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HomeMy WebLinkAboutAgr 2011-06-07 (Jones Hall)SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made and entered into by and between TOWN OF TIBURON ("the Town"), on the one hand, and JONES HALL, A PROFESSIONAL LAW CORPORATION ("Jones Hall"), on the other hand, with the Town and Jones Hall collectively referred to herein as "Parties," or individually as a "Party." RECITALS A. Jones Hall has represented the Town as bond counsel and has provided legal services to the Town with respect to the formation of the Del Mar Valley Utility Undergrounding Assessment District, the Del Mar Valley Supplemental Utility Undergrounding Assessment District, the Lyford Cove Utility Undergrounding Assessment District, the Lyford Cove Supplemental Utility Undergrounding Assessment District, the Stewart Drive Utility Undergrounding Assessment District, and other assessment districts within the Town (all collectively, "Districts"). B. The Town has asserted to Jones Hall that it may have certain claims against Jones Hall arising from the services that Jones Hall provided to the Town with respect to the Districts ("Claims"). The Town also has asserted that it may have claims against other parties that provided professional services to the Town in connection with such Districts. C. Jones Hall disputes the Town's alleged Claims; contends that they have no merit; and further contends that Jones Hall has no liability to the Town or to any other person in connection with any services that Jones Hall provided in connection with the Districts. D. In an effort to resolve the Claims and Jones Hall's defenses thereto without litigation, the Parties, represented by counsel, attended a mediation hosted by Jerry Spolter, Esq., of JAMS, on January 31, 2011, and further continued settlement negotiations through their respective counsel and with the mediator's assistance. The Parties wish to avoid the time, cost, and uncertainties inherent in litigation and now agree that it is in their mutual benefit to settle and to forever compromise and release any and all Claims asserted or which could be asserted by the Town against Jones Hall, whether known or unknown, pursuant to the terms set forth herein. NOW THEREFORE, for and in consideration of the terms and conditions of this Agreement, and the mutual benefits to be derived herefrom, the Parties agree as follows: AGREEMENT 1. Settlement Payment. Jones Hall shall pay to the Town the sum of Three Hundred Ten Thousand Dollars ($310,000.00) in full settlement of the Claims ("Settlement Payment"), by wire transfer pursuant to the Town's wire transfer instructions, within 10 business days of the Effective Date as defined in Section 3 herein. SETTLEMENT AGREEMENT 2. The Town's Covenant Not to Sue Other Parties. The Town covenants to Jones Hall and agrees not to assert any claims or causes of action, formally or informally, against, and further covenants and agrees not to sue, any parties in any action or proceeding to recover any damages or for any other relief, arising from the formation of any District(s) in which Jones Hall had any role as bond counsel or otherwise provided services to the Town ("Covenant Not To Sue"). The Town acknowledges that its Covenant Not To Sue third parties is a material condition of this Agreement upon which Jones Hall is expressly relying as an inducement to enter into this Agreement. In the event that the Town, notwithstanding its Covenant Not To Sue, subsequently makes any determination or takes any steps to assert or prosecute, formally or informally, any claim or causes of action against any third parties in contravention of the Covenant Not To Sue, then the Town shall (a) immediately give written notice to Jones Hall, and (b) immediately apply to the trial court in which it has brought any such action, or immediately commence an action in a court of competent jurisdiction, to seek an order pursuant to Cal. Code of Civil Procedure Section 877.6 ("Section 877.6") for a determination that the Town's settlement with Jones Hall set forth in this Agreement has been made in "good faith" within the meaning of Section 877.6 ("Good Faith Order"). The Town and Jones Hall agree to cooperate with respect to the application to a court for a Good Faith Order, including stipulating to any motion or application by Jones Hall to intervene in such action. If the court to which such application is made does not enter a Good Faith Order, or if the court enters a Good Faith Order which is not upheld on any appellate challenge and does not become a final order pursuant to the applicable court rules, then (a) this Agreement (with the exception of the provisions of this sentence) shall immediately be rescinded; (b) the Town shall immediately return all of the consideration paid by Jones Hall to the Town in accordance with this Agreement, plus interest at 7 % per annum, from the date of the wire transfer of the Settlement Payment; and (c) any applicable statute of limitation period that had not expired as of the Effective Date shall be extended for a period of 30 days following the date of the rescission, provided, however, that such extension shall not act to revive or reinstate any statute of limitation period that had expired prior to the Effective Date. 3. Effective Date. The "Effective Date" of this Agreement shall be the first business day following the date that the last signatory hereto signs this Agreement. 