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs. 1 2. Th is agreement constitutes the enti re agreement between the parties hereto with respect to the subject matter hereof, and any and all prior oral and written communications, representations, and agreements are merged herein. No amendment, alteration, or modification of this agreement shall be valid unless it is expressed in a written instrument duly executed by the Town and the Residents. 13. This agreement may be executed simultaneously in any number of duplicate copies, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Page 3 of 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date stated above. TOWN OF TIBURON By ~rtuQ Ck de-- Diane Zack ~ Ass att ~o~ ~tt APPROVED AS TO FORM: ~~ ,.(~nforth Town Attorney ddtt Elliot L. Bien Attorney for Residents t-- Page 4 of 4