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HomeMy WebLinkAboutAgr 1998-01-28 (Fingerhut)a Brekhus Williams PETER a BREKHUS Wester C SCOTT A. WILIIAMS BARRY F. WESTER & Ha SAN FRANCISCO OFFICE 44 MONTGOMERY S= SUITE 1000 ~ ROBERT P. HALL, JR. ll MATTHEW a BREKHUS SAN FRANCISCO, CA 94104 LINDA J. PHILIPPS ATMRNEYS AT LAW (415)296 9962 PAULA M. WEAVER 1000 DRAKES LANDING ROAD GREENBRAE, CA 94904-3027 FACSIMILE (415) 461-7356 (415) 461-1000 January 21, 1998 John Sharp, Esq. Sharp & Brown 630 Las Gallinas Road San Rafael, CA 94903 Re: Fingerhut v. Town of Tiburon et al.; Marin County Superior Court Case No. 171918 Dear John: Enclosed please find the signed copy of the settlement agreement executed by my clients. I believe I have already sent you a copy of a dismissal, however, I am sending you another signed copy which you can file. My clients forgot to bring a check in the amount of $650.00. By copy of this letter, I am asking that they either mail or drop it off at City Hall. After you get the agreement executed by the Town Officials, would you please return it to me, along with a file-marked copy of the dismissal. Thank you for your cooperation in resolving this matter. Best_ reg'ar , Peter B. Brekhus PBB:mjs Enclosure cc: Allen & Rose Fingerhut fu' fit J r~ SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE OF CLAIMS This Agreement is by and between Allen and Rose Fingerhut (hereinafter "Fingerhuts"), and the Town of Tiburon, the Tiburon Town Council and the individual members thereof, namely Terry Hennessey, Andrew Thompson, Jerry Thayer, Mark Ginalski, and Nicky Wolf (Wolf, Thayer and Ginalski were council members at all times relevant hereto) (all of the aforenamed hereinafter referred to collectively as the "Town"). The effective date of this Agreement is the date first affixed hereinbelow. RECITALS A. On May 18, 1995, the Town's Design Review Board (hereinafter referred to as "Board") held a duly noticed public hearing regarding the site plan and architectural review of a proposed single dwelling at 10 St. Bernard Lane, Tiburon, (the "Property") more specifically known as Marin County Assessor's Parcel #59-071-56 & 57, proposed by Jared Polsky, Architect, on behalf of the Fingerhuts. B. Said hearing was continued to June 15, 1996 and later to July 6, 1995, to allow modification of the plans in response to comments from the Board, which modifications included the reduction of certain design features of the structure. C. On July 6, 1995, after closing the public hearing, the Board approved the proposed structure with conditions. D. Said approved conditions imposed certain design restrictions and a limited color palette for the exterior of the structure. E. On August 1, 1996, the Board held a duly notice public hearing to consider certain modifications to the approved plans that had been requested by the Fingerhuts, which requested modifications included the addition of chimney caps. F. On August 1, 1996, after closing the public hearing, the Board approved some of the requested modifications, but denied others that it found would increase the visual intrusiveness and potential view blockage of the structure, which denied modifications included the addition of chimney caps. G. As the project neared completion in 1997, Town staff received several complaints from neighbors that the structure had been painted with a palette of colors that did not comply with the color palette approved by the Board. H. On May 7, 1997, the Fingerhuts, by and through their Architect, Jared Polsky, filed an application for certain changes to the Board's approval of the project, including a modified color palette reflecting the colors already used by- the Fingerhuts to paint the structure and adding chimney caps. I. On May 15, 1997, the Board held a duly noticed public hearing to consider the proposed modifications to the previously approved plans, and approved the application with conditions. J. On May 27, 1997, Michelle Roads, the Hill Haven Homeowners Association, Jerry Riessen, Mel and Ruth Ronick, Dr. Ralph and Diana Cavalieri and William and Sandra Stucky (hereinafter, collectively, the "Neighbors") filed an appeal of the Board's decision insofar as it approved a new color palette and chimney caps. K. Said appeal alleged that the new color palette violated the Town's Zoning ordinance and Design Guidelines in that it permitted colors that were not earth tones, were not harmonious with existing development in the vicinity and would stand out in sharp contrast with natural earth color or vegetation on the site and other development in the area and would further maximize the project's intrusion on the neighborhood, and, as a result of these problems, would increase the adverse visual impacts of the