HomeMy WebLinkAbout3222_001.tif THIRD MODIFICATION OF SETTLEMENT AGREEMENT
THIS THIRD MODIFICATION OF SETTLEMENT AGREEMENT ("third
modification") is made and entered into as of December 7, 1990, by and between Taldan
Investment Company ("Taldan") and the Town of Tiburon ("Tiburon").
WITNESS THAT:
WHEREAS, Tiburon and Taldan have previously entered into a Settlement
Agreement dated March 28, 1990, as modified by the Modification dated August 10, 1990,
and the Second Modification dated October 23, 1990 (as so modified, the "Settlement
Agreement") providing for the separate and mutual release of and from various suits and
claims arising out of or in connection with the processing and/or denial of Taldan's
application for precise plan and vesting tentative map approval of certain real property
located at Blackfield Drive and Villa Los Altos in Tiburon, all upon the terms and
conditions set forth in the Settlement Agreement; and
WHEREAS, pursuant to the settlement agreement, Taldan has submitted for
approval a amendment to its precise plan/tentative map application (the "amended
application"); and
WHEREAS,because of unanticipated delays in processing the amended application
in a manner consistent with the California Environmental Quality Act and the state planning
and zoning law, Tiburon and Taldan desire to extend the time by which Tiburon shall
endeavor to fully process and take final action on the amended application.
NOW, THEREFORE, in consideration of the mutual promises undertaken as
contained herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby ratify and confirm the foregoing recitals
and covenants and agree as follows:
1. The term"210 days"which now appears at the penultimate line on Page 3 (Section
2) of the Settlement Agreement shall be deleted and the term "335 days" shall be
substituted. It is the intention of the parties that Tiburon shall endeavor to fully process and
take final action on the amended application within 335 days of the date of the initial
Settlement Agreement.
2. Except as expressly modified by this Modification, the Settlement Agreement is
in all respects ratified, confirmed and approved.
IN WITNESS WHEREOF, the parties have entered into this Modification as of the
date first written above.
TOWN OF TIBURON
By:..
TALDAN INVESTMENT COMPANY
By:_ � '
Its:
-2-
SECOND MODIFICATION OF SETTLEMENT AGREEMENT
THIS SECOND MODIFICATION OF SETTLEMENT AGREEMENT (this
"Modification") is made and entered into as of this 23rd day of
October 1990 by and between Taldan Investment Company
("Taldan") and the Town of Tiburon ("Tiburon") .
WITNESS THAT:
WHEREAS, Taldan and, Tiburon have heretofore entered into
the certain settlement agreement dated as of March 28, 1990 as
modified by the Modification thereto dated October 23 , 1990
(as so modified, the "Settlement Agreement") providing for the
separate and mutual release of and from various suits and
claims arising out of or in connection with the processing
and/or denial of Taldan's application for precise plan and
vesting tentative map approval of certain real property located
at Blackfield Drive and Villa Los Altos, Tiburon, California,
all upon the terms and conditions set forth in the Settlement
Agreement; and
WHEREAS, pursuant to the Settlement Agreement, Taldan has
heretofore submitted for approval an amendment to its precise
plan/tentative map application (the "amended application") ; and
WHEREAS, because of unanticipated delays in processing
such amended application in a manner consistent with the
California Environmental Quality Act and the state planning and
zoning law, Taldan and Tiburon desire to extend the time by
which Tiburon shall endeavor to fully process and take final
action on such Amended Application.
NOW, THEREFORE, in consideration of the mutual promises
undertaken as contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby ratify and confirm the
foregoing recitals and covenant and agree as follows:
1. The term 11210 days" which now appears at the
pen-ultimate line on page 3 (section 2) of the Settlement
Agreement shall be and the same is hereby deleted and the term
11255 days" shall be and the same is hereby substituted
therefor; it being the intention hereunder that Tiburon shall
endeavor to fully process and take final action on the Amended
Application with 255 days of the date of the Settlement
Agreement .
2 . Except as expressly modified by this Modification,
the Settlement Agreement is in all respects ratified, confirmed
and approved.
IN WITNESS WHEREOF, the parties have entered into this
Modification as of the date first above written.
