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HomeMy WebLinkAboutAgr 2006-10-06 (Siciliano) RECEI\/ED OCT 2 4 2006 SETTLEMENT AGREEMENT AND RELEASE TOWN MANAGERS OFFICE TOWN OF TIBURON This Settlement Agreement and Release ("Agreement") is made this 6th day of October 2006 (the "Effective Date") by and between Plaintiff Town of Tiburon ("Town") and Defendant CYnthia L. Siciliano dba Cindy's Hair Studio ("Siciliano"), who are collectively referred to as the "Parties. " RECIT ALS . A. On June 6, 2003, the Town issued a citation ("Citation No. 215") to Siciliano for a violation of the Town's Sign Ordinance and Downtown Tiburon Design Handbook (collectively, the "Sign Regulations"). B. Siciliano subsequently filed a civil action challenging the legality of the Sign Regulations (Marin County Superior Court Case No. CV 033926 and First District Court of Appeal Case No. A 108147). Final Judgment was entered in favor of the Town, and the time to appeal lapsed. C. The Town subsequently filed a civil action to recover the fines which had accrued under Citation No. 215, at a rate of $1 03 per day (Marin County Superior Court Case No. CV 062833 ("Instant Action")). D. Siciliano answered the Complaint in the Instant Action. She denied a legal obligation to pay the fines. E. The parties to this Agreement recognize that there is significant time, expense and risk involved in determining Siciliano's obligations to pay the fines, or a portion thereof. Thus, the Parties enter this Agreement in lieu of further litigation. AGREEMENT 1. The above recitals are incorporated herein. 2. Settlement Amount. Siciliano agrees to pay and the Town agrees to accept the sum of Twenty TV/O Thousand Dollars ($22,000) as full, final and complete settlement of all claims that have been or could be asserted against Siciliano which relate to the subject matter of the Instant Action. 3. Mutual Release. Except for the obligations specified, the Town and Siciliano hereby release and forever discharge each other, together with their employees, officers, agents, representatives, trustees, directors, partners, stockholders, attorneys, successors, assigns, heirs, personal representatives and executors, and all persons, firms, associations, co-partners, co- venturers, insurers, contractors, engineers, subcontractors, subsidiaries, parents, affiliates, or corporations connected therewith, and each of them from any and all claims, debts, liabilities, demands, obligations, costs, expenses, attorneys' fees, actions, and causes of actions of every nature, character, and description whether known or unknown, directly or indirectly arising out of any matter, fact, and/or allegation related to the Instant Action. 962094v 1 29146/0004 4. Waiver of California Civil Code Section 1542. The parties to the releases in paragraph 3 above hereby acknowledge that they are aware of the provisions of section 1542 the Civil Code, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by hin1 or her must have materially affected his or her settlement with the debtor. Having been so informed, the parties to the releases in paragraph 3 above hereby elect to and do waive the provisions and benefits of Civil Code section 1542, effective upon the execution of this Settlement Agreement. 5. ~ent Proces~. Siciliano shall pay to the Town the Settlement Amount, set forth in paragraph 2 above, by a single cashier's check in the amount of $22,000.00 made out to the Town ofTiburon. Siciliano shall make the payment within thirty (30) calendar days of the Effective Date, which payment shall be delivered to the Town Clerk at Town of Tiburon, 1505 Tiburon Boulevard Tiburon, CA 94920. ' 6. No Admission of Liability. Nothing herein shall be construed as an admission on the part of any of the parties of any claims, delnands, causes of action, obligations, damages or liabilities asserted by any other party. 7. Dismissal of Instant Action. Within fifteen (15) days of receiving payment of the Settlement Amount by Siciliano, the Town shall cause to be filed a dismissal, with prejudice, of the Instant Action. 8. Attorneys' Fees and Costs. The Parties to this Agreement agree to bear their own attorneys' fees and costs incurred in resolving the dispute and reaching this settlement. However, if any action or other proceeding is brought for the enforcement or interpretation of this Agreement, or because of an alleged dispute, default or misrepresentation in connection with any of its provisions, the prevailing party will be entitled to recover reasonable attorneys' fees and other costs incurred in that action or proceeding. - 9. Authorization to Execute. Each party represents that the individual signing this Settlement Agreement is authorized to bind the party on whose behalf he or she signs. 10. Entire Agreement. As to the matters set forth herein, this Settlement Agreement is the entire, integrated agreement and understanding of the parties. 11. Modification. This Settlement Agreement may be modified only by a writing signed by the parties. 12. Severability. If any part of this Settlement Agreement is found to be void, invalid or unenforceable, the remainder shall remain in full force and effect and shall be interpreted to carry out the parties' intent with respect to their obligations and rights. 962094vl 29146/0004 13. Drafting of Agreement. The drafting and the negotiation of this Settlement Agreement has been participated in by each of the Parties or their counsel and, for all purposes, this Settlement Agreement shall be deemed to have been drafted jointly by all parties. 14. Successors and Representatives. This Settlement Agreement shall be binding on and shall inure to the benefit of the successors and assigns of each party. 15. Informed Consent. Each party declares that prior to the execution of this Settlement Agreement, it and/or its duly authorized representatives have apprised themselves of sufficient relevant data, either through attorneys, experts or other sources of their own selection, in order to intelligently exercise their judgment in deciding whether to execute, and in deciding the contents of, this Settlement Agreement. Each party states that this Settlement Agreement is entered into freely and voluntarily, upon the advice and with the approval of its counsel. 16. Applicable Law. This Settlement Agreement shall be interpreted in accordance with California law. 17. Execution in Counterparts. This Settlement Agreement may be executed in counterparts, and photo and fax copies shall constitute good evidence of such execution. This Settlement Agreement is made as of the day and date first set forth above. TOWN OF TIBURON CINDY SICILIANO dba CINDY'S HAIR SALON /"} By: 7t1/l-L~~1~fLA-L-~ Margaret (E ggy) Curran Town Manager ~~.~ By: ~~~ .~ C ia L. Siciliano APPROVED AS TO FORM: APPROVED AS TO FORM: ;- o/~h By:/" (' Lc>'- Ann Danforth T own Attorney ----, By: cliard K. Critchlow ttorneys for CYnthia L. Siciliano dba Cindy's Hair Salon 962094vl 29146/0004