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HomeMy WebLinkAboutAgr 2010-03-18 (Mostyn and Mulberg)SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS This SETTLEMENT AGREEMENT ( "AGREEMENT ") is entered into by and between the Town of Tiburon, a municipal corporation, and Tiburon Town Council (collectively "Town "), Kevin Mostyn ( "Plaintiff') and Frank Mulberg and Brett Mulberg (collectively, "Plaintiff's Counsel). The term "Plaintiff' includes, in addition to the above- named individual plaintiff, his heirs, assigns or any subsequent purchasers of the property that is the subject of this Agreement. This Agreement is not intended to nor shall it have any effect on any members of the "putative class" in Mostyn v. Town of Tiburon et al., San Francisco Superior Court Case No. CGC -07- 469829 ( "Mostyn ") Recitals A. On May 4, 2007, Plaintiff s Counsel filed an administrative claim on behalf of Kevin Mostyn ( "Plaintiff') and others, seeking damages arising from the alleged misconduct of the Town, and its bond counsel, Jones Hall, in the formation of assessment districts, including those formed in 2005 and 2006 and commonly known as Del Mar Valley Utility Undergrounding Assessment District ( "Original District") and the Del Mar Valley Utility Undergrounding Supplemental Assessment District ( "Supplemental District"). The Town denied this claim and Plaintiff's Counsel filed an action in San Francisco Superior Court against the Town and Jones Hall on behalf of Mr. Mostyn both individually and on behalf of other property owners in the Tiburon Undergrounding Districts, which case was identified as Mostyn v. Town of Tiburon ( "Mostyn "). B. The parties now wish to settle Mostyn to the fullest extent within their power and to terminate the litigation, without any party admitting wrongdoing or liability; in order to mitigate continuing litigation costs and fees and to avoid incurring fature fees and costs. Agreement 1. Within 10 days of the date of this Agreement, Plaintiff and Town will jointly request the San Francisco Superior Court to dismiss Mostyn as to all claims and all defendants without prejudice. A copy of the request for dismissal is set forth as Exhibit A, which is attached hereto and incorporated herein by reference. The parties will cooperate in good faith to obtain court approval of this dismissal. 2. Town will indemnify, defend and hold Plaintiff and Plaintiff's Counsel harmless from any action by Jones Hall, a Professional Law Corporation, or any of its HALitigation Misc \Mulberg \Settlement \Settlement Ag Mostyn 3 -18 -10 final.doc 1 partners or attorneys (collectively "Jones Hall ") for malicious prosecution . and/or abuse of process that arise (a) prior to the dismissal of said case as set forth in paragraph 1 of this Agreement; and (b) from or related to the Mostyn case. Town's obligations under this section shall be limited to attorneys' fees and legal costs incurred in defense of covered claims and any damages that may be awarded against Plaintiff and/or Plaintiffs Counsel as a result thereof, up to a total expenditure for all claims of $200,000. A. In the event that Jones Hall files an action against Plaintiff and/or .Plaintiffs Counsel for malicious prosecution and/or abuse of process arising from the Mostyn case, Town will cooperate with Plaintiff and/or Plaintiffs' Counsel in their defense by waiving its attorney - client privilege and attorney work product privilege with respect to records of communications with Jones Hall relating to the Original and Supplemental District and other issues in and arising from the Mostyn case, that would otherwise be protected from disclosure by the attorney- client privilege and/or attorney work product privilege. B. Furthermore, if any action is commenced by Jones Hall against Plaintiff and/or Plaintiffs Counsel, the Town shall cooperate with Plaintiff and/or Plaintiff's Counsel as set forth above should they decide to file a cross - complaint or cross -claim against Jones Hall on their own behalf and/or on behalf of any parcel owner in any Tiburon undergrounding district from 2001 to the date of this Agreement. 