SETTLEMENT AGREEMENT FOR TAXPAYER AND CLASS ACTIONS

SETTLEMENT AGREEMENT FOR TAXPAYER AND CLASS ACTIONS WHEREAS plaintiffs Silicon Valley Taxpayers Association, Inc., a California non-profit corporation (SVTA), Howard Jarvis Taxpayers Association (HJTA), a California non-profit corporation, and individual Santa Clara County property owners and taxpayers Eric and Vivian Bracher, Theodore Felton, Mary Thompson, B.F. Henschke, and Richard Orlando filed an action in the Santa Clara County Superior Court on January 11, 2002, against defendant Santa Clara County Open Space Authority (OSA) seeking declaratory, injunctive, mandamus, and other relief establishing the invalidity of OSA’s 2001 special assessment on real estate known as the District Two Assessment; and WHEREAS that first action was later consolidated with a second action filed by the same plaintiffs seeking the same relief with respect to a renewal of the District Two Assessment (Case Nos. 1-02-CV804474 and 1-03-CV000705 – collectively referred to as the “Taxpayer’s Action”); and WHEREAS plaintiffs filed a Second Amended Complaint on June 24, 2003, in Case No. 1-02-CV804474 of the Taxpayer’s Action, containing the following two causes of action: (1) the First Cause of Action for Writ of Mandate and Declaratory and Injunctive Relief alleging that OSA conducted an Illegal Ballot Proceeding; and (2) the Second Cause of Action for Declaratory and Injunctive Relief Against OSA’s Imposition of the District Two Assessment; and 1 Exhibit A WHEREAS OSA answered plaintiffs’ Second Amended Complaint, and plaintiffs and OSA cross-moved for summary judgment and summary adjudication as to plaintiffs’ two causes of action; and WHEREAS the Santa Clara County Superior Court (Judge William J. Elfving) denied plaintiffs’ motions, granted summary adjudication to OSA on both causes of action, and entered summary judgment in OSA’s favor in the Taxpayer’s Action on November 5, 2003; and WHEREAS, on plaintiffs’ appeal from the summary judgment in OSA’s favor, the Sixth District Court of Appeal affirmed the summary judgment in OSA’s favor in the Taxpayer’s Action on July 6, 2005, in a 2-1 decision with Acting Presiding Justice Eugene Premo and Pro Tempore Associate Justice Bryan Walsh concurring and Associate Justice Patricia Bamattre-Manoukian dissenting; and WHEREAS the California Supreme Court granted plaintiffs’ Petition for Review of the Sixth District Court of Appeal’s decision on October 12, 2005; and WHEREAS the California Supreme Court unanimously reversed the Sixth District Court of Appeal’s decision in the Taxpayer’s Action on July 14, 2008, expressly declaring that OSA’s 2001 assessment violated the special benefit and proportionality requirements in article XIII D of the California Constitution and was invalid for the reasons stated in Silicon Valley Taxpayers Assn. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431; and 2 WHEREAS in response to the Supreme Court’s decision OSA ceased imposing and collecting any further installments of the District Two Assessment; and WHEREAS the Supreme Court remanded the Taxpayer’s Action to the Sixth District Court of Appeal for further proceedings consistent with the Supreme Court’s Opinion declaring the 2001 assessment invalid; and WHEREAS the Sixth District Court of Appeal reversed the summary judgment in OSA’s favor on September 24, 2008, and remanded the Taxpayer’s Action to the Superior Court with instructions to grant summary adjudication in plaintiffs’ favor on the Second Cause of Action for Declaratory and Injunctive Relief Against OSA’s Imposition of the District Two Assessment; and WHEREAS the Court of Appeal’s remittitur issued to the Superior Court on November 25, 2008; and WHEREAS plaintiffs filed a post-remittitur challenge to Judge William J. Elfving in the Taxpayer’s Action under Code of Civil Procedure section 170.6; and WHEREAS, while the Taxpayer’s Action was pending before the Supreme Court, plaintiff Mary Thompson filed with OSA an administrative claim for refund of OSA’s District Two Assessment, a copy of which is attached to this Agreement as Exhibit A, and certain other Santa Clara County real estate owners and taxpayers also filed administrative claims for refund of OSA’s assessment; and 3 WHEREAS, following OSA’s denial of the taxpayer refund claims on the grounds that both courts that had considered the legality of the District Two Assessment as of that time had upheld it, Mary Thompson filed a Class Action Complaint for Tax Refund against OSA entitled Thompson v. Santa Clara County Open Space Authority, Case No. 1-07-CV-094261 (the “Class Action”) in the Santa Clara County Superior Court on September 