TOWN OF TIBURON
By: / C 4P
Its•
TALDAN INVESTMENT COMPANY
By:
Its: � �
MODIFICATION OF SETTLEMENT AGREEMENT
THIS MODIFICATION OF SETTLEMENT AGREEMENT (this
"Modification") is made and entered into as of this 10th day of
August 1990 by and between Taldan Investment Company ("Taldan")
and the Town of Tiburon ("Tiburon") .
WITNESS THAT:
WHEREAS, Taldan and Tiburon have heretofore entered into
the certain settlement agreement dated as of March 28, 1990
(the "Settlement Agreement") providing for the separate and
mutual release of and from various suits and claims arising out
of or in connection with the processing and/or denial of
Taldan's application for precise plan and vesting tentative map
approval of certain real property located at Blackfield Drive
and Villa Los Altos, Tiburon, California, all upon the terms
and conditions set forth in the Settlement Agreement; and
WHEREAS, pursuant to the Settlement Agreement, Taldan has
heretofore submitted for approval an amendment to its precise
plan/tentative map application (the "amended application") ; and
WHEREAS, because of unanticipated delays in processing
such amended application in a manner consistent with the
California Environmental Quality Act and the state planning and
zoning law, Taldan and Tiburon desire to extend the time by
which Tiburon shall endeavor to fully process and take final
action on such Amended Application.
NOW, THEREFORE, in consideration of the mutual promises
undertaken as contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby ratify and confirm the
foregoing recitals and covenant and agree as follows:
1. The term 11150 days" which appears at the pen ultimate
line on page 3 (section 2) of the Settlement Agreement shall be
and the same is hereby deleted and the term 11210 days" shall be
and the same is hereby substituted therefor; it being the
intention hereunder that Tiburon shall endeavor to fully
process and take final action on the Amended Application with
210 days of the date of the Settlement Agreement .
2 . Except as expressly modified by this Modification,
the Settlement Agreement is in all respects ratified, confirmed
and approved.
IN WITNESS WHEREOF, the parties have entered into this
Modification as of the date first above written.
TOWN OF TIBURON
By:�
Its.
TALDAN INVESTMENT COMPANY
w
By: �
Its: � -�
W '
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SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT (this "Agreement") is made
and entered into as of this 28th day of March, 1990, by and
between TALDAN INVESTMENT COMPANY ("Taldan") and the TOWN OF
TIBURON ("Tiburon") .
FACTUAL RECITALS
This Agreement is entered into with reference to the
following facts:
A. Taldan is the legal owner and developer of an
approximate 15.7 acre parcel of real property located at
Blackfield Drive and Via Los Altos, Tiburon, California (the
"site") . Taldan proposes to develop the site as a single
family subdivision known as "Vista Tiburon. " The site, as the
same is subdivided and proposed to be developed is hereinafter
sometimes referred to as the "Project. "
B. On October 2 , 1985, pursuant to its Ordinance
306 N.S. Tiburon approved Taldan's application for master plan
approval of the subdivision of the site into 34 single-family
lots.
C. Following such approval of Taldan's master
plan application, Taldan began preparing its application for
precise plan and vesting tentative map approval (the "precise
plan/tentative map application") for the site. However, on
October 161 1985, Tiburon's Town Council adopted an "Emergency
Building Ban - Motion No. 307, " prohibiting further processing
of any permits or approvals for development or building in
Tiburon, including a ban on the processing of the precise
plan/tentative map application. Thereafter on April 8, 1986 an
initiative, known as "Measure C, " was passed by the voters of
Tiburon imposing an additional two-year moratorium on any new
construction or processing of subdivision maps with respect to
real property in Tiburon.
D. Taldan and other interested parties filed a
lawsuit (the "Moratorium Lawsuit") in the Superior Court of the
State of California, Marin County, Case Number 129216,
challenging the validity and enforceability of Measure C. On
September 23 , 1987 the Superior Court entered final judgement
on that portion of the case that had been severed from the
remaining aspects of the case concerning the validity of the
measure under Government Code 65858 . In that judgement, the
court ruled that Measure C did not extend a pre-existing
moratorium and entered judgment against Tiburon.
Page 1
r
E. Tiburon has heretofore filed an appeal to the
judgment entered in the Moratorium Lawsuit in the Court of
Appeal of the State of California, First Appellate District,
Case No. A040027 (the "Moratorium Appeal") which Moratorium
Appeal has been argued before the Court of Appeal on March 1,
1990. The Court has asked that additional matters be briefed
within the next ten days, and following submission of these
briefs a decision is anticipated within ninety (90) days.
