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HomeMy WebLinkAboutAgr 1998-09-28 (Kasselik/Kol Shofar)TEL (415) 788- 1945 FAX (415) 989-8947 LAW OFFICES OF CHARLES J. WISCH 465 CALIFORNIA STREET, SUITE 200 SAN FRANCISCO. CALIFORNIA 94104 October 17, 1998 Ann R. Danforth, Esq. Town Attorney Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Re: Kasselik et al. v. Town of Tiburon, et al. Dear Ms. Danforth: u yj~3~Yf '.il iFY;it:ti YE INTERNET ~•`':F 75227.2603@compuserve.com'' " Enclosed is a copy of the settlement agreement executed by the plaintiffs and Kol Shofar. Would you please arrange to have Mr. Kleinert and yourself sign in the indicated spaces, and then return the fully executed agreement to our attorney, Stewart Foreman, at Landels, Ripley & Diamond, 350 The Embarcadero, San Francisco, CA 94105. Mr. Foreman will then forward a copy to the plaintiffs' counsel, and advise our Executive Director, Michael Liepman, to forward to the plaintiffs' counsel our check for the $21,000 settlement. Thereafter, the plaintiffs should file a dismissal with prejudice. Your continuing courtesy and cooperation are greatly appreciated. Very truly s, Charles J. Wisch CJW:c cc: Stewart Foreman, Esq. Michael Liepman, Executive Director KS16.LTR DUPLICATE SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE This Settlement Agreement and Mutual General Release ("Agreement") is entered into effective this ~!-?S day of September 1998, by and between Lisa E. Kasselik, Mark J. Kasselik, Lee H. Carson, Deidra A. Carson, Barbara B. Harney, Christopher J. Harney, Susan R. McQuaid, and J. Dennis McQuaid (collectively "Plaintiffs"), Town of Tiburon (erroneously sued as "City of Tiburon") and Tiburon Town Council ("Tiburon"), and Congregation Kol Shofar ("Kol Shofar"). RECITALS A. On August 20, 1997, the plaintiffs filed an action against Tiburon and Kol Shofar in the Superior Court of the State of California in and for the County of Marin entitled Lisa E. Kasselik, Mark J. Kasselik, Lee H. Carson, Deidra A. Carson, Barbara B. Harney, Christopher J. Harney, Susan R. McQuaid, and J. Dennis McQuaid, Petitioners, v. City of Tiburon and Tiburon Town Council and Does I through 10, Respondents, Congregation Kol Shofar Synagogue, Real Party in Interest, No. 171 X90 ("the Lawsuit"). B. The Lawsuit arose from an amendment by Tiburon of a conditional use permit issued to Kol Shofar. C. The parties to this Agreement desire to settle all their claims against each other, whether previously asserted, pending, presently outstanding, or which they may have or claim to have. KSI.AGM 1 Now, therefore, in consideration of the above and the mutual covenants and agreements herein expressed, the parties agree as follows: 1. Releases and Dismissals 1.1 Mutual Release and Discharge The parties, on behalf of themselves and each of their officers, directors, agents, attorneys, representatives, employees, parents, subsidiaries, affiliates, assignees, assignors, insurers, successors, and predecessors, hereby forever release and discharge each other and their present and former officers, directors, agents, attorneys, representatives, employees, parents, subsidiaries, affiliates, assignees, assignors, insurers, successors, and predecessors, from any and all present or past claims, demands, losses, liabilities, obligations, or causes of action, including, without restricting the generality of the foregoing, claims for costs or attorneys' fees, known or unknown, relating to or arising out of the Lawsuit. Said released and discharged claims, demands, liabilities, obligations, or causes of action consist of those claims or causes of action either stated or which could have been stated in the Lawsuit. 1.2 General Waiver of All Past and Present Claims Except for the duties and obligations set forth herein, the parties hereto expressly waive and assume the risk of any and all claims, demands, obligations, or causes of action of any nature whatsoever which exist against or between themselves relating to or arising out of the Lawsuit, including those claims, demands, obligations, or causes of action which are presently not known or suspected to KS1.AGM 2 exist, whether through ignorance, oversight, error, negligence, or otherwise. The parties intend that this Agreement be a complete and final accord and satisfaction and general mutual 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 Lawsuit. 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." Each party represents and warrants that it has been advised by counsel of the content and import of Civil Code Section 1542 and voluntarily waives and relinquishes any right or benefit conferred by Section 1542, 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. In connection with such waiver and relinquishment, each party acknowledges that it or its attorneys, employees, agents, officers, or directors may hereafter discover claims or facts in addition to or different from those now known or believed to KSI.AGM 3 exist, but that it is each party's intention to fully, finally, and forever settle and release each other from all obligations, claims, liabilities, causes of action, demands, disputes, and differences, known or unknown, suspected or unsuspected, relating to or arising out of the Lawsuit. 