14, 2007; and WHEREAS, upon stipulation of the parties the Superior Court stayed all proceedings in the Class Action pending resolution of the Taxpayer’s Action by the Supreme Court; and WHEREAS, on December 29, 2008, following remittitur of the Taxpayer’s Action by the Court of Appeal, the Superior Court consolidated the Taxpayer’s and Class Actions and stayed further proceedings pending a possible mediated settlement; and WHEREAS the OSA held all District Two funds collected and did not spend those funds; and WHEREAS the parties filed detailed mediation briefs and participated in mediation sessions on November 11, 2008, February 27, 2009, and May 13, 2009, before Justice John Trotter (Ret.) and Catherine Yanni, Esq., of the Judicial Arbitration and Mediation Service (JAMS); and WHEREAS following mediation the parties agreed to settle the Taxpayer’s Action and the Class Action on the terms and conditions set forth in this Agreement; and 4 WHEREAS, OSA has imposed since 1994 a separate property assessment known as the District One Assessment, which is annually renewable and was upheld by the Sixth District Court of Appeal in Coleman v. Santa Clara County Open Space Authority, Case No. H014730, with the California and U.S. Supreme Courts denying review; WHEREAS the District One Assessment pre-dated the adoption of Proposition 218 (Cal. Const. art. XIIID) and was approved by the voters; NOW THEREFORE this Settlement Agreement is entered into by and between OSA and plaintiffs for themselves and as taxpayer representatives, and by Class Representative Mary Thompson on behalf of the Class defined below (the “Class”). Subject to Court approval and implementation as provided by law and described below, the Parties agree that, in consideration of the promises and covenants set forth in this Agreement, the Taxpayer’s and Class Actions shall be compromised and settled on the terms and conditions set forth below. 1. Definitions 1.1 “Actions” shall mean the consolidated Taxpayer’s and Class Action lawsuits identified as Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority, Santa Clara County Superior Court, Case No. 1-02-CV804474 consolidated with Case Nos. 1-03-CV000705, and Thompson v. Santa Clara County Open Space Authority, Case No. 1-07CV-094261. 5 1.2 “Agreement” or “Settlement Agreement” means this Settlement Agreement for Taxpayer’s and Class Actions, including all Exhibits attached hereto. 1.3 “Assessment Common Fund” means the fund created and maintained by OSA containing OSA’s collections of the District Two Assessment and described in the October 16, 2008 report of OSA’s accountant attached as Exhibit B. 1.4 “Attorney Fee and Expense Order” means the order setting the attorney fees and litigation expenses of plaintiffs’ counsel, whether embodied in the Final Order and Judgment or in a separate post-judgment order. 1.5 “Claims Administrator” or “Administrator” means an independent private firm specially retained, with Court approval and under Court supervision, to process Refund and Prior Claims and to resolve disputes under this Agreement. 1.6 “Claims Period” means 90 days from the date the Settlement Hearing Notice and Refund Claim is mailed. 1.7 1.8 “Class” means all Class Members. “Class Action” means the lawsuit filed in the Santa Clara County Superior Court entitled Thompson v. Santa Clara County Open Space Authority, Case No. 1-07-CV-094261. 1.9 “Class Counsel” means Attorney Tony J. Tanke. 6 1.10 “Class Member” means any person who paid the District Two Assessment between tax years 2002-03 to 2007-08, who does not exclude himself or herself from the Class. 1.11 1.12 “Class Representative” means Mary Thompson. “Court” means the Santa Clara County Superior Court unless otherwise stated. 1.13 “Date of this Agreement” means the date upon which this Settlement Agreement is finally approved by the Court. 1.14 “Deficiency Notice” means a notice of one or more material deficiencies in a Refund or Prior Claim as described in Paragraph 3.7 of this Agreement. 1.15 “District One Assessment” means the first special assessment levied by OSA beginning in 1994 and renewable annually thereafter. 1.16 “District Two Assessment” means the second special assessment initially levied by OSA in 2001, with collection beginning in fiscal year 2002-2003, and renewed annually through fiscal year 2007-2008. 1.17 “Fairness Hearing” means the hearing to determine the good faith, fairness, adequacy, and reasonableness of this Settlement Agreement and related matters as provided by law. 1.18 “Final Order and Judgment” means the final decision to be entered by the Court: (1) approving this Agreement as in good faith, fair, adequate, 7 reasonable, and in the best interests of the Class; and (2) making such other findings and determinations as the Court deems necessary and appropriate to effectuate the terms of this Agreement or to comply with applicable law, including without limitation an Attorney Fee and Expense Order. 