HomeMy WebLinkAboutAgr 2013-05-21 (Koffman)MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement ( "Settlement Agreement" or "this
Agreement ") is made and entered into between, on the one hand, Koffman Family Living Trust,
Bryan Koffman and Yana Leventon Koffman (collectively, the "Plaintiffs "), and, on the other
hand, the Town of Tiburon ( "Town" or "Defendant "). The Plaintiffs and Town are sometimes
collectively referred to herein as the "Parties" or individually as a "Party."
RECITALS
A. Plaintiffs are the owner of certain real property located at 10 Tara View Drive,
Tiburon, California, designated as APN 058 -20 -130, described and depicted in Exhibit "A"
attached hereto ( "Property ").
B. The dispute which is the subject of this Agreement arises out of soil movement
and resulting landslides (hereinafter referred to as the "Landslide ") which occurred on the
Property during the winter of 2011. The Landslide allegedly resulted in damage to properties
owned by Plaintiffs; the Town; and Johan Swildens, Christine Swildens and the Swildens Family
Trust (the Swildens being the owners of neighboring property commonly referred to as 120
Roundhill Road, Tiburon, California).
C. The soil from the Landslide allegedly encroached onto the Town's right -of -way
( Roundhill Road located toward the bottom of the Landslide). The Town took precautionary
measures to contain the erosion and prevent damage to its right -of -way. The Town served the
Plaintiffs with a Notice of Violation and Demand to Abate Tiburon Municipal Code Violations
and Public Nuisance at the Property.
D. On or about September 22, 2011, Plaintiffs filed an Amended Complaint for
Damages ( "Complaint ") in Marin County Superior Court (Case No. CIV1104590), entitled
Koffman Family Living Trust, Bryan Koffman, Yana Leventon- Koffman v. Town of Tiburon,
Johan Swildens, Christine Swildens, James Birchenough, Faramez Petri, Louise Petri, and
DOES 1 through 100, seeking damages associated with the Landslide.
E. On or about November 10, 2011, the Town filed a Cross - Complaint for Equitable
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Indemnity, Comparative Contribution, Negligence, Nuisance, Unjust Enrichment and
Declaratory Relief against Plaintiffs.
F. During the pendency of the litigation (Marin County Superior Court Case No.
CIV 1104590), Plaintiffs agreed to winterize the Property, but not on their own. Plaintiffs asked
the Town and others to contribute financially to the winterization. The Town, disputing any
responsibility for the Landslide, but desiring to have the Property stabilized, entered into an
agreement with the Plaintiffs to assist with the cost of the winterization. The Town reserved its
right to recover its contribution, together with all other costs (e.g., deferred permit fees and
encroachment fees, etc.), against the Plaintiffs in this litigation. The winterization was
successfully completed.
G. The winterization of the Property was a temporary repair. Plaintiffs seek, and the
Town desires, a permanent repair of the Landslide on the Property. Plaintiffs have obtained an
estimate for the permanent repair of the Landslide on the Property from Engineered Soils
Repairs, Inc. ( "ESR "), dated November 8, 2012. ESR's proposal for permanent repair of
Landslide on the Property totaled $392,059.00. Said permanent repairs have not commenced as
of the date of this Settlement Agreement.
H. Plaintiffs and the Town desire to settle and compromise any and all of their
respective claims against one another arising out of the above - stated matters, and to forego
litigation and forever release all presently existing claims and disputes against each other of
whatever kind or nature arising from the Landslide. This settlement is a compromise of litigation
and is not to be construed as an admission of liability on the part of any Party, each of whom
expressly denies any such liability.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the Parties hereto agree as follows:
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1. Consideration for Settlement:
(a) Settlement of Plaintiffs' Complaint against Town - The Town shall pay Plaintiffs
the sum total of TWELVE THOUSAND DOLLARS ($12,000.00). Further, in order to expedite
the permanent repair of the Landslide on the Property, the Town also agrees to waive any and all
Town fees associated with the permanent repair of the Landslide, up to and not to exceed
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$18,000.00 in value. The parties acknowledge that the $18,000.00 waiver cap on Town permit
fees is calculated based on the Town's 2013 permit fee schedule adopted for 2013 and the
$392,059.00 estimate for Landslide repair prepared by ESR for Plaintiffs' legal counsel on or
about November 8, 2012. The Town's 2013 fee schedule imposes fees based on the value of
project construction and Plaintiffs recognize that the permit fees for the permanent Landslide
repair will be a function of the valuation of the construction of the Landslide repair. In the event
that the permanent Landslide repair exceeds the estimated cost provided by ESR, the permit fees
may exceed $18,000.00 and the Town shall require payment by Plaintiffs of said overage in
accordance with the Town's usual practice.