1.3 Preservation of Future Potential Claims Each party agrees that this agreement and release does not apply to or affect any future claims any party may have against any other party with regard to any future applications for permits or variances by Congregation Kol Shofar to the Town of Tiburon, and each party hereby reserves its rights to assert such future claims and defenses. 2. Consideration. 2.1 Within ten business days following the execution of this Agreement, Kol Shofar shall deliver to Plaintiffs the sum of $21,000. 2.2 Upon execution of this Agreement and receipt of the payment set forth in paragraph 2. 1, Plaintiffs shall file with the Superior Court a dismissal of all claims with prejudice. 3. Miscellaneous. 3.1 Successors and assigns. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, whether so expressed or not. 3.2 Settlement Not an Admission. It is understood and agreed that this Agreement is a compromise settlement of disputed claims, and that nothing herein shall be KSI.AGM 4 construed as an admission of liability by any of the parties hereto, except as otherwise set forth herein. 3.3 Governing law. This Agreement and the transactions contemplated hereby are to 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. 3.4 Attorneys' Fees. In the event of any dispute regarding the interpretation or performance of this agreement requiring recourse to any court, the prevailing party will be entitled to recover its reasonable attorneys fees and costs. 3.5 Payment of Expenses. Except as specifically provided for herein, each party shall bear its own expenses, including without limitation, attorneys fees, whether or not the transactions contemplated hereby are consummated. 3.6 Entire Agreement. This Agreement constitutes the entire agreement between parties hereto with respect to the subject matter hereof, 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 in each instance such amendment, alteration, or modification is expressed in a written instrument duly executed by the party or parties making such amendment, alteration, or modification. 3.7 Counterparts. This Agreement may be executed simultaneously in any number of duplicate copies, each of which shall be deemed an original, but all of which KS1.AGM 5 together shall constitute one and the same instrument. Facsimile signatures shall be deemed to constitute original signatures. 3.8 Headings. The headings in this Agreement are for convenience of reference only and do not restrict or modify any term or provision hereof. 3.9 Waiver. The failure of any party to insist, in one or more instances, on performance of any term or condition of this Agreement shall not be construed as a waiver or relinquishment of any right granted hereunder or of the future performance of any such term, covenant, or condition, but the obligations of the parties with respect thereto shall continue in full force and effect. 3.10 No Third Party Beneficiaries. The parties hereto do not intend, and nothing in this Agreement shall be deemed, to give any person other than the parties hereto any rights hereunder. 3.11 Warranty of Authority. Each of the persons executing this- agreement hereby warrants that he or she has been duly authorized to execute this agreement on behalf of the party he or she represents. 3.12 Severability. If any term or provision of this Agreement shall be held invalid or unenforceable to any extent, the remaining terms and provisions of this Agreement shall not be affected thereby, and each term and provision shall be valid and enforceable to the fullest extent permitted by law. KSI.AGM 6 In witness whereof, the parties hereto have executed this Agreement in counterparts as of the date first above written. Lisa E. Kasselik Mark J. Kasselik Deidra A. Carson Barbara B. Harney KS 1.AGM G'~G~I uc ,t Su . McQuaid . Dennis McQuaid Town of Tiburon and Ti on Town Council By: lit D ob.ert fm. Klei @A Its Town Manager (A J-t Congregation Kol Shofar By: _ / I e Todd Stettner Its President APPROVED AS TO FORM AND CONTENT: McQUAID, METZLER, McCORMICK & VAN ZANDT BY. Michael J. V Zand Attorneys for Plaintiffs Lisa E. Kasselik, Mark J. Kasselik, Lee H. Carson, Deidra A. Carson, Barbara B. Harney, Christopher J. Harney, Susan R. McQuaid, and J. Dennis McQuaid KS 1.AGM 8 TOWN OF TIBURON By: Ann Danforth Town Attorney Attorneys for Defendants Town of Tiburon and Tiburon Town Council LANDELS, RIPLEY & DIAMOND By: Stewart H. Foreman Attorneys for Real Party in Interest Congregation Kol Shofar KSI.AGM 9