3. The parties shall each bear their own attorney fees and costs with respect to the Mostyn case. Plaintiffs Counsel represents and warrants that all such fees and costs were borne by Plaintiff and Plaintiff's Counsel. 4. Other than set forth in this Agreement, the signing parties to this Agreement on their own behalf, and not on behalf of any "putative class" members, hereto release and waive all claims, past, present and future, that they may have against each other relating to the subject matter of Mostyn. For purposes of this paragraph, "Town" shall include, without limitation, the Town's officials, employees, attorneys (excluding Jones Hall), representatives and consultants; and "Plaintiff' shall include, without limitation, Plaintiff s Counsel. A. The waiver and release in this paragraph does not extend to any claims that the Town might have against its representatives and consultants or any other person or entity other than Plaintiff and Plaintiffs Counsel (signing parties to this Agreement). B. The Town retained third party consultants to assist in the formation of the Original and Supplemental Districts as well as other undergrounding districts. In the event that the Town does not seek to recover damages HALitigation Misc \Mulberg \Settlement \Settlement Ag Mostyn 3 -18 -10 final.doc 2 against such third party consultants by November 15, 2010, Plaintiff and/or Plaintiff's Counsel may initiate a taxpayer's action against said consultants to recover said damages. i. The date of November 15, 2010 is based on the assumption that the relevant limitations period for actions against Jones Hall may expire on December 31, 2010. In the event that the Town obtains an agreement with Jones Hall tolling the limitations period, the November 15, 2010 deadline shall be extended by a period equal to the tolling period. ii. The terms "taxpayer's action" shall be liberally construed to mean an action on behalf of the Town for the benefit of its citizens. 5. Except as necessary to enforce this Agreement, or as expressly permitted herein, Plaintiff's Counsel represents, covenants and agrees not to sue, represent, counsel with or be involved directly or indirectly in any claim, action or litigation against the Town or the Town's representatives and consultants relating to the subject matter of the Mostyn case. 6. This Agreement is intended to be a final settlement and accord and satisfaction of the respective rights and liabilities of the signing parties to this Agreement on their own behalf, and not on behalf of any "putative class" member, hereto with respect to the claims, past present or future, raised by Plaintiff in the above referred to Mostyn case, including, without limitation, any and all claims, debts, liabilities, demands, obligations, responsibilities, rights, damages, losses, costs, expenses, * attorneys' fees, compensation, actions and causes of action of every nature, character and description, which either had held, now holds or may in the future hold, whether known or unknown, foreseen or unforeseen; patent or latent, inchoate or contingent, which were raised or could have been raised prior to the execution of this Agreement relating to the subject Mostyn case. 7. California Civil Code Section 1542 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 by him must have materially affected his settlement with the debtor." Notwithstanding the provisions of the above - quoted Civil Code Section, the parties hereto intend to and do hereby waive all claims known or unknown, past, existing presently or which may arise in the future against one another out of the matters settled herein, including, without limitation, any claims that were raised or could have been HALitigation Misc \Mulberg \Settlement \Settlement Ag Mostyn 3 -18 -10 final.doc 3 raised prior to the execution of this Agreement relating to the formation of the Original District or the Supplemental District. 8. This Agreement shall be binding only on the signing parties. 