1.19 “OSA” means the Santa Clara County Open Space Authority, a special district organized under California law as set forth in California Public Resources Code sections 35100 et seq. 1.20 1.21 “Parties” mean Plaintiffs and OSA. “Plaintiffs” includes: (1) SVTA; (2) HJTA; (3) the individual plaintiffs in the Taxpayer’s Action; (4) plaintiff Mary Thompson as Class Representative in the Class Action; and (5) each Class Member. 1.22 “Preliminary Approval” means the Court’s order giving preliminary approval to this Settlement Agreement as a class action settlement and directing the mailing of the Settlement Hearing Notice and Refund Claims to Class Members. 1.23 “Prior Claim” means a claim for refund of OSA’s District Two Assessment submitted by a Class Member before the execution of this Agreement by all parties. 1.24 “Refund” means a refund made to a taxpayer of OSA’s District Two Assessment. 8 1.25 “Refund Claim” means a claim for refund of OSA’s District Two Assessment submitted by a Class Member after the date of execution of the Agreement by all parties. 1.26 “Settlement Agreement” or “Agreement” means this Settlement Agreement, all terms and conditions thereof, and all exhibits attached hereto. 1.27 “Settlement Date” means the date on which the Final Order and Judgment is entered. 1.28 “Settlement Hearing Notice and Refund Claim” or “Notice” means the notice in the form attached as Exhibit C. 1.29 “Taxpayer’s Action” means the consolidated lawsuits filed in the Santa Clara County Superior Court entitled Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority, Case Nos. 1-02-CV904474 and 1-03-CV000705. 2. Submission of Settlement Agreement For Preliminary Approval 2.1 Upon execution of this Agreement, the Parties shall apply to the Court by written motion for Preliminary Approval of the settlement described in this Agreement, including an order directing notice to the Class and setting the date of the Fairness Hearing. 9 3. Payment of District Two Assessment Refunds and Interest 3.1 Settlement Class. For purposes of settlement, a Class comprised of the following Class Members shall be certified by the Court: “Any person who paid OSA’s District Two Assessment between tax years 2002-2003 and 2007- 2008.” 3.2 Class Representative and Counsel. The Class is adequately represented by Class Representative Mary Thompson and Class Counsel Tony J. Tanke. 3.3 Submission of Class Member Claims. Each Class Member seeking a refund, or the Class Member’s guardian, administrator, executor or authorized legal representative, must submit a Refund Claim or a Prior Claim. A Refund Claim Form is included as part of the Settlement Hearing Notice and Refund Claim Form, attached as Exhibit C. Class Members or other interested persons may obtain information about the Settlement Agreement or request Refund Claim forms as provided in Paragraph 6. All claims not postmarked before the end of the Claims Period shall be disallowed. 3.4 Payment of District Two Assessment Refunds on Refund Claims. OSA shall cause to be paid from the Assessment Common Fund to each Class Member filing a valid Refund Claim the full amount of the District Two Assessment paid by the Class Member during the entire six-fiscal-year period of the assessment. No interest shall be payable on a Refund Claim. No attorney fees, expenses, or other sums shall be deducted from the amount of a valid Refund Claim, except insofar as the Assessment Common Fund proves inadequate to satisfy all refund claims in addition to the attorneys fee and litigation 10 expense award, class administration costs, and the distribution to OSA of the retained interest, in which case each refund claim shall be prorated accordingly. OSA will waive any alleged statute of limitations defense if a Class Member timely files a Refund Claim. As to any Refund Claim, the Administrator shall pay the requested refund or mail a Deficiency Notice within 15 days of receipt of a timely Refund Claim or the settlement becoming final in accordance with paragraph 7.3, whichever is later. 