By accepting the $12,000.00 payment and waiver of Town permit fees, Plaintiffs agree to
only use such monies to pay for actual expenses incurred for temporary and /or permanent repairs
of the Landslide on the Property. In further consideration for this payment of $12,000.00,
Plaintiffs are required to submit plans for a permanent repair of the Landslide on the Property
within 6 months of either judgment being entered in Marin County Superior Court Case No.
CIV1104590 or final global settlement of said litigation.
The Town is directed to pay the consideration herein by draft or check payable to the
order of Plaintiffs and to the order of their attorney of record, and are further directed to deliver
any such draft or check to said attorney within 30 days of either the delivery of this fully
executed agreement or the entry of an Order from the Marin County Superior Court determining
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that the settlement recited herein is a good faith settlement within the meaning of California
Code of Civil Procedure section 877.6, whichever is later.
(b) Settlement of Town's Cross - Complaint against Plaintiffs — Plaintiffs shall pay the Town
the sum total of THIRTY -FIVE- THOUSAND DOLLARS ($35,000.00). Plaintiffs are directed
to pay the consideration herein by draft or check payable to the order of the Town of Tiburon and
are further directed to deliver any such draft or check to the Town's attorney within 30 days of
either the delivery of this fully executed agreement or the entry of an Order from the Marin
County Superior Court determining that the settlement recited herein is a good faith settlement
within the meaning of California Code of Civil Procedure section 877.6, whichever is later.
2. Effective Date. The "Effective Date" of this Settlement Agreement shall be the latest date
upon which it is executed by a Party hereto.
3. Dismissal. As soon as practical after payment of all sums due under paragraph 1 above,
Plaintiffs shall file a Dismissal with Prejudice of their Complaint against the Town and the Town
shall file a Dismissal with Prejudice of its Cross - Complaint against Plaintiffs in Marin County
Superior Court Case No. CIV1104590, with the Parties to bear their own costs of suit and
attorneys' fees.
4. Releases by Plaintiffs. Plaintiffs, on behalf of themselves, their heirs, executors,
administrators, trustors, trustees, successors, affiliates, engineers, contractors, subrogors,
subrogees, insurers, lessees, grantees, assignors, assignees, agents, employees, attorneys,
consultants, experts, general partners, limited partners, and representatives, and all others, hereby
forever release and discharge the Town of Tiburon and any of its subsidiaries, its Town Council,
employees, agents, insurers, attorneys and all others from any and all known and /or existing
actions, causes of action, obligations, costs, damages, losses, claims, liabilities and demands
(including claims arising out of contract) arising out of or in any way connected with or resulting
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from the Landslide on the Property, and all of those matters set forth in Marin County Superior
Court Case No. CIV1104590, as a result of which personal injury, property damage and other
loss and damage were alleged to have been sustained by Plaintiffs.
5. Release by Town. The Town hereby forever releases and discharges Plaintiffs, their heirs,
executors, administrators, trustors, trustees, successors, affiliates, engineers, contractors,
subrogors, subrogees, insurers, lessees, grantees, assignors, assignees, agents, employees,
attorneys, consultants, experts, general partners, limited partners, and representatives from any
and all known and /or existing actions, causes of action, obligations, costs, damages, losses,
claims, liabilities and demands (including claims arising out of contract) arising out of or in any
way connected with or resulting from the Landslide on the Property, and all of those matters set
forth in Marin County Superior Court Case No. CIV1104590, as a result of which the Town
suffered property damage and other losses and damages.
6. Waiver of Section 1542. The Parties acknowledge and understand that this is a full and
final Release of any and all claims arising out of the matters set forth above and agree as a further
consideration and inducement for this compromise that this Release extends to all claims of
every nature and kind whatsoever, known or unknown, suspected or unsuspected, regarding the
matters set forth above, and all rights under Section 1542 of the Civil Code of the State of
California are hereby expressly relinquished and waived by the undersigned. Said section reads
as follows:
SECTION 1542, GENERAL RELEASE.
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.
7. Unknown Facts. The Parties acknowledge and agree that they may hereafter discover
facts different from or in addition to those they now know or believe to be true in respect to the
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claims, losses, liabilities, obligations, suits, debts, liens, contracts, agreements, promises,
demands and damages released by this Settlement Agreement, and hereby agree that the releases
contained herein shall be and remain in effect in all respects as a complete, general release as to
the matters released, notwithstanding any such different or additional facts.
8. No Admission. It is understood and agreed by the Parties that this settlement is the
compromise of a disputed claim and that the payment of monies by the Parties is not to be
construed as an admission of liability and that any liability is expressly denied.
9. Interpretation of Agreement. This Settlement Agreement, and each of its provisions, has
been reached as the result of negotiations between the Parties and their respective attorneys.
Each of the Parties expressly acknowledges and agrees that this Settlement Agreement shall not
be deemed to have been prepared by, or drafted by, any particular Party or Parties hereto, and that
the normal rule of construction, to the effect that any ambiguities are to be resolved against the
drafting party or parties, shall not be employed in the interpretation of this Settlement
Agreement.
