City of Piedmont



DATE: July 19, 2004

FROM: Ann Swift, City Clerk

SUBJECT: Approval of an Agreement with John Brown and La Randa Marr for Reimbursement of Improper Assessments Related to the Dudley Blair Underground Assessment District



By motion, approve the attached agreement which will reimburse Mr. Brown and Ms. Marr for over-payments related to the Dudley Blair Underground Assessment District and relieve them of future over-assessments.



Due to an error in the assessor's parcel maps, the assessment for Mr. Brown and Ms. Marr was incorrectly calculated for the Dudley Blair Underground Assessment District. The city administrator, city attorney and finance director have worked to reach a settlement with the property owners which will relieve them of this improper assessment and refund monies which they have already paid. The reimbursement will be funded through district proceeds, not the General Fund of the city.

It is important that council approve the attached agreement at this meeting since the calculation of refund and other details are tied to the date of July 19, 2004.



WHEREAS, the City of Piedmont, a California Municipal Corporation (hereafter "City"), and John Brown and La Randa Marr (hereinafter "Residents") have engaged in numerous discussions over a period of time relating to the assessment made against the property of the Residents at 104 Dudley Avenue, Piedmont, California (hereafter "Property"); and

WHEREAS, City has checked carefully on the computations made to determine such assessment, and has confirmed that the assessment against such property was incorrectly calculated relating to the Dudley, Blair, Mountain, Pacific, Hagar and Vicinity Underground District ("Dudley Blair District"); and

WHEREAS, it is the desire of the parties to mutually resolve any possible disputes that they may have, including specifically any overassessment against the Property relating to the Dudley Blair District that may have been caused in any way directly or indirectly by City; and to fully compromise and settle any and all claims of any nature whatsoever, known or unknown, suspected or unsuspected, and any damage whatsoever arising out of or in any way connected with the City and the Residents, including but not limited to the Property.

NOW, THEREFORE, and in consideration of the payment of $1,083.34 by City to the Residents, receipt of which sum is hereby acknowledged, and the agreement of the City to pay down the exact amount of the remaining overassessment due on the outstanding bonds so that no further overassessment shall be due, the parties hereto do hereby mutually release, acquit, and forever discharge each other, and as applicable, their respective predecessors, successors, subsidiaries, agents, servants, officers, City Council members, employees, heirs, assigns and attorneys, of each of them, of and from any and all claims, demands, damages, actions, and causes of action, whether in contract or in tort or on any other basis, arising out of or in any way connected with the Property and damages thereto, and any other matters which happened, existed or occurred between or relating to the parties hereto prior to the date of this release.

IT IS UNDERSTOOD AND AGREED that this settlement is in compromise of disputed claims and that the payment being made, and the promise of future payments are not to be construed as and is not an admission of liability by any of the parties herein released, and that said parties deny liability, but intend to avoid further controversy and buy their peace.

IT IS FURTHER UNDERSTOOD AND AGREED that this Release shall apply to all unknown and unanticipated injuries and damages arising from the aforementioned dispute, as well as those now disclosed, and all parties hereto hereby waive the provisions of Section 1542 of the Civil Code of the State of California which reads as follows:

"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor which, if known by him, must have materially affected his settlement with the debtor."

ALL PARTIES HERETO FURTHER DECLARE AND WARRANT that no person, firm, corporation, governmental agency or any other person or organization whatsoever has asserted a lien or been provided with an assignment of any type in connection with any claims which are the subject of this Release, and each party hereto specifically agrees to DEFEND, INDEMNIFY, AND FOREVER HOLD HARMLESS the parties being released from any and all claims which may be made against said parties by any purported lien claimants or assignees as to this settlement.

RESIDENTS HEREBY AUTHORIZE AND DIRECT that payment of the initial settlement consideration be made by a check for $1,083.34, which check shall show as payee "John Brown and La Randa Marr".

THE PARTIES HERETO AGREE that this Agreement and the payment made herein shall run with the land and bind all future owners of the Property, and either party hereto may record this Agreement at any time.

THE PARTIES HERETO FURTHER AGREE that this Receipt, Release and Agreement represents the entire agreement of the parties relative to the subject matter hereof and supersedes all prior and/or contemporaneous oral and/or written understandings, statements, representations and/or promises; any change or amendment to this agreement shall be in writing.

CITY and RESIDENTS DO HEREBY AFFIRM AND ACKNOWLEDGE that they have read this Receipt, Release and Agreement, that they fully understand and appreciate the

foregoing words and terms and their significance, and that they each have had their own separate legal counsel review and approve this Agreement.

DATED: ________________, 2004.