3.5 Payment of Assessment Refunds and Interest on Prior Claims. OSA shall cause to be paid from the Assessment Common Fund to each taxpayer filing a valid Prior Claim the full amount of the District Two Assessment paid by the taxpayer for the entire six-fiscal-year period of the assessment, plus interest on the Prior Claim at the rate of three percent (3%) from the date the claim was filed to the date of the entry of the Final Order and Judgment, except insofar as the Assessment Common Fund proves inadequate to satisfy all refund claims in addition to the attorneys fee and litigation expense award, class administration costs, and the distribution to OSA of the retained interest, in which case each refund claim shall be prorated accordingly. As to any Prior Claim, the Administrator shall either pay the requested refund or mail a Deficiency Notice within 15 days of the date the settlement becomes final in accordance with paragraph 7.3 of this Agreement. 11 3.6 Release. Whether or not they choose to file Refund or Prior Claims, all Class Members shall be bound by the release provisions of Paragraphs 11.1, 11.2 and 11.3 of this Agreement. 3.7 Deficiency Notice. A Refund or Prior Claim is valid if it is signed and verified, timely filed, and contains sufficient information to permit the Claims Administrator to confirm from OSA’s records or other government records that the claimant has paid all or some part of the District Two Assessment and to ascertain with substantial confidence the amounts paid. If a Refund Claim or Prior Claim is timely filed but not otherwise valid, the Administrator shall make a reasonable attempt to communicate with the claimant in an effort to correct any deficiency. In the event a material deficiency cannot be so corrected, the Administrator shall then mail to the claimant, with a copy sent via facsimile or email to Class Counsel, a notice identifying with particularity all material deficiencies in the Refund Claim or Prior Claim (“the Deficiency Notice”). Any contested Deficiency Notice shall be resolved in accordance with the Dispute Resolution Process described in Paragraph 8. Any curable material deficiency may be corrected at any time until 15 days after expiration of the Claims Period. 3.8 Manner of Refund Payments. The Administrator shall pay a Refund or Prior Claim by mailing the Class Member a check for the full amount of refund plus 12 interest due for Prior Claims, if any, on the date specified for payment in Paragraph 3.4 or 3.5. 3.9 Contested Refund Amounts. To the extent the deficiency in any Prior or Refund Claim pertains solely to the amount claimed, the Administrator shall pay a full refund in the amount the Administrator determines to be due based on the tax roll or other appropriate government records. Any dispute as to the payment amount shall be resolved in accordance with the Dispute Resolution Process described in Paragraph 8. 4. Use of Assessment Common Fund Proceeds 4.1 The Assessment Common Fund shall be expended as follows: (a) Payment of all attorney fees and litigation expenses owed to plaintiffs’ attorneys as provided in this Agreement and approved by order of the Court; and (b) Paragraph 10. (c) Payment of any amounts incurred for all notices to the Class and the The accrued interest shall be paid over to OSA in accordance with parties, newspaper publications, the Claims Administrator, the costs of the mediation giving rise to this Agreement, and other expenses as provided by this Agreement and ordered by the Court; (d) Payment of all valid Refund or Prior Claims, plus interest due for Prior Claims, if any, as provided in this Agreement and ordered by the Court; 13 (e) The balance of the Assessment Common Fund, after all payments called for by this Agreement and ordered by the Court, shall belong exclusively to OSA to be used in its discretion for OSA purposes. 5. Claims Administrator 5.1 An independent third-party Claims Administrator, The Garden City Group, Inc., has been selected by the parties and will be submitted to the Court for approval and appointment. The Administrator shall operate under the direction and supervision of the Court and shall be identified as a Court officer in all communications and transactions with taxpayers or members of the public. OSA shall pay the fees and expenses of the Administrator and any other expenses related to administration of the claims process out of the Assessment Common Fund. 6. Notice of Fairness Hearing on Proposed Class Action Agreement 6.1 Mailing of Settlement Hearing Notice and Refund Claim. Upon Preliminary Approval by the Court, the Administrator shall mail to all Class Members whose addresses are available a Settlement Hearing Notice and Refund Claim in the form attached hereto as Exhibit C. With regard to former property owners, the Administrator shall update available addresses using the National Change of Address (NCOA) database maintained by the United States Postal Service, and shall conduct advanced address database searches as necessary, not to exceed $0.65 per successful search. 