Loading...
HomeMy WebLinkAboutAgr 2002-04-19 (Zippin)AGREEMENT FOR WAIVER OF APPEAL This Agreement is entered into by and between Calvin Zippin and Patricia Zippin ("Zippin"), owners of that real property and residence commonly known as 4 Warren Court, Tiburon (the "Property"), on the one hand, and Town of Tiburon, its officials, Councilmembers, administrators, employees, representatives and agents (collectively, "Town"), on the other hand, effective April 19, 2002. 1. RECITALS A. WHEREAS, Zippin previously has filed a complaint (being Marin County Superior Court action number CV044448), wherein Zippin asserted a variety of allegations, claims, demands causes of action and grievances against Town (the "Lawsuit"); and B. WHEREAS, Zippin specifically has contended in the Lawsuit that a certain storm drain pipe (the "Pipe") is located near, but outside, a storm drain easement which was dedicated, but not accepted, on the tentative subdivision map for "Hacienda Terrace, Unit 1" (wherein the Property is located) within and under the Property and residential improvements thereon. Zippin has further contended that the corrugated metal of the Pipe is so aged that it has irremediably deteriorated and corroded so that the bottom portion of the Pipe no longer exists, requiring the Pipe to be repaired or replaced either in situ or by relocation within the aforementioned easement (the "Repair"); and C. WHEREAS, Town previously has been granted summary judgment on the lawsuit by Order of Judgment, filed on November 6, 2001 (the "Order"); and D. WHEREAS, following receipt (on or about November 16, 2001) of Notice of Entry of Judgment, Zippin timely filed a Notice of Appeal on or about December 6, 2001; and E. WHEREAS, preparation for presentation of argument on appeal has been iulsertax ' en diligently by Zippin, t1-iougn wi~hout yet i:aving to file an. OF%ning Brief; and F. WHEREAS, Town has expressed to Zippin its intent to oppose the appeal; and . G. WHEREAS, Zippin and Town desire to conclude, terminate and eliminate any and all controversies between them as a result of or pertaining to the Lawsuit, the Order or the pending appeal; NOW, THEREFORE, Zippin and Town agree as follows: II. TERMS OF AGREEMENT A. Consideration By Town 1. Town shall pay $10,000.00 for the benefit of Zippin to the contractor chosen by Zippin, in its exclusive discretion "to perform and construct the Repair. Said payment shall not be due unless and until (a) physical work (as opposed to preparation of plans, designs and specifications) actually has begun on the Property and (b) the name of the contractor (together with its mailing address and tax identification number) has been given to the attorney for Town. 2. Town hereby waives, releases and discharges Zippin from any claim or demand for recompense, reimbursement or other payment on account of or pertaining to Town's costs of suit (including, but not limited to, that represented by Town's Memorandum of Costs filed on November 13, 2001), expenses, attorneys' fees or experts' fees arising out of or pertaining to the defense of Town in the Lawsuit. B. Consideration by Zippin 1. Simultaneously with delivery of this Agreement as signed by them to the attorney for Town, Zippin also shall deliver a Voluntary Abandonment and Dismissal of Appeal to the attorney for Town, who shall be at liberty to file the same with the First Appellate District Court of Appeal. 2. In addition to that specified in paragraph II(B)(1), Zippin warrants, confirms and covenants that they (individually and/or jointly) will not thereafter file, assert or prosecute (or cause or allow to be filed, asserted or prosecuted on their behalf) any appeal from the Order. 3. Zippin confirms, acknowledges and agrees, without reservation or qualification of any kind whatsoever, that the payment specified in paragraph II(A)(1) is not intended to be, and shall be neither interpreted nor construed to be, at any time for any reason, an exercise or expression of dominion, control, ownership, responsibility or acceptance, in whole or in part, express or implied, by Town concerning or pertaining to either the Pipe or the easement. 4. Zippin represents, acknowledges and agrees that the payment specified in paragraph II(A)(1) shall not be interpreted, construed or understood, implicitly or inferentially, explicitly or expressly by anyone at any time as either participation (substantial or otherwise) by the Town in any aspect of the Repair (including, but not limited to, planning, designing, locating, supervising, approving, 2 installing, constructing, directing, requiring, recommending or maintaining the same). In so doing, it is Zippin's intent and desire to acknowledge and confirm that all aspects of the planning, design, placement and construction of the Pipe are the sole and exclusive discretion of Zippin, in consultation with whomever they think advisable, without direction, recommendation or representation by the Town, except as may be the result of that specified in paragraph II(B)(6). - 5. Zippin hereby releases and forever discharges Town from all claims, demands, causes of action, allegations and liability arising out of or in any way connected with: a. That asserted or alleged in the Lawsuit, including, but not limited to, any damages, expenses, distress, diminution-in-value of the Property resulting from or pertaining to the flow or drainage of surface water from any source or by any means whatsoever onto, across or near the Property and/or in the Pipe. b. That actually or constructively known by Zippin or their attorneys or agents or that which should have been known to them based on a reasonable inspection, investigation or inquiry as of the date of this Agreement which relate to the Property and/or which are the subject of the Lawsuit; and C. That arising out of, pertaining to or a consequence of the Repair; and d. In so doing, it is the express intent of Zippin to waive all rights or benefits which they have, or may have, under Civil Code section 1542 under any theory of recovery or liability whatsoever. Thus, Zippin expressly acknowledges that the facts on which they now may be relying as true may hereafter prove to be different from or other than that which they now believe to be true; nonetheless, they acknowledge and accept the risk and fully understand that, if there is a material change in the facts or circumstances now