9. For purposes of this Agreement, "Town" shall mean the Town of Tiburon and its officials and employees. Except as expressly provided herein, "Town" shall not include the Town's consultants and agents. 10. This Agreement may be signed in counterparts and that such counterpart copies shall be deemed to be part of this Settlement Agreement in its original form. Facsimile transmitted signatures are acceptable to consummate this Agreement, although the parties agree that facsimile transmission will be followed up with hard copy signatures. Any amendment to this Agreement shall be in writing and executed by the parties hereto before it shall become effective. The parties warrant that this written Agreement is the entire agreement of the parties and that there are no other agreements between them with regard to the settlement of the above -named case. 11. The parties warrant to each other that each of them has full power, authority and capacity to execute and implement this Agreement. The parties represent to each other that the effect of their Agreement has been fully explained to each of them by their respective counsel and shall be binding on them. 12. The laws of the State of California shall govern this Agreement. IT IS SO AGREED. By Date: March° 2010 Margaret A. turran, Town Manager Town of Tiburon PLAINTIFF Date: March. 2010 Kevin Mostyn APPROVED AS TO FORM: HALitigation Misc \Mulberg \Settlement \Settlement Ag Mostyn 3 -18 -10 final.doc 4 LAW OFFICES OF FRANK I. MULBERG Im Frank I. Mulberg, Esq. For himself and as Plaintiffs' Counsel VIM Brett Mulberg, Esq. For himself and as Plaintiffs' Counsel Date: March 2010 Date: March 2010 By 1155�� Date: March %eP 2010 Ann R. Danforth, Esq. Town Attorney, Town of Tiburon HALitigation Misc \Mulberg \Settlement \Settlement Ag Mostyn 3 -18 -10 final.doc 5 raised prior to the execution of this Agreement relating to the formation of the Original District or the Supplemental District. 8. This Agreement shall be binding only on the signing parties. 9. For purposes of this Agreement, "Town" shall mean the Town of Tiburon and its officials and employees. Except as expressly provided herein, "Town" shall not include the Town's consultants and agents. 10. This Agreement may be signed in counterparts and that such counterpart copies shall be deemed to be part of this Settlement Agreement in its original form. Facsimile transmitted signatures are acceptable to consummate this Agreement, although the parties agree that facsimile transmission will be followed up with hard copy signatures. Any amendment to this Agreement shall be in writing and executed by the parties hereto before it shall become effective. The parties warrant that this written Agreement is the entire agreement of the parties and that there are no other agreements between them with regard to the settlement of the above -named case. 11. The parties warrant to each other that each of them has full power, authority and capacity to execute and implement this Agreement. The parties represent to each other that the effect of their Agreement has been fully explained to each of them by their respective counsel and shall be binding on them. 12. The laws of the State of California shall govern this Agreement. IT IS SO AGREED. TOWN By Margaret A. Curran, Town Manager Town of Tiburon WR 1► ' MN) , � r ,k" Aiostyn' APPROVED AS TO FORM: Date: March 2010 Date: March /2010 CADocuments and Settings\Franklocal Settings \Temporary Internet 4 Files \Content.l E5 \31UES284 \Settlement %20Ag %20Mostyn %203- 18- 10 %20final[1 ].doc LAW OFFICES OF FRANK I. MULBERG BY Date: March l 2010 Frank I. Mul erg, Esq. For himself and as Plaintiffs' Counse BY Ea Brett Mulberg, Esq. For himself and as Plaintiffs' Counsel By Ann R Danforth, Esq. Town Attorney, Town of Tiburon Date: March 1? 