14 6.2 Published Notice. The Quarter-Page Advertisement attached hereto as Exhibit D shall be published in each of the following newspapers twice − once following the mailing of notice and again 30 days before the end of the Claims Period. A. B. C. D. E. F. G. H. I. 6.3 Almaden Resident Cambrian Resident Campbell Reporter Cupertino Courier Rose Garden Resident San Jose Mercury News Saratoga News Willow Glen Resident West San Jose Resident Posting of Settlement Hearing Notice and Refund Claim. OSA shall post the Notice in the form attached hereto as Exhibit C on OSA’s official website and at OSA’s business office where OSA posts the agendas for meetings of its Board of Directors. The Notice shall be posted immediately following the date of the Preliminary Approval and shall remain posted until 15 days after the Claims Period has expired. 6.4 Establishment of a Toll-Free Information Line. The Administrator shall establish a toll-free telephone number that interested persons may call to obtain information about this settlement, including how Refund Claims may be obtained and 15 filed. The number shall be operational from the date of mailing of the Notice and shall remain operational until 15 days after the Claims Period has expired. This information may be automated. 6.5 Establishment of Informational Website. The Administrator shall establish a website that interested persons may visit to obtain information about this settlement, including how Refund Claims may be obtained and filed. The website shall be operational from the date of mailing of the Notice and shall remain operational until 15 days after the Claims Period has expired. The website will explain electronic and hardcopy claims filing methods and will allow downloading of the Settlement Hearing Notice and Refund Claim Form and online submission of claims. The web address shall appear in the quarter-page advertisements provided for in paragraph 6.2. 6.6 Availability of Notice and Claim Form. OSA shall keep at OSA’s office until 15 days after the Claims Period has expired copies of the Notice. OSA shall make these copies available, free of charge, to any member of the public requesting them. Upon receipt of a request for a Refund Claim form, OSA shall inform the requestor that Refund Claim forms may be obtained by calling the Administrator toll-free. The Administrator shall mail to each requesting person, within two business days of receipt of an oral or written request, a copy of the Settlement Hearing Notice and Refund Claim. 6.7 Payment of Notice Costs. The costs of all notice provided by this Paragraph 6 will be paid for from the Assessment Common Fund. 16 7. Fairness Hearing 7.1 Conduct of Fairness Hearing. At the Fairness Hearing, the Court shall: (1) consider the written submissions of the parties, any objections to the Settlement or to any attorney fees or litigation expenses, any communications with the Court concerning material matters, any oral statements made during the course of the hearing, and any other appropriate matters; and (2) shall perform all necessary and appropriate judicial functions. 7.2 Final Order and Judgment. Following the Fairness Hearing, the Court shall approve or disapprove the Settlement Agreement and shall perform all other necessary and appropriate judicial functions. If the Agreement is approved, the Court shall enter: (1) a Final Order and Judgment; and (2) an Attorney Fee and Expense Order as provided by this Settlement Agreement. 7.3 Implementation of Final Order and Judgment. The Final Order and Judgment shall only be implemented according to its terms if either: (1) in the event no timely and legally viable appeal is taken from the Final Order and Judgment, upon the expiration of 60 days following the mailing of notice of entry of the Final Order and Judgment; or (2) in the event an appeal is taken from the Final Order and Judgment, upon issuance of the remittitur from the appellate court in any appeal upholding the Final Order and Judgment. 8. Dispute Resolution Process 17 8.1 Any dispute regarding validity or amount of a Prior or Refund Claim or any other dispute concerning individual claims or refunds shall be fully and finally resolved by the Claims Administrator whose decision will be binding on all Parties. 8.2 The Parties’ attorneys shall be entitled to obtain any information possessed, controlled, used, or maintained by the Claims Administrator. 