Certain aspects of the original lawsuit were severed at the
time of the Superior Court's 1987 decision. Upon the
conclusion of the current appeal, further litigation concerning
the severed aspects of the case is possible and, if the Court
of Appeal upholds the lower court decision, further litigation
is likely.
F. Taldan has heretofore filed its precise
plan/tentative map for a 34 lot subdivision, which precise
plan/tentative map application was deemed completed by Tiburon
on September 16, 1988 . On March 30, 1989, Tiburon denied
Taldan's precise plan/tentative map application.
G. Taldan has heretofore filed a petition for
writ of mandate in the Superior Courttof the .State of
California, Marin County, Case No. 142730 (the "Precise Plan
Lawsuit") , seeking to set aside Tiburon's denial of Taldan's
precise plan/tentative map application and to direct approval
of such application. On December 18,1989 Tiburon obtained
judgment in the Precise Plan Lawsuit upholding its denial of
Taldan's precise plan/tentative map application.
H. On January 29, 1990, Taldan filed a notice of
its intention to appeal the judgment entered in the Precise
Plan Lawsuit in the Court of Appeal of the State of California,
First Appellate District (the "Precise Plan Appeal") .
I. Tiburon and Taldan desire to enter into this
Agreement in order to resolve their differences and settle and
mutually release each other from all claims made in the
Moratorium Lawsuit, the Moratorium Appeal, the Precise Plan
Lawsuit, the Precise Plan Appeal and any suits or claims which
have accrued as of the date hereof and arise out of or in
connection with the processing and/or denial of Taldan's
precise plan/tentative map application. It is anticipated that
during the period the amended project which is the subject of
this agreement is under consideration and review by Tiburon,
further developments will occur with respect to the ongoing
litigation and appeals discussed above. It is agreed by both
parties that no such further development will be considered a
changed or unanticipated condition so as to relieve either
party from performing the obligations set forth in this
agreement, and that notwithstanding any such developments the
parties shall terminate all litigation in the manner set forth
Page 2
6
FS._.
in this agreement upon the satisfaction of the obligations set
forth herein. Furthermore, in the event any decision is
reached or judgement entered in any of the above litigation "y
which benefits either party herein in any way; the party
benefitted agrees to waive any and all such benefit during the
period that the amended application is processed in accordance
with section 2 below and in the event that the application is
approved consistent with this agreement, then any such benefit
shall be waived for all time in accordance with the provisions
of section 10, below.
NOW THEREFORE '
pursuant to and in accordance with the _
desires of the parties and in consideration of the mutual
promises and undertakings contained in this Agreement, the
parties hereby ratify and confirm the foregoing recitals and
covenant and agree as follows:
1. Adoption of Development Agreement. This Agreement
is to be read in conjunction with and supplemented by the F ;
Development Agreement (as hereinafter defined) .
2 . Undertakings by Tiburon. Tiburon hereby
acknowledges and agrees that (i) on February 6, 1990, Taldan
submitted for approval an amendment to its precise
plan/tentative map application (the "amended application") ,
which amended application provides for the 22-lot subdivision
generally described in the site plan attached hereto as Exhibit
A and made a part hereof, and (ii) that as of , 1990
the amended application is complete except for updated .civil
engineering, geotechnical and landscaping data, which data will
be provided by Taldan to Tiburon not later than April 1, 199o. 1,
Pursuant to the authorization of the Town Council of Tiburon,
Tiburon hereby acknowledges and agrees that it shall promptly
(and in any event within the time period mandated by State law
after such application is determined to be complete) process
such application in a manner consistent with the California
Environmental Quality Act and the state Planning and zoning Law
and upon the successful completion of such process and after a
determination that there are no unmitigated significant
environmental effects, and upon determination that such action
is in full compliance with the provisions of Public Resources
Code section 21002 approve (a) the amended application, (b) an
amendment to Tiburon's General Plan adopted September 281 1989
to permit the development of a subdivision on the site in
substantial conformity to the -amended application, (c) an
amendment to Tiburon 's Ordinance 306 N.S. , approving Taldan's
master plan application reflecting, as necessary, (a) and (b)
above, (d) the Development Agreement, and (e) a final map
generally consistent with the approved, precise plan/tentative
map. Tiburon shall endeavor to fully process and take final
. action on the amended application within 150 days of the date
of this agreement, and to this end shall schedule any required
Page 3
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Town Council or Planning Commission hearings or other required
meetings as soon as practicable after completion of any
required application documentation and after completion of all
required CEQA processes. Final action and decision on this
matter shall be taken promptly after completion of any required
hearings or deliberation. Any action taken by Tiburon in
furtherance of the approval of items (a) through (e) above
shall be considered in substantial conformity with the amended
application, and shall be satisfactory to Taldan, so long as
the approvals result in a subdivision of the site which allows
for twenty-two (22) residential units on the site and are
otherwise consistent with the provisions of this Agreement.
