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HomeMy WebLinkAboutAgr 2001-07-11 (Schmidt) KEEGIN TALKINGTON HARRISON & SCHOPPERT LLP ORIGINAL Stafford W. Keegin Victoria w: Talkington Robert L. Harrison Jeffrey S. Schoppert Wendy L. Wyse Paul C. Smith Daniel S. Harris Jessica Kamer July 12, 2001 OF COUNSEL w: Gregory Engel Matthew N. White Kip Evan Steinberg ATTORNEYS AT LAW VIA FACSIMILE & FEDERAL EXPRESS Ms. Ann Danforth Town Attorney Town of Tiburon 1505 Tiburon Boulevard Tiburon, California 94920 Re: Schmidt v. Town of Tiburon Marin County Courts Case No. CV 012772 Dear Ann: Per your voicemail message to me this morning, enclosed is the original Settlement Agreement executed by the Schmidts. For the sake of convenience, you and the Town Manager should execute this version to create one original. Please send me a fully-executed copy for my file. In the meantime, please fax me a Town-executed version of the Settlement Agreement as soon as possible. Upon receipt of same, I will go ahead and file the Request for Dismissal. On another note, please let me know if we are definitely on the July 18 agenda for both the public statement and attorney fee request, and please ask the Town Clerk to fax me an agenda and staff report, if any, when available. Serving The Bay Area Since 1963 Courthouse Square · 1000 Fourth Street, Suite 600 · San Rafael, California 94901-3182 Telephone (415) 456-4000 · Telecopier (415) 456-1921 · www.marinlaw.com KEEGIN TALKINGTON HARRISON & SCHOPPERT LLP Ms. Ann Danforth Tiburon Town Attorney July 12, 2001 Page 2 Thanks again for your courtesy and cooperation in this matter. Very truly yours, DSH/glc (587501) Enclosure cc: Eric & Elizabeth Schmidt (w/o encl.) [Via Mail] JUL. 11.2001 4:22PM KTHS NO. 552 P.2,...7 . @RBGINAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE OF CLAIMS This Settlement Agreement and Mutual General Release of Claims ("Agreement'') is entered into as of July 11,2001 between the Town ofTiburon and the Town ofTiburon, a municipal corporation, the Tiburon Town Council (collectively, "Town"), and Eric Schmidt and Elizabeth Schmidt ("The Schmidts"). The Town and the Scbmidts are collectively referenced as the "Parties". RECITALS 1. The Schmidts are the owners of 534 Silverado Drive in the Town ofTiburon. Tbis property is their principal residences where they have lived since 1964. 2. On March 21) 2001, after notice and a hearing) the Town Council adopted the following resolutions: (a) Resolution No. 14-2001, indicating the Town's intention to make acquisitions and improvements in the proposed Stewart Drive Undergrounding Assessment District C'Stewart Drive District''); (b) Resolution No. 15-2001 s preliminarily adopting the Engineer's Report for the Stewart Drive District and Directing Actions with Respect Thereto; and (c) Resolution No. 16-2001) approving Plans and Specifications for the Stewart Drive District and Directing Actions with Respect Thereto. 3. On May 9, 2001, the Town Council held a public hearing for the purpose of taking testimony and hearing protests regarding the proposed Stewart Drive District; tabulating assessment ballots; and taking final action on the Stewart Drive District. A majority of those casting ballots voted in support of the assessments. After tabulating the assessment ballots, the Town Council adopted Resolution No. 26-2001, in which the Town adopted the Engineer's Report, Ordered the Work and Acquisitions and Directed Actions with Respect Thereto. This action created the Stewart Drive District and imposed assessments on all properties in the District according to the equal apportionment described in the Engineer's Report. 4. The Schmidts' residence is located within the boundaries of the District. Throughout the afore-described fonnation process, the Schmidts have objected to the formation of the Dis1rict and the benefit determination and apportionment set forth in the Engineer's Report. S. On June 8) 2001~ the Schmidts filed a petition for writ of administrative mandamus and complaint for declaratory and injunctive relief in Marin County Superior Court. This action is entitled Schmidt v. Town ofTiburon, et al., Case No. CV-012772 ("Petitiont'). 6. In the interest of avoiding costly and protracted litigation, the Parties desire to setUe the aforementioned litigation on the terms set forth in this Agreement. On July lOt 2001, the Town Council considered the proposed settlement in closed session and authorized the Town Manager to execute this Agreement. Schmidt Settlement 1 JUL. 11.2001 4:23PM VTHS NO. 552 P.3/7 .AGREEMENT The Town and the Schmidts, in consideration of the mutual covenants of the ..~eement; hereby agree to the following terms and conditions: 1. In all future districts for the undergroWlding of utilities, the Town's bond counsel shall provide full and frank advice to interested homeowners regarding the assessment district process and their rights and responsibilities \Vi.th respect to that process, as set forth in this section ("Advisory Services"). The requirements of this Section are mandatory, and shall be included in any resolution, guideline or other policy document that the Town may adopt to govern the formation of under grounding assessment districts. A. The Town budget for the proposed district shall include a fund for advising the homeowners (UAdvisory Fund"). The Advisory Fund shall be budgeted at $100 per parcel in the proposed District, except that in no event shall the Advisory Fund be less than $2,000 or more than $10,000. The Advisory Fund shall be collected in advance from district proponents, subject