9. Payment of Attorney Fees and Litigation Expenses 9.1 Assessment Common Fund. The Assessment Common Fund is a common fund from which attorney fees and expenses may be paid. 9.2 Attorney Fee-and-Expense Payments. Following mediation, the parties have agreed that: Class Counsel Tony J. Tanke shall, subject to independent Court review and approval as required by law, be paid a fee of $7.4 million plus expenses not to exceed $75,000. These fees and expenses are for all services rendered, and costs incurred, through implementation of the Final Order and Judgment, any representation during class administration, and for all fees and costs claimed by plaintiffs in the Taxpayer’s Action and the Class Action. Tony J. Tanke shall be responsible for satisfying any claim for attorney’s fees and litigation costs by Attorneys Tim Bittle and Jack Bohan and for obtaining necessary releases of any further fee and expense claims by Attorneys Bittle and Bohan. All such fees and expenses shall be paid from the Assessment Common Fund. All parties request that the Court award such amounts as being fair and reasonable under the circumstances presented. All parties affirm that the 18 taxpayer relief portions of this Agreement, including all terms relating to refunds and the merits of the Taxpayer’s and Class Action lawsuits, were negotiated and resolved in mediation prior to, and independently of, the provisions for attorney fees and expenses. 9.3 Timing of Fee-and-Expense Payments. OSA will cause to be paid all attorney fees and expenses awarded from the Assessment Common Fund by check delivered within fifteen (15) days following the date the Settlement Agreement becomes final in accordance with paragraph 7.3 of this Agreement. If a separate Attorney Fee and Expense Order is entered, the OSA will cause to be paid all attorney’s fees and expenses awarded from the Assessment Common Fund by check delivered within fifteen (15) days following the later of: (1) the date the Final Order and Judgment becomes final pursuant to paragraph 7.3 of this Agreement, (2) the date that the time to appeal that separate Order expires, if no appeal is filed, or (3) the date upon which the remittitur issues in any appeal upholding the separate Attorney Fee and Expense Order. 10. Disposition of Interest Accrued on Assessed Amounts 10.1 Interest Retained by OSA. The interest accrued on the principal amounts collected pursuant to the District Two Assessment shall not be subject to any refund claims, attorney’s fees and expense claims, or Class administration expenses, but shall be retained by OSA for use in its discretion. 19 10.2 Timing of Interest Payment. OSA shall be entitled to transfer the interest retained into the OSA’s general fund at the same time as payment is made of attorney’s fees and litigation expenses under Paragraph 9.3. 11. Taxpayer’s Release and Discharge of Liability 11.1 District Two Release. All plaintiffs, including (1) SVTA, (2) HJTA, (3) the individual plaintiffs in the Taxpayer’s Action, (4) plaintiff Mary Thompson on behalf or herself as an individual and as Class Representative in the Class Action, and (5) all Class Members not excluding themselves from the Class fully release and discharge OSA from any and all liability for legal, equitable, statutory, or other relief of any kind, including, but not limited to, writs of mandate, injunctions, tax refunds, damages, sums of money in any form, forfeitures, penalties, or any other adverse consequences of any kind whatsoever in connection with the assessment, levy, or collection of the District Two Assessment. As a result of this release, each plaintiff in the Taxpayer’s Action and each Class Member not excluding himself or herself from the Class shall be barred from initiating, asserting, or prosecuting against OSA any claims which are released herein. 11.2 District One Release. All plaintiffs, including (1) SVTA, (2) HJTA, (3) the individual plaintiffs in the Taxpayer’s Action, (4) plaintiff Mary Thompson on behalf or herself as an individual and as Class Representative in the Class Action, and (5) all Class Members not excluding themselves from the Class hereby fully release and discharge OSA from any and all liability for legal, equitable, statutory, or other relief of any kind, 20 including, but not limited to, writs of mandate, injunctions, tax refunds, damages, sums of money in any form, forfeitures, penalties, or any other adverse consequences of any kind whatsoever in connection with the assessment, levy, or collection of the District One Assessment, including ongoing assessment, levy or collection, insofar as such claim is that the District One Assessment is unlawful and/or illegally assessed or levied, or noncompliant with Proposition 218. As a result of this release, each plaintiff in the Taxpayer’s Action and each Class Member not excluding himself or herself from the Class