Furthermore, so long as the exercise of such power does not
work to reduce or impair the other specific provisions of this
agreement,Cthe Town Council retains the power to redefine or
relocate building envelopes on individual parcels during the . �:�-•
development approval process and to require that any and all `
accessory structures, including swimming pools and the like be
,•
located within the ultimately approved building envelopes
• f41
3 . Processing of Applications. Tiburon shall =' V
promptly process all applications made by Taldan (or its
successors in interest, transferees, dt assigns) for the
amendments referred to above, design review, building permits,
or for any other permits or approvals required in connection
with development of the Project and construction of
improvements thereon in accordance with the Town's Ordinances
in effect as of the date the application is acted upon by the
Town Council except that no changes in any such ordinances made
after the date of this agreement shall work
to delay, modify, reduce or impair the specific provisions of
this agreement, including without limitation, the provisions
affecting timing, number of lots, lot size, fees, or any of the
provisions of section 2 and 9 of this agreement. Nothing
contained herein shall be deemed to entitle Taldan (or their
successors in interest, transferees, or assigns) to further
subdivide any lot in the Project after the re-subdivision
contemplated by Section 2 has been completed, and any
application by Taldan to further subdivide any lot on the
Project after the re-subdivision contemplated by Section 2 has
been completed shall be subject to approval by the Town Council
of Tiburon.
4 . Building Permits. Tiburon agrees that all
applications for building permits submitted on any of the lots
approved pursuant to the provisions of section 2, above, will
be acted upon within ninety (90) days from the date an
application is accepted as complete.
5. Fees. Taldan shall be obligated for the following
subdivision and building permit fees to which all other lots in
Tiburon are subject, i.e. (a) traffic mitigation fee ($2960 per
Page 4
,:
lot) , (b) Tiburon Blvd. improvement fund ($1974 per lot) , (c)
park and recreation fee ($500 per lot) , and (d) drainage impact
fee (approximately $41, 600) . In addition, Taldan shall pay a
fee of $150, 000 within 10 (ten) days of securing the approvals
described in section 2, above, and pay an additional fee of
$1501000 coincidental with and as a pre-condition of the
recordation of a final map or the issuance of a grading permit,
whichever occurs first. Any fees imposed by Tiburon which
were not assessable or subject to imposition against Taldan or
the Project on the date of this agreement, other than those
covering the current costs of the Town's normal processing of
building permits and design review applications, and excluding
fees imposed for school impact, or other purposes required by
state statute, shall not be assessed or imposed against Taldan
or the Project for the development of the Project permitted
hereunder. In addition, Taldan shall be responsible for the
fees described in section 8, below. Compliance with the in-
lieu provisions of Ordinance No. 339 N.S. shall be the
responsibility of Tiburon, and not Taldan, which compliance
shall be satisfied from the unallocated fees, above.
6. No Application of Certain Laws. Tiburon agrees
that for a period of five (5) years frit and after the
effective date of this Agreement, Tiburon shall not (i) in
connection with processing applications referred to Section 2
above, apply to Taldan (or their successors in interest.,
transferees, or assigns) or the Project any .policy, standard,
ordinance, or law adopted by Tiburon on or after the date the
application is determined complete if the application of such
policy, standard, ordinance, or law works to delay, reduce or
impair the specific provisions of this agreement, including
without limitation, the provisions affecting timing, number of
lots, lot size, fees, or any of the provisions of section 2 and
9 of this agreement, except that Taldan shall be subject to the
provisions of Section 9 hereof; (ii) seek to merge any lots on
the Project; or (iii) apply to the Project or to any
application for tentative or final map amendment, master plan
amendment, subdivision map, design review, building permit or
any other permit or approval in connection with development of
the Project, Measure C or any other moratorium ordinance,
whether enacted by the Town Council or the electorate.