10. Governing Law. This Settlement Agreement shall be construed in accordance with, and
governed by, the laws of the State of California.
11. Binding Agreement. This Settlement Agreement shall be binding on, and shall inure to
the benefit of, each of the Parties and their respective past, present and future predecessors,
successors, subsidiaries, affiliates, officers, directors, employees, attorneys, insurers, agents,
representatives and assigns.
12. Counterparts. This Settlement Agreement may be executed simultaneously or in any
number of counterparts, each of which shall be deemed an original, equally admissible in
evidence against any Party who has signed it, all of which together shall constitute one and the
same agreement. Signatures delivered by facsimile shall be deemed original signatures.
13. Integrated Agreement. This writing is an integrated agreement and represents the entire
understanding of the Parties relative to the subject matter described herein. No prior or
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contemporaneous agreements shall be enforceable if they materially alter, vary, or add to the
terms of this Settlement Agreement. This Settlement Agreement may not be modified except by a
writing executed by all Parties or their counsel. Each of the Parties agrees that no representation
or promise not expressly contained in this Settlement Agreement has been made and further
promises that they are not entering into this Agreement on the basis of any promise,
representation, express or implied, not otherwise contained herein.
14. Voluntary Consent. This Settlement Agreement is executed voluntarily and without any
duress or undue influence on the part or behalf of the Parties hereto. The Parties acknowledge
that:
(1) They have read this Settlement Agreement;
(2) They have been represented in the preparation, negotiation, and execution of this
Settlement Agreement by legal counsel of their own choice;
(3) They understand the terms and consequences of this Settlement Agreement and of
the Agreements it contains; and
(4) They are fully aware of the legal and binding effect of this Settlement Agreement.
15. Warranty of Authority. The persons executing this Settlement Agreement represent and
warrant that they have full authority to sign this Settlement Agreement on behalf of the Parties
for which are acting and that said Parties will thereby be fully bound by the terms of this
Agreement.
16. Severability. Each provision of this Settlement Agreement shall be interpreted in such a
manner as to be valid, legal and enforceable. A determination that any provision of this
Settlement Agreement is for any reason invalid, illegal, or unenforceable shall not affect the
validity of this Agreement and any other provisions herein, and this Agreement shall be
interpreted and construed as if such invalid, illegal, or unenforceable provisions were not
contained herein.
17. Indemnification. Plaintiffs hereby expressly agree to defend, protect, indemnify and save
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harmless the Town from any loss, claim, expense, demand or cause of action in any way arising
from any medical claim, medical lien, attorney lien, subrogation claim, or any other medical or
legal expense in any way related to the incident which is the subject matter of this release, as
described above.
18. , Good Faith Settlement. All Parties further expressly agree that this Settlement Agreement
is conditioned upon the determination by the Marin County Superior Court that the settlement
recited herein is a good faith settlement within the meaning of California Code of Civil
Procedure section 877.6. The Town shall file either an Application or Motion with the Marin
County Superior Court pursuant to California Code of Civil Procedure section 877.6. Plaintiffs
agree to cooperate and offer any assistance necessary to support said Application or Motion.
SIGNATURES
Plaintiffs
Date: .5-12-1 125 T4�U94J2-e-
BR OK(fFFMAN, Trustee of KOFFMAN
F NG TRUST, Plaintiff
Date: Jr ( /-3
RY KOFFMAN, Plaintiff
STATE OF CALIFORNIA )
ss.
County of W4
On this day of p2% , before me, (here insert name and title of the
officer)) , personally appeared BRYAN KOFFMAN personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
KELLY A. NINES
WITNESS my hand and official seal. a" :r. Commission * 1979653
Z • A Notary Public . California
Marin County >
M Comm. Expires Ma 26, 2016
r r�
Signature ` (Seal)
[Notary ignature]
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Date: 12-1 /13
YANATIEVWOV- KOFFMAN, Plaintiff
The foregoing Settlement Agreement was executed by
under the direction and advice of:
Law Offices of Alan M. Mayer, Inc.
Date: C�Lkc-�-'
Alan Mayer, Esq.
Town of Tiburon
Date: S-/-)--5 113
Margaret Cur n-, Town Manager for TOWN OF
TIBURON, Defendant
Approved as to form:
Date: S _;''�
Ann Danforth, Town Attorney for TOWN OF
TIBURON, Defendant
STATE OF CALIFORNIA )
ss.
County of WM-/'\ ) )
On this day of l J ,before me, (here insert name and title of the
officer) ll AD-) , personally appeared YANA LEVENTON KOFFMAN
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
KELLY A. HINES
Comm1331on #E 1979653
WITNESS my hand and official seal. Notary Public - California
Morin County ..
MY Comm. Expires Mo 26, 2016
Signature (Seal)
[Noly Signature]
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