shall be barred from initiating, asserting, or prosecuting against OSA any claims which are released by operation of this Agreement, and from filing any administrative or judicial request for refund based upon the asserted invalidity of the District One Assessment. This release shall not preclude any such Class Member from seeking a refund on the grounds that in any given year the District One Assessment was: (1) (2) paid more than once; assessed in an incorrect amount based upon an error in the Classification of the property to be assessed; (3) paid on an assessment of improvements when the improvements did not exist on the lien date; or (4) incorrectly calculated; 21 Provided, however, that this Agreement shall not be construed to waive any defenses OSA may have to such a claim, including, but not limited to, defenses based upon the applicable statute of limitations. 11.3 Civil Code section 1542. In connection with these releases all plaintiffs, including (1) SVTA, (2) HJTA, (3) the individual plaintiffs in the Taxpayer’s Action, (4) plaintiff Mary Thompson on behalf or herself as an individual and as Class Representative in the Class Action, and (5) each Class Member not excluding himself or herself from the Class waives the provisions of 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. 12. Class Members’ Right of Exclusion/Inclusion 12.1 A Class Member may exclude himself or herself from the Class during the exclusion period. To exercise the exclusion right set forth in this paragraph, the Class Member must complete, sign, and mail to the Administrator a letter requesting exclusion. The letter must be signed by the Class Member and must legibly show the Class Member’s name and addresses. Such request must be postmarked prior to the end of the 22 exclusion period, which shall be 30 days from the date of mailing the Settlement Hearing Notice and Refund Claim. 12.2 Except for those putative Class Members who have properly excluded themselves, all Class Members will be deemed Class Members for all purposes under this Agreement. Any putative Class Member who elects to exclude himself or herself from the Class pursuant to this paragraph shall not be entitled to relief under this Agreement, but shall be limited to the rights and remedies provided by law, if any. 12.3 At any time before the Claims Period has expired, former Class Members who previously excluded themselves from the Class may withdraw their exclusion requests, subject to the OSA’s approval or the Court’s permission if OSA disapproves, and only if they agree to be bound by all of the terms of this Agreement. Any such former Class Members who resumes Class Membership and become subject to this settlement must submit their Refund Claims within 90 days of the mailing of the Settlement Hearing Notice and Refund Claim under section 6.1 of this agreement. A former Class Member who resumes Class Membership may have less than 90 days to submit a Claim Form. No former Class Member who excludes himself or herself from the Class may resume Class Membership after the period for submitting claims has expired. 13. Settlement Agreement to Control 13.1 In the event of any conflict between this Settlement Agreement and any 23 notice, summary, or other document, including without limitation any exhibit hereto, the provisions of this Agreement shall control. Captions are provided herein for convenience only and they form no part of this Agreement and are not to serve as a basis for interpretation or construction of this Agreement, nor as evidence of the intention of the Parties hereto. 14. Condition Precedent to Effectiveness of This Agreement 14.1 Court. 15. Other Provisions 15.1 The Court shall reserve jurisdiction to interpret and enforce the provisions This Agreement shall become effective only upon its final approval by the of this Settlement Agreement and of the Final Order and Judgment. 15.2 This Agreement may be executed in counterparts by one or more signators and shall be deemed fully executed and effective when the last designated signator has signed his, her, or its counterpart. 15.3 This Agreement is a complete, final, and fully integrated statement of the parties’ agreements, covenants, accords, and understandings as to all matters. No actual or alleged statement, representation, agreement, covenant, understanding or communication of any kind between or among the parties shall be deemed part of this Agreement or binding upon any party unless it is expressly set forth herein. 24 15.4 No amendment, modification, or change of any kind to this Agreement shall be effective unless it is set forth in writing, signed by the parties, and approved by the Court. All plaintiffs hereby appoint Class Counsel as their agent and representative to sign any amendment, modification, or change to this Agreement. 