believed by them to be true, this Agreement shall nevertheless be, and shall remain, valid, effective and binding. In so expressly waiving all rights and benefits which they have, or may have, under the provisions of Civil Code section 1542, Zippin understand that it provides as follows: "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 by him must have materially affected his settlement with the debtor." J 6. Zippin recognizes, acknowledges, understands and agrees that nothing in this Agreement shall be interpreted, construed or deemed to limit, modify, abridge, condition or predetermine whatever may be the Town's ordinary procedures, policies, standards or requirements for or pertaining to approvals, rights, permissions and/or permits concerning the Repair. C. Future Conduct of Zippin and Town This Agreement does not compromise, release or excuse Town from any liability for or resulting from any culpable acts or omissions by it subsequent to the date of this Agreement. D. Miscellaneous Provisions 1. Zippin agrees to provide, at the same time as their delivery of this Agreement as signed by them to the attorney for Town, a legal description of the Property sufficient for recording purposes and to cooperate with Town hereafter in signing such other or further document(s) as may be necessary in order to complete and allow the recording of that document shown at Exhibit A. Zippin agrees to have notarized their signatures to the Acknowledgment of (in the form shown at Exhibit A) and to allow such Acknowledgment to be recorded on the Title of the Property at the discretion of the attorney for Town following delivery of the payment specified in II(A)(1). 2. This is a compromise settlement of disputed claims and Town's consideration for this Agreement shall not be deemed to be or construed as an admission of liability to Zippin by Town. 3. Zippin and Town shall bear their own attorneys' fees and costs. 4. Zippin and Town have carefully read this agreement, know what is in it and sign it freely and voluntarily. Town acknowledges and represents that its signatory hereto s so authorized and eT.titied. 5. In entering into this Agreement, Zippin has not been influenced by any statement or representation by Town, its employees, agents or representatives. 6. This Agreement contains the entire understanding and agreement between Zippin and Town. Its terms are contractual, not a mere recital and shall be interpreted in accordance with the laws of the State of California. G PPIp~~ ~ 4 7. This Agreement may be signed in counter-parts, with each counter- part so signed having the same force and effect as the other and with the counter-parts being hereafter interpreted and construed as if signed on the same signature page. IT IS SO AGREED. Dated: Dated: Dated: CALVI'N' WIN t 2 J. i" R I ZIP1' TOWN F TIBUROI/ 5 ACKNOWLEDGMENT OF STATUS OF PROPERTY Calvin Zippin and Patricia Zippin hereby acknowledge that, for reasons sufficient to Town of Tiburon and themselves, Town has paid to them the amount of TEN THOUSAND and NO1100 DOLLARS ($10,000.00) as a contribution toward the ultimate cost of the repair and/or replacement of a certain corrugated metal storm drain pipe which is located near, but outside, that certain storm drain easement which was dedicated to, but not accepted by, the Town on the tentative subdivision map for "Hacienda Terrace, Unit 1" and specifically on, at least in part, that property now commonly known as 4 Warren Court. Calvin and Patricia Zippin further acknowledge that the aforementioned corrugated metal storm drain pipe h,.s become so aged that they desire and prefer to have said pipe repaired and/or replaced and/or relocated, all as they may hereafter decide and determine to be most advisable, efficient and/or desirable. In order to assist with the expense thereof, they have solicited the aforementioned contribution from Town of Tiburon which, for reasons satisfactory to itself, has consented to contribute under certain circumstances. Patricia and Calvin Zippin further acknowledge and confirm, without reservation or qualification of any kind whatsoever, (1) that the aforementioned payment or contribution is not intended to be, and shall be neither interpreted nor construed to be, at any time for any reason, an exercise or expression of dominion, control, ownership, responsibility or acceptance, in whole or in part, express or implied, by the Town concerning or pertaining to either the aforementioned storm drain pipe or the aforementioned easement and (2) that the aforementioned payment or contribution shall not be interpreted, construed or understood, implicitly or inferentially, explicitly or expressly, by anyone at any time as either participation (substantial or otherwise) by the Town in any aspect of the aforementioned repair, replacement or relocation (including, but not limited to, planning, designing, locating, supervising, approving, installing, constructing, directing, requiring, recommending or maintaining the same). In so doing, it is the intent and desire of Calvin Zippin and Patricia Zippin to acknowledge and confirm that all aspects of what may be the planning, design, placement and construction of the aforementioned storm drain pipe are undertaken and/or accomplished without direction, recommendation or representation by the Town. Dated: , 2002 CALV IN C Dated: X2002 ATRICIA Z. RPIN - CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California PPQIO ss. County of OnJ 1 0 before me, ~U~WAU_[ ~ I Date Name and Title of Officer (e.g., " ane oe, Notary Public') personally appeared D U d JJ , ame(s) of Signer(s) NICK WAS Commission # l Z ~Notary Public - Qu triia Main Cou* roved to me on the basis of satisfactory evidence 3 to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me thate/they executed the same in III /their authorized capacity(ies), and that by h .s/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS han jad ial seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: L_ Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) C aimed by Signer vh~ Signer's Name: ❑ ( ❑ IN ❑ Individual Corporate Officer - Title(s): Partner - ❑ Limited ❑ General Attorney-in-Fact Trustee Guardian or Conservator Other: Signer Is Representing: Top of thumb here 0 1999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationainotary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827