2010 Date: March 2010 CADocuments and Settings\Frank\l-ocal Settings \Temporary Intemet 5 Files \Content.IE5 \31UES284\ Settlement% 20Ag° /o20Mostyn °/x203- 18- 10 %20final[1 ].doc CIV -110 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Barnumber, and address): Frank I. Mulberg (SBN 072038) FOR COURT USE ONLY Brett D. Mulberg (SBN 240I07) 655 Redwood Highway, Ste. 300 Mill Valley, CA 94941 TELEPHONE NO.: (415) 388-0605 FAX NO. (Optional): (415) 388-6929 E -MAIL ADDRESS (Optional): ATTORNEY FOR (Name): Plaintiff Kevin MOstyn SUPERIOR COURT OF CALIFORNIA, COUNTY OF Sari Francisco STREET ADDRESS: 400 McAllister Street MAILING ADDRESS: CITY AND ZIP CODE: San Francisco, 94102 BRANCH NAME: PLAINTIFF /PETITIONER: Kevin MOstyn DEFENDANT /RESPONDENT: Town of Tiburon, et al. REQUEST FOR DISMISSAL 0 Personal Injury, Property Damage, or Wrongful Death CASE NUMBER: CGC -07- 469829 = Motor Vehicle 0 Other �] Family Law = Eminent Domain 0✓ Other (specify) : Breach of Cont. / Unfair Bus. Prac. / Prof. Neg - A conformed copy will not be returned by the clerk unless a method of return is provided with the document. - 1. TO THE CLERK: Please dismiss this action as follows: a. (1) With prejudice (2) 77 Without prejudice b. (1) Complaint (2) 0 Petition (3) 0 Cross - complaint filed by (name): on (date): (4) 0 Cross - complaint filed by (name): on (date): (5) 0✓ Entire action of all parties and all causes of action (6) Other (specify):* 2. (Complete in all cases except family law cases.) Court fees and costs were waived for a party in this case. (This information may be obtained from the checked, the declaration on the back of this form must be completed), Date: Frank I. Mulberg, Esq. (TYPE OR PRINT NAME OF F71 ATTORNEY = PARTY WITHOUT ATTORNEY) *If dismissal requested is of specified parties only of specked causes of action only, or of specified cross-complaints only so state and identify the parties, causes of action, or cross -complaints to be dismissed. box is Attorney or party without attorney for: 0 Plaintiff /Petitioner Defendant/Respondent 0 Cross — Complainant 3. TO THE CLERK: Consent to the above dismissal is hereby given. ** Date: (TYPE OR PRINT NAME OF = ATTORNEY = PARTY WITHOUT ATTORNEY) (SIGNATURE) • If a cross - complaint —or Response (Family Law) seeking affirmative Attorney or party without attorney for: relief— is on file, the attorney for cross - complainant (respondent) must Plaintiff /Petitioner 0 Defend ant/Respond Ent sign this consent if required by Code of Civil Procedure section 581 (i) or 0). Cross — Complainant (To be completed by clerk) 4. 0 Dismissal entered as requested on (date): 5 0 Dismissal entered on (date): as to only (name): 6, 0 Dismissal not entered as requested for the following reasons (specify): 7, a. 0 Attorney or party without attorney notified on (date): b. Attorney or party without attomey not notified. Filing party failed to provide 0 a copy to be conformed = means to return conformed copy Date: Clerk, by Deputy Page 1 of 2 Form Adopted for Mandatory Use Code of Civil Procedure, § 581 at seq., Judicial Council of California REQUEST FOR DISMISSAL Gov. Code, § 68637(c); Cal. Rules of Court, rule 3.1390 CIV -110 (Rev. July 1, 2009) American LegalNet, Inc. www'courtinfo.ca.gov E—Ay c www.FonnsWorldlow.com CIV -110 PLAINTIFF /PETITIONER: Kevin Mostyn CASE NUMBER: DEFENDANT /RESPONDENT: Town of Tiburon, et al. CGC -07- 469829 Declaration Concerning Waived Court Fees The court has a statutory lien for waived fees and costs on any recovery of $10,000 or more in value by settlement, compromise, arbitration award, mediation settlement, or other recovery. The court's lien must be paid before the court will dismiss the case. 1. The court waived fees and costs in this action for (name): 2. The person in item 1 (check one): a. is not recovering anything of value by this action. b. 0 is recovering less than $10,000 in value by this action. c. 0 is recovering $10,000 or more in value by this action. (If item 2c is checked, item 3 must be completed.) 3.0 All court fees and costs that were waived in this action have been paid to the court (check one): = Yes 0 No I declare under penalty of perjury under the laws of the State of California that the information above is true and correct. Date: (TYPE OR PRINT NAME OF= ATTORNEY = PARTY MAKING DECLARATION) (SIGNATURE) CIV -110 [Rev. July 1, zoos) REQUEST FOR DISMISSAL rage c v< <