7. Exemption of Project from Growth Control Measures.
In addition to Section 6 above, Tiburon agrees that it will not
apply to the Project or to any application for tentative or
final map amendment, master plan amendment, subdivision map,
design review, building permit, or any other permit or approval
in connection with development of the Project, any growth
control measure enacted by Tiburon, whether enacted by the Town
Council or the electorate for a period of five (5) years from
the effective date of this Agreement. Within that five (5)
year period, the Project will be exempted from such growth
Page 5
control measure so as to permit the issuance of building
permits to Taldan or their successors in interest, transferees,
or assigns to allow construction of the total number of houses
approved pursuant to section 2, above. As used in the
foregoing, "growth control measure" refers to any policy,
standard, ordinance, or law which has as its purpose or effect
the limitation of development of construction with Tiburon,
including without limitation any measure which limits, by
number, the building permits that may be issued for residential
construction in Tiburon on an annual basis
8. Undertakings by Taldan. Taldan warrants that it
will pursue those applications referred to in Paragraph 2 with
all due diligence. Taldan acknowledges that Tiburon shall hire >ar
the planning and legal services of an outside law firm for
purposes of processing Taldan's application pursuant to section
2, above. Taldan agrees that it shall reimburse Tiburon for r
all fees and expenses charged to Tiburon by such firm as a = ='
!Yi.
result of its work performed on behalf of Tiburon in processing
Taldan's application.
9. Development Agreement. Concurrently with its
processing of the applications referr9d to in Section 2 above;
Tiburon and Taldan shall jointly prepare for execution by the
parties a development agreement (the "Development Agreement")
consistent with the terms hereof and the . provisions of the t
State Development Agreement Law (California Government Code
section 65864 et. seq. ) and containing such other terms and
provisions as are customary and reasonable to effectuate the
intention of this Agreement. Said Development Agreement shall
provide, inter a'lia, for the following terms and provisions,
which terms and provisions shall supplement the terms and
provisions of this Agreement:
A. Lot Coverage. The building coverage of
individual lots within the Project containing 15, 000 or less
square feet shall not exceed 30% of such lot, and the building
lot coverage of individual lots containing more than 15, 000
square feet shall not exceed 20% of such lot.
B. FAR Limitations. The adjusted floor area
ratio limitations ("FAR") for each lot in the Project,
(exclusive of up to 500 feet of garage area) , shall be: 1) ten
(10) percent of the property area plus 2 , 000 square feet for
lots with area of property from between 7, 500 square feet and
up to and including 60, 000 square feet; and, 2) lots with area
of property of more than 60, 000 square feet shall not have a
FAR limitation but instead, subject to the other regulations to
be applied to the property which may result in limiting floor
area coverage, such lots may be allowed to construct a maximum
of 8, 000 square feet of floor area in addition to a maximum 500
square foot garage. Although it is not contemplated that any
Page 6
lot shall have an area of property of less than 7, 500 square
feet, in the event such lot is approved it shall have an
adjusted FAR of thirty-five (35) percent of the property area.
C. Height Limitations. Building height limits
for each lot shall be a maximum of 25 feet from "grade" as
that term is defined in the revised zoning ordinance as
recommended to the Tiburon Town Council by the Tiburon Planning
Commission in Planning Commission Resolution #481-90 dated
February 14, 1990 and first submitted to the Town Council on
February 21, 1990, except that the building height limits for
the region represented by Lots 11 through 22 as shown on
Exhibit A hereto shall be a maximum of 30 feet from grade as
that term is defined above. The maximum height of any approved
building shall ultimately be decided by Tiburon's Design Review
Board (DRB) and the DRB shall have the power to reduce the
height of any building below the above established maximum
heights pursuant to and based on reasonable criteria of the
DRB, provided however that in no event shall any building be
reduced below two stories.
D. Design Review. In order to implement the
development provisions herein specifi6d, Tiburon shall be bound
by the design review criteria set forth in its "Design
Guidelines for Hillside Dwelling's attached as Exhibit B hereto
in effect as of the date of this Agreement and such other
design review policies