4. The Town's Release of Jones Hall. As ofthe Effective Date, the Town, on behalf of itself and all of its predecessors, successors, assigns, divisions, subdivisions, affiliated or related entities or organizations, respective past and present agents, attorneys, administrators, managers, personnel, representatives, employees, officers, consultants, experts, underwriters, insurers, re- insurers, and each of them, and anyone claiming through, by or under them, including but not limited to any individual taxpayer, property owner, resident of the Town or other person acting or purporting to act on behalf of the Town (collectively, "the Town Releasing Parties"), does hereby release and forever discharge Jones Hall, and all of its predecessors, successors, assigns, parents, subsidiaries, divisions, subdivisions, affiliated or related entities or organizations, respective past and present agents, attorneys, administrators, managers, personnel, representatives, members, trustees, shareholders, employees, directors, officers, consultants, experts, underwriters, insurers, re-insurers, and each of them, and anyone claiming through, by or under them (collectively, "Jones Hall Released Parties"), from any and all claims, actions, causes of action, suits, demands, rights, judgments, damages, losses, refunds to property owners in any Districts, interest payments, payments on bonds, attorneys' fees, costs, expenses, settlement payments to third parties, legal fees and expenses incurred in any litigation, and any other category or type of claimed loss or damage, of -2- SETTLEMENT AGREEMENT any nature whatsoever, known or unknown, suspected or unsuspected, fixed or contingent, which the Town and the Town Releasing Parties now have, own, or hold, or at any time previously had, owned, or held, arising out of conduct or matters occurring on or prior to the Effective Date of this Agreement, and which arise out of or relate to any services whatsoever (including without limitation bond counsel services, legal services, or other services) provided by Jones Hall to the Town or any other person, with respect to or arising from any Districts; any payments or obligations incurred by the Town for engineering, underwriting, financial advisory or other services in connection with any of the Districts; any payments or obligations incurred by the Town for legal fees and expenses paid to the law firms of McDonough Holland & Allen, Meyers Nave Riback Silver & Wilson, A Professional Law Corporation, Moscone Emblidge & Sater LLP, The Law Office of Frank Mulberg, Jones Hall, or any other attorneys or law firms; any legal fees and expenses, or any other fees and expenses, paid to any attorney, consultant, party, person or entity in connection with any of the foregoing Districts and/or with the litigation styled Bonander v. Town of Tiburon, Marin County Superior Court Case No. CV 052703, and reported at 46 Cal. 4th 646 (2009), Town of Tiburon v. Bonander, Marin County Superior Court Case No. CV 062153, and reported at 180 Cal. App. 4th 1057 (2009), and/or Mostyn v. Town of Tiburon, San Francisco County Superior Court Case No. CGC-07-469829; any costs incurred and associated with bond calls, prepayment premiums, refunds on assessments and interest on assessments, and any amounts refunded or to be refunded to any property owner in any of the Districts. 5. The Town's Waiver of Civil Code Section 1542. The Town understands and agrees that the foregoing release includes a waiver of the provisions of California Civil Code Section 1542, 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 HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. NOTWITHSTANDING THE FOREGOING CODE SECTION OR ANY OTHER STATUTORY OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT, THE TOWN RELEASING PARTIES, AND EACH OF THEM, AGREE THAT THE ABOVE RELEASES IN THIS SECTION SHALL APPLY TO ALL UNKNOWN OR UNANTICIPATED LOSSES OR DAMAGES WHICH THEY MAY HEREAFTER CLAIM WITH REGARD TO THE SUBJECTS ENUMERATED ABOVE, AS WELL AS THOSE PRESENTLY KNOWN TO ANY OF THE PARTIES. The Town and the Town Releasing Parties acknowledge and agree that they may subsequently discover facts, evidence or legal theories in addition to or different from those which they now know and/or believe to be true with respect to the subject matter