project on the neighborhood. L. Said appeal further alleged that the Board's approval of the new chimney caps also violated the Town's Zoning Ordinance and Design Guidelines in that the Board lacked sufficient information to evaluate the potential adverse impact of the chimney caps on the height and bulk of the chimneys and the potential for view blockage and visual intrusion. M. The appeal came before the Town Council on July 2, 1997, at which time the Town Council held a duly-notice public hearing on the appeal and after hearing all testimony and reviewing all documents in the record, the Town Council determined that the approval of the new color palette and chimney caps violated the Town's zoning ordinance and guidelines. N. Based on said findings, the Town Council determined to uphold the Neighbors' appeal, required the Fingerhuts to comply with the color palette originally approved by the Board on July 6, 1995 and remanded the issue of the new chimney caps to the Board with a directive that the Board consider physical mock-ups of the new chimney caps, and alternatives that could minimize their visual intrusiveness. 0. On November 10, 1997, the Fingerhuts filed against the Town their First Amended Complaint in the Superior Court of California, County of Marin, action #171918. P. Thereafter, on November 12, 1997, Fingerhut filed against the Town an amended verified complaint for preliminary injunction, declaratory relief, taking an attorney's fees and petition for writ of mandate. The Town denies all allegations set forth in the Fingerhut's pleadings filed in the afore-mentioned litigation. 2 Q. On or about November 21, 1997 it came to the attention of the Town, by and through its building official, Dean Bloomquist, that the Fingerhuts had taken occupancy of the Property prior to final inspection and issuance of an occupancy certificate in violation of the Uniform Building Code and in violation of a Non-Occupancy Agreement signed by the Fingerhuts. R. Thereafter, the Fingerhuts and the Town commenced negotiations, wishing to avoid the risks and expenses of continued prosecution and defense, the litigation instituted by the Fingerhuts and desiring to resolve their differences by way of an Agreement of Settlement. NOW, THEREFORE, in consideration of the terms, promises and covenants herein, and for good and valuable consideration, it is agreed as follows: 1. Each of the undersigned parties, for the consideration and conditions set forth in Paragraphs 1 to 20 below, do hereby mutually and for their agents, servants, successors, executors, administrators and assigns release, acquit and forever discharge each of the other afore-mentioned parties and their agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations, or partnerships of and from any and all claims, including but not limited to actions, causes of action, demands, rights, damages, costs, loss of service, expenses, and compensation whatsoever which the undersigned now has or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen, bodily and personal injuries and property damage and the consequences thereof resulting or to result from the event or events which are the subject matter of that action entitled "Fingerhut v. Town of Tiburon, et al., Marin County Superior Court case # 171918." 2. The Fingerhuts shall pay to the Town the sum of $650 as administrative costs in conjunction with the processing of the appeal, inspections and permits necessary to the Fingerhuts' occupancy of the residence, in full settlement and compromise of this action and in release and discharge of any and all claims and causes of action made in this action, and in release and discharge of any and all claims and causes of action arising out of the event referred to in the pleadings in this action. 3. The Town agrees to accept said sum in full settlement and compromise of the action and agrees that such payment shall fully and forever discharge and release all claims and causes of action, whether now known or now unknown, resulting or to result from the event or events which are the subject matter of the action. 4. The Town, by and through its town council, hereby agrees that with respect to the neighbors' appeal as set forth in the Town's resolution #3236 requiring the Fingerhuts to comply with the color palette originally approved by the Board on July 6, 1995, the Town shall take no further action to enforce the effect of Resolution 3236, such that the Fingerhuts shall be allowed to retain the colors and chimney caps currently existing at the property. 3 5. The Fingerhuts further agree to be reasonable as to their usage and as to the level of light emanating from that certain chandelier installed at that Property to the extent said light is in the line of sight of any adjacent neighbors. 6. The Fingerhuts acknowledge that each and every resident of the Town and/or Town Neighborhood Group is a third parry beneficiary of this Agreement, such that if the Fingerhuts attempt to bring an action against any such resident and/or Neighborhood Group arising from the subject matter of this action, this Agreement may be pled and enforced as an affirmative defense in any such action. 7. This mutual release does not constitute an admission by any party of any liability for any loss or damage. It is the result of a compromise of disputed claim. 8. Payment of the settlement amount shall be made as soon as reasonably possible, e.g. within thirty (30) days. 9. Each party will bear its own attorneys' fees and court costs. 10. Counsel for each of the parties to this agreement represents that he/she has fully explained to his/her client(s) the legal effect of this agreement and of the Release and Dismissal with Prejudice provided for herein and that the settlement and compromise stated herein is final and conclusive forthwith, and each attorney represents that his/her client(s) has freely consented to and authorized this agreement. 11. This Agreement is subject to approval by the Town Council of the Town of Tiburon within a reasonable time. 12. The Fingerhuts acknowledge that they have not relied on inducements, promises or representations other than those expressed herein, and that the terms of this Agreement are contractual and not a mere recital. 13. The Fingerhuts and the Town acknowledge their familiarity with the provisions of Civil Code 1542, which section reads: "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." Each party hereto hereby waives the application of Civil Code Section 1542 quoted above. Said waiver is made with the knowledge of the significance and consequence thereof, and with the recognition that should the Fingerhuts in the future suffer damages arising out of the incident which is the subject of this action and/or the circumstances which arise from the subject of the afore-described litigation, that the Fingerhuts will not be permitted to make a claim for those damages. Furthermore, the Fingerhuts 4 acknowledge that they intend these consequences even as to claims for injury and /or damages that may exist as of the date of this release but of which they have no knowledge, and had they such knowledge the same would have materially affected their decision to execute this release, and irrespective of whether this absence of awareness on the part of the parties hereto is the result of ignorance, oversight, error, negligence, or any other cause. 14. Upon execution of this Agreement and fulfillment of the obligations herein, the Fingerhuts shall cause to be executed and filed with the Marin County Superior Court a dismissal with prejudice of the pending litigation. 15. This Agreement constitutes the entire agreement between the parties. 16. This Agreement and each of the provisions hereof, has been reached as a result of negotiations by and between the parties and their respective attorneys. Each of the parties expressly acknowledges and agrees that this Agreement shall not be deemed to have been prepared by or drafted by any particular party, and the normal rules of construction as to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 17. This Agreement may be executed in one or more counterparts, and when so executed, each counterpart shall deemed to be an original. 18. In the event suit is brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover as an element of its cost of suit, a reasonable attorney's fee to be fixed by the Court. The "prevailing party" shall be the party who is entitled to recover its costs of suit, whether or not the suit proceeds to final judgment period. "Suit" shall refer to formal litigation, mediation, arbitration or any other action requiring the party hereto to involve the services of an attorney to effect the compliance of the other party with the terms and provisions of this Agreement. 19. If any provision or any part of any provision of this Agreement is held to be invalid, unenforceable or contrary to public policy, law, statute, regulation, or ordinance, then the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable. 20. This Agreement may and shall be pled as a full and complete defense to, and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or maintained in breach of this Agreement. Dated: 1998 Mayor of the tq* of Tib on Approved as to Form Dated: o , 1998 Dated: 2 (J 1 ~ , 1998 Dated: F l .2-0 cA ~ , 1998 Ann Danfort , W~rm Attorney for Town of Tiburon Ally nngerhut Rose Fingerhut Approved as to Form Dated: / , 1998 K:\SB\0633\25\FINGER.DOC Peter Brekhus, Attorney for Allen and Rose Fingerhut 6