15.5 The parties will request the mediators to submit a report to the Court on the mediation process and the mediators' views of the fairness of the settlement and the reasonableness of the fee and expense award. Dated: May 2n , 2009 SILICON VALLEY TAXPAYERS ASSOCIATION, INC. By: Douglas McNea Its: President Taxpayer's Action Co-Plaintiff Dated: May , 2009 HOWARD JARVIS TAXPAYERS ASSOCIATION By: Timothy Bittle Its: Director of Litigation Taxpayer's Action Co-Plaintiff Dated: May 21 , 2009 Mary Aompson Individually and on behalf of Class Members in the Class Action Dated: May , 2009 Eric Bracher Taxpayer's Action Co-Plaintiff 25 15.4 No amendment. modification, or change of any kind to this Agreement shall be effective unless it is set forth in writing, signed by the parties, and approved by the Court. All plaintiffs hereby appoint Class Counsel as their agent and representative to sign any amendment. modification, or change to this Agreement. 15.5 The parties will request the mediators to submit a report to the Court on the mediation process and the mediators' views of the fairness of the settlement and the reasonableness of the fee and expense award. Dated: May , 2009 SILICON VALLEY TAXPAYERS ASSOCIATION, INC. By: Douglas McNea Its: President Taxpayer's Action Co-Plaintiff Dated: May 21 , 2009 HOWARD JARVIS TAXPAYERS ASSOCIATION By: Timothy Bittle Its: Director of Litigation Taxpayer's Action Co-Plaintiff Dated: May , 2009 Mary Thompson Individually and on behalf of Class Members in the Class Action Dated: May , 2009 Eric Bracher Taxpayer's Action Co-Plaintiff 25 15.4 No amendment, modification, or change of any kind to this Agreement shall be effective unless it is set forth in writing, signed by the parties, and approved by the Court. All plaintiffs hereby appoint Class Counsel as their agent and representative to sign any amendment, modification, or change to this Agreement. 15.5 The parties will request the mediators to submit a report to the Court on the mediation process and the mediators' views of the fairness of the settlement and the reasonableness of the fee and expense award. Dated: May , 2009 SILICON VALLEY TAXPAYERS ASSOCIATION, INC. By: Douglas McNea Its: President Taxpayer's Action Co-Plaintiff Dated: May , 2009 HOWARD JARVIS TAXPAYERS ASSOCIATION By: Timothy Bittle Its: Director of Litigation Taxpayer's Action Co-Plaintiff Dated: May , 2009 Mary Thompson Individually and on behalf of Class Members in the Class Action Dated: May 21 , 2009 Eric Bracher Taxpayer's Action Co-Plaintiff 25 Dated: May 26 1 , 2009 f-eeieft-fr& . Vivian Brdcher Taxpayer's Action Co-Plaintiff Dated: May , 2009 Theodore Felton Taxpayer's Action Co-Plaintiff Dated: May , 2009 B.F. Henschke Taxpayer's Action Co-Plaintiff Dated: May , 2009 Richard Orlando Taxpayer's Action Co-Plaintiff Dated: May , 2009 SANTA CLARA COUNTY OPEN SPACE AUTHORITY By: Its: Board President Defendant 26 Dated: May , 2009 Vivian Bracher Taxpayer's Action Co-Plaintiff Dated: May 29 , 2009 Theodore Felton Taxpayer's Action Co-Plaintiff ViLog utC)--k ,i, Dated: May , 2009 B.F. Henschke Taxpayer's Action Co-Plaintiff Dated: May , 2009 Richard Orlando Taxpayer's Action Co-Plaintiff Dated: May , 2009 SANTA CLARA COUNTY OPEN SPACE AUTHORITY By: Its: Board President Defendant 26 Dated: May , 2009 Vivian Bracher Taxpayer's Action Co-Plaintiff Dated: May , 2009 Theodore Felton Taxpayer's Action Co-Plaintiff Dated: May , 2009 Taxpayer's Action Co-Plaintiff Dated: May , 2009 Richard Orlando Taxpayer's Action Co-Plaintiff Dated: May , 2009 SANTA CLARA COUNTY OPEN SPACE AUTHORITY By: Its: Board President Defendant 26 Dated: May , 2009 Vivian Bracher Taxpayer's Action Co-Plaintiff Dated: May , 2009 Theodore Felton Taxpayer's Action Co-Plaintiff Dated: May , 2009 B.F. Henschke Taxpayer's A 'on Co-Plaintiff Dated: May 2--61 , 2009 Richard Orlando Taxpayer's Action Co-Plaintiff Dated: May , 2009 SANTA CLARA COUNTY OPEN SPACE AUTHORITY By: Its: Board President Defendant 26 APPROVED AS TO FORM AND ACCEPTED AS TO TERMS REGARDING ATTORNEY FEES AND EXPENSES: Dated: May l , 2009 LAW Or TONY J. T NKE TONY J. TA s ICE Plaintiffs' Counsel in Actions Dated: May 2 1' , 2009 TIMOTHY BITTLE HJTA Director of Litigation and Plaintiffs' Counsel in Taxpayer's Action APPROVED AS TO FORM: Dated: May , 2009 NIELSEN, MERKSAMER, PARRINELLO, MUELLER & NAYLOR. LLP JAMES R. PARRINELLO Attorneys for Santa Clara County Open Space Authority Dated: May , 2009 WITTWER & PARKIN LLP WILLIAM P. PARKIN Attorneys for Santa Clara County Open Space Authority 27