of the release herein. However, it is the Parties' intention to fully, finally, and forever settle and resolve all of the disputes and differences, known or unknown, suspected or unsuspected, fixed or contingent, which now exist, may exist or hereto have existed between and among them. In furtherance of such intention, the Town and the Town Releasing Parties acknowledge that each of the respective releases herein given shall be and remain in effect as a full and complete general release, notwithstanding the discovery or existence of any such additional or different facts, evidence or legal theories. -3- SETTLEMENT A GREEMENT 6. Jones Hall's Release of The Town. As of the Effective Date, Jones Hall, on behalf of itself and all of its predecessors, successors, assigns, divisions, subdivisions, affiliated or related entities or organizations, respective past and present agents, attorneys, administrators, managers, personnel, representatives, employees, officers, consultants, experts, underwriters, insurers, re- insurers, and each of them and anyone claiming through, by or under them (collectively, "Jones Hall Releasing Parties"), does hereby release and forever discharge the Town, and all of its predecessors, successors, assigns, parents, subsidiaries, divisions, affiliated or related entities or organizations, respective past and present agents, attorneys, administrators, managers, personnel representatives, members, trustees, elected officials, employees, directors, officers, consultants, experts, underwriters, insurers, re-insurers, and each of them (collectively, "the Town Released Parties") from any and all claims, actions, causes of action, suits, demands, rights, judgments, damages, losses, attorneys' fees, costs, expenses, legal fees and expenses incurred in any litigation, and any other category or type of claimed loss or damage, of any nature whatsoever, known or unknown, suspected or unsuspected, fixed or contingent, which Jones Hall and the Jones Hall Releasing Parties now have, own, or hold, or at any time previously had, owned, or held, arising out of conduct or matters occurring on or prior to the Effective Date of this Agreement, and which arise out of or relate to any services whatsoever (including without limitation bond counsel services, legal services, or other services) provided by Jones Hall to the Town and/or any other person, with respect to or arising from any Districts. 7. Jones Hall's Waiver of Civil Code Section 1542. Jones Hall understands and agrees that the foregoing release includes a waiver of the provisions of California Civil Code Section 1542, 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 HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. NOTWITHSTANDING THE FOREGOING CODE SECTION OR ANY OTHER STATUTORY OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT, THE JONES HALL RELEASING PARTIES, AND EACH OF THEM, AGREE THAT THE ABOVE RELEASES IN THIS SECTION SHALL APPLY TO ALL UNKNOWN OR UNANTICIPATED LOSSES OR DAMAGES WHICH THEY MAY HEREAFTER CLAIM WITH REGARD TO THE SUBJECTS ENUMERATED ABOVE, AS WELL AS THOSE PRESENTLY KNOWN TO ANY OF THE PARTIES. Jones Hall and the Jones Hall Releasing Parties acknowledge and agree that they may subsequently discover facts, evidence or legal theories in addition to or different from those which they now know and/or believe to be true with respect to the subject matter of the release herein. However, it is the Parties' intention to fully, finally, and forever settle and resolve all of the disputes and differences, known or unknown, suspected or unsuspected, fixed or contingent, which now exist, may exist or hereto have existed between and among them. In furtherance of such intention, Jones Hall and the Jones Hall Releasing Parties acknowledge that each of the respective releases herein given shall be and remain in effect as a full and complete general release, notwithstanding the discovery or existence of any such additional or different facts, evidence or legal theories. -4- SETTLEMENT AGREEMENT 8. No Release from Duties or Obligations Created By Agreement. This Agreement does not release any Party from any duties or obligations created by this Agreement. 9. Consideration. The Parties acknowledge and agree that good and valuable consideration has been given for the releases, covenants and agreements set forth herein, and acknowledge the receipt and adequacy of such consideration. 10. No Admission of Liability. The Parties agree that this Agreement is entered into in compromise and settlement of disputed claims, and that execution of this Agreement and the performance of the obligations hereunder is not and shall not be deemed to be an admission of liability, an admission against interest, or acknowledgment of or validation of any claim or defense by any Party hereto. 