to reimbursement upon sale of the district bonds. The Advisory Fund shall be used solely to provide the Advisory Services set forth in this Section. B. All property owners in the proposed district shall be provided with notice of their rights to meet with the bond coWlSel. Said notice shall be accompanied by \Vritten materials explaining the steps involved in the process of fonning an assessment district and of their rights and opportunities to provide input into the process. C. The bond counsel shall hold at least two meetings for the pmpose of advising affected property owners. The first meeting shall be held as soon as practicable after the Town has retained bond counsel for the proposed district. The second meeting shall be held before the Town Council votes to preliminarily adopt the draft Engineer's Report. D. To the extent that there are sufficient funds in the Advisory Fund, the bond counsel shall be available to provide brief follow-up telephone consultation to affected property owners. E. In the event that the Advisory Fund is insufficient to provide all of the Advisory Services described in this Section, the bond counsel shall provide the Advisory Services according to the following priority: (1) the written materials describing the process shall have first priority; (2) the meeting prior to preliminary adoption of the draft Engineer's Report shall have second priority; (3) the meeting after retention of the bond counsel shall have third priority; and (4) telephonic. consultation shall have last priority. The Town Attorney shall have sole discretion to supervise the bond counsel's provision of Advisory Services to ensure so far as practicable that such services are fairly allocated between all of the affected property owners. Schmidt Settlement 2 JUL. 11.2001 4:23PM KTHS NO. 552 P.4,...7 2. The Town Council shall make the settlement of the Petition publicly known at the first practicable regular COWlcil meeting after the execution of this Agreement. Immediately following such announcement, the Mayor or acting Mayor shall read aloud the statement set forth in Exhibit A, which is attached hereto and incorporated herein by reference. The Town will also make the text of this Statement publicly available. By making this statement, the Town in no way concedes the merits of the Petition. 3. The Schmidts have requested that the Town pay all or some portion of their attorneys fees and costs in litigating the Petition. The Town has preliminarily refused this request on staff s advice that the Sclunidts are not legally entitled to recover attorneys fees. However, the Town will agendize this issue for final decision by the Town Council as soon as practicable. The Schmidts agree that the decision whether to pay all or part of the Schmidts' attorneys fees and costs shall be left to the sole discretion of the Town Council and shall not be subject to further litigation by the Schmidts. 4. The Parties accept this Agreement in full settlement and compromise of the Petition. This Agreement shall fully and forever discharge and release any and all claims and causes of action, whether now known or now unknown, including, without limitation, attorneys fees and costs, which the Parties have against each other, and each of them, and his, her or their respective dependents, heirs, trustees, executors, administrators, representatives, attorneys, employees, agents, assigns, and successors in interest, and all persons acting by, through or under them, arising out of the events or incidents referred to in the Petition including specifically, without limitation, any claims for attorneys fees and costs not reimbursed by the Town pursuant to Section 3 of this Agreement. 5. This Agreement includes an express waiver of CivU Code section 1542, which states: DA 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 by him must have materially affected his settlement with the debtor. ~S~midti!1c ~ (uut) 6. Within 48 hours of the execution of this Agreement by the Town, but in no event later than close of business on July 12~ 2001, the Schmidts shall file with the Court a Request for a Dismissal with prejudice of the Petition, with each Party to bear their own attorneys fees and costs. The Schmidts shall send an endorsed filed copy to the Town Attorney. 7. TIle Parties understand and agree that this is a compromise settlement agreement of disputed claims, and that the execution of this Agreement shall not constitute or be deemed or construed as an admission of liability on the part of any of the Parties. 8. The Parties acknowledge that they have been represented in the preparation of this Agreement by the below-listed COUJ1S~l. Tbe p~es further acknowledge that they have read Schmidt Settlement 3 JUL. 11.2001 4:24PM KTHS NO. 552 P.5,""7 this Agreement and that they are fully aware of its intent and its legal effect and they have not been influenced to any extent whatever by any representations made to them by each other. The Parties further represent that they participated in the negotiation of this Agreement an4 that it will Dot be interpreted against any of them as the draftsperson in the event of a dispute about this Agreement. 9. Each party shall pay and be responsible for payment of their own attorney fees and costs incurred with respect to the Petition and the preparation of this Agreement and in fulfillment of its terms; however, if any action or arbitration proceeding is commenced to enforce or interpret any term or provision of this Agreement, then the prevailing party in such action shall be entitled to his, her or their reasonable attorney fees, costs and necessary disbursements, including without limitation expert fees and costs, mediation and arbitration fees~ and the like, incurred in such action or arbitration proceeding. 10. This Agreement represents the sole and entire agreement between the Parties hereto and supersedes all prior agreements, negotiations and discussions among them with respect" to the subject matter covered hereby. Any amendment to this Agreement must be in writing and signed by the authorized representatives of the parties hereto. 11. This Agreement may be executed in counterparts, each of which when so executed shall be deemed an original, and this Agreement and all signed counterparts shall constitute one and the same instnunent. 12. This Agreelnent is deemed executed on the date first written above. 13. Any provisions of Evidence Code section 1152.5 notwithstanding, this Agreement maybe enforced by any party hereto by a motion under Code of Civil Procedure section 664.6 or by any other procedure permitted by law in the Superior Court of Marin COWlty. 14. The laws of the State of California shall govern the construction and enforcement of this Agreement. ELIZABETH SCHMIDT ... L"/ " "... I I ; j 1-(. ./ ~ aluu?; 411 t/t'~1~/r- THE of Tiburon By: Alex D. McIntyre Town Manager, T ERIC SCHMIDT :h t / . / , .r' /, .;:,z ~ .. 7 (//~-yt,-VJ-- abeth Schmidt APPROVED AS TO FORM: ~U~/ Town Attorney, Town of Tiburon Schmidt Settlement 4 JUL. 11.2001 4:24PM I<THS NO. 552 P. 6,-""7 ~X1JIBIT A SCHMIDT PUBLIC STATEMENT The Town of Tiburon is pleased to announce that we have agreed with Eric and Elizabeth Schmidt to settle their lawsuit against the Town. This lawsuit challenged the validity of the fonnatiol1 of the Stewart Drive Undergrounding Assessment District. The suit also challenged the determination of benefits of the project and the specific apportionment of costs to be imposed on each homeo\'\'1ler to pay for the undergrounding of overhead utility lines. The Settlement Agreement calls for the Town to make the following public statement. The To'WIl recognizes that the special assessment process is lengthy and complex. It begins with homeowner petitions~ involves technical studies and reports, and culminates in a homeowner election on whether or not to go forward with a project substantially funded by individual homeowners. A simple majority vote (51 %) wins. In this particular case, the total assessment approved by the majority of homeowners was approximately $15,800 per parcel, to be paid in either a lump sum., or in 26 annual paymen.ts of roughly $1,200. In addition, homeowners will have to pay an individual hook-up charge of several thousand dollars. In fonning the Stewart Drive Undergrounding Assessment District, the Town believes that it followed the procedures required by law. The Schmidts dispute this. The Schmidts also believe that the processes presently mandated by California law do not give property owners sufficient opportunity to obtain infonnation about the impact of the District and assessments. Therefore, as part of the Settlement Agreement, the Town has agreed to require that future district bond counsel advise homeowners of their rights regarding the proposed district and special assessments. To the best of our knowledge, Tiburon will be the first municipality in California to require this advisoty service. The District will pay the cost of bond counsel's advice. The Schmidts have requested that this statement also clarify their motives in filing suit against the Town. The Schmidts have resided in Tiburon for almost 40 years. They have long been active in community affairs, and are deeply committed to ensuring that all citizens are fully infonned of their rights and are given a meaningful opportunity to be SCHMIDT PUBLIC STATElvIENT-Final.doc JUL. 11.2001 4:25PM KTHS NO. 552 P.?,"""7 heard. While the Schmidts are very concerned about the impact of special assessments on homeowners living on fixed incomes, especially the elderly, the Sclunidts' lawsuit was not monetarily motivated, and the Scbmidts received no payment as part of the settlement. The only financial consideration that the Schmidts requested was the reimbursement of their attorneys' fees. This is a common request in settling litigation and will be considered by the Council as required by the Settlement Agreement. The Schmidts wish to emphasize that their lawsuit was filed to ensure that homeowners in a proposed special assessment district are fully informed about their rights. Specifically, the Schmidts sought to establish a homeo\vner's right to have legal advice provided by the District, given that the Town retains bond counsel at District expense and also has legal advice provided by the Town Attorney at public expense. The Schmidts believe that the best way to have a truly fair and just special assessment process is to ensure that homeowners are fully informed. ln, recognition of this principlet the Town will now require that all future under grounding assessment districts pay for bond counsel to meet with homeowners and be available to answer questions regarding the special assessment process and homeowners' rights. The Town agrees with the Schmidts that providing affected homeowners access to advice from bond counsel will improve the special assessment process by providing homeowners with access to additional helpful information. The Schmidts are hopefill that other communities throughout California 'Will follow Tiburon' s lead to ensure that all Californians are fully informed about their rights. SCHAi!lDT PUBliC STATEMENT-Final.doc