11. No Assignment of Claims. The Town warrants and represents that it has the sole right and authority to execute this Agreement on its behalf and that it has not sold, assigned, pledged, hypothecated, conveyed, transferred, or otherwise disposed of any of the claims being released herein; that it is the sole owner of the claims asserted and released by the Town and that no other person, including any representative, resident, property owner or taxpayer of the Town (including but not limited to the signatories to the Settlement Agreement and Release of All Claims between, inter alia, The Town and Kevin Mostyn, entered into on or about March 18, 2010, and the Settlement Agreement and Release of All Claims between, inter alia, The Town and Jimmie Bonander entered into on or about March 18, 2010) has any right to assert, prosecute or release any such claims of the Town being released herein; and that the Town's execution of this Agreement constitutes a full and complete release and discharge of those claims. 12. Authority to Execute. Each signatory represents and warrants that he or she has the authority and/or has been duly authorized to execute this Agreement by the Party on whose behalf he or she has signed this Agreement, and that all steps necessary for such authorization have been carried out as required. 13. Settlement Agreement as Public Record. Of material consideration to Jones Hall in entering into this Agreement is the preservation of its good name and reputation, and but for the following covenants, Jones Hall would not have entered into this Agreement. Accordingly, the Parties acknowledge and agree that although this Agreement is and shall at all times be a part of the public record, the Parties covenant and agree not to take any affirmative action to publicize or disclose this Agreement or any of its terms ("Settlement Information") in printed form, electronic form, or otherwise. Notwithstanding the foregoing, the Parties acknowledge that state law, including, without limitation, the Ralph M. Brown Act, California Government Code Sections 54950 et .seq., and the Public Records Act, California Government Code Sections 6250 et seq., imposes specific public reporting and disclosure requirements. Nothing in this Agreement shall require nor shall be interpreted as requiring the Town to withhold information that it is required by law to report or disclose. Notwithstanding the foregoing, it shall not be a breach of this provision for either Party to distribute or disclose any Settlement Information: (i) to its attorneys, accountants or other professionals as necessary to provide their respective professional services to that Party; (ii) to any person or entity to which the Party has a specific public disclosure requirement or reporting -5- SETTLEMENT A GREEMENT obligation pursuant to contract, law or regulation; (iii) to the extent required in response to requests for proposal or insurance applications; (iv) in public proceedings, including without limitation Town Council meetings, minutes, and agenda reports, as may be reasonably necessary for the operation of the Town, or otherwise as may be required by law; or (v) for a Town official, other than the Town Attorney, in response to a direct inquiry concerning the fact of the settlement or any term of this Agreement, where such inquiry involves or implicates Jones Hall or any attorney employed by Jones Hal I or any of the matters released herein (whether specifically or by implication), to acknowledge the existence of the settlement and to refer further questions to the Town Attorney, who, if asked, shall state that the Parties entered into a settlement agreement dated in June 2011, in which neither party admitted fault, and who may disclose the material terms of the settlement in response to such inquiry. 14. Notice. Any notice required pursuant to this Agreement shall be made by confirmed electronic (email) or facsimile transmission and by overnight courier, and shall be effective and deemed received on the first business day following the confirmed email or facsimile transmission or the day of receipt by overnight courier. The addresses and facsimile transmission numbers for purposes of providing notice under this Agreement are as follows: For The Town Ann R. Danforth, Esq. Town Attorney Town of Tiburon 1505 Tiburon Blvd. Tiburon, CA 94920 Facsimile: (415) 435-2438 Email: aanforth( ci.tiburon.ca.us and G. Scott Emblidge, Esq. Moscone Emblidge & Sater LLP 220 Montgomery Street, Suite 2100 San Francisco, CA 94104 Facsimile: (415) 362-2006 Email: emblidge(a~,mesllp.com For Jones Hall Christopher K. Lynch, Esq. Jones Hall, A Professional Law Corporation 650 California Street, 18th Floor San Francisco, CA 94108 Facsimile: (415) 391-5784 Email: clynch(? ioneshall.com -6- SETTLEMENT AGREEMENT and Gilda R. Turitz, Esq. Sideman & Bancroft LLP One Embarcadero Center, 8th Floor San Francisco, CA 94111 Facsimile: (415) 392-0827 Email: tg uritz(a~sideman.com Any Party may provide the other Parties with alternative designations for notice, in writing, in accordance with this Section. 15. Voluntary and Informed Execution. The Parties affirm and acknowledge that they have each read this Agreement; that they agree to all provisions herein after good faith, arms' length negotiations; that they fully understand its terms and their effect; and that they sign this Agreement voluntarily and with the intention of being legally bound thereby. The Parties understand and acknowledge that they are waiving legal rights by signing this Agreement and have consulted with attorneys and other advisors to the extent they desire to do so before signing this Agreement. 16. Successors. This Agreement shall be binding upon and inure to the benefit of the successors, transferees and assigns of each of the Parties hereto. 17. Construction of Agreement. This Agreement is the product of negotiations, joint effort, and preparation by and between each Party and its attorneys. Therefore, the Parties acknowledge and agree that this Agreement shall not be deemed to have been prepared or drafted by any one Party or another. Accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. It is expressly understood and agreed that the headings employed in this Agreement are for convenience only and do not affect substantive rights herein. 18. Attorneys' Fees and Costs. Each Party shall bear all of its own attorneys' fees and costs in connection with the claims and all other matters released herein. In the event of a breach of this Agreement and/or any released matter herein, the prevailing Party shall be entitled to an award of its reasonable attorneys' fees and costs. 19. Amendment to this Agreement. This Agreement may not be altered, amended, modified, or otherwise changed in any respect or particular whatsoever except by a writing signed by all Parties hereto. 20. Waiver. Acceptance by any Party of any performance less than required by this Agreement shall not be deemed to be a waiver of the rights of such Party to enforce all of the terms and conditions of this Agreement. No waiver of any right under this Agreement shall be binding or enforceable unless reduced to writing and signed by the Party to be charged therewith. 21. Reasonable Cooperation. The Parties shall reasonably cooperate with each other, including the execution of all necessary further documents, if any, to carry out the purpose and intent of this Agreement. -7- SETTLEMENT A GREEMENT 22. Governing Law. This Agreement and the releases herein are entered into and shall be enforceable under, construed and interpreted pursuant to the laws of the State of California for agreements made wholly within the state, without regard to its conflicts of laws principles. 23. Severability; Partial Invalidity. If any provision of this Agreement as applied to any Party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable, the same shall, in no way, affect any other provision hereto, the application of such provision in or to any other circumstances, or the validity or enforceability of the releases contained herein as a whole. 24. Execution in Counterparts. The Parties shall execute two (2) originals of this agreement, each of which may be executed in one or more counterparts which together shall constitute a single instrument. It is the intent of the Parties that the copy signed by a Party will be fully enforceable against such Party, and all signed counterparts shall be deemed to be an original. A faxed, electronic (PDF), or digital copy shall have the same force and effect as though it were an original. After execution, one original for each Party shall be delivered to its counsel. 25. Entire Agreement. This Agreement contains all the terms, promises, understandings, and agreements among the Parties with respect to the subject matter herein. The Parties agree that no promises or inducements have been made which caused any Party to sign this Agreement other than those which are expressly set forth in this Agreement. The Parties further agree that this Agreement supersedes any prior or contemporaneous oral and/or written agreements, or representations, if any, between the Parties regarding the subject matter herein. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first shown above: AGREED: DATED: June 2011 JONES HALL, A PROFESSIONAL LAW CORPORATION j s r By. William H. Madison Its: President DATED: June -7 , 2011 TOWN OF TIBURON By: Jeffre 1146Y-1 Its: May -8- SETTLEMENT AGREEMENT ATTES DATED: June ; 2011 APPROVED AS TO FORM: DATED: June 2011 TOWN OF TIBURON (Seal) By: Ann R. Danforth Town Attorney DATED: June 2011 MOSCONE EMBLIDGE & SATER LLP By: G. Scott blidge Attorney or T ox~ n of Tiburon d f DATED: June , 2011 SIDEMAN & BANCROFT LLP JQ~ By. A Gilda R. Turitz Attorneys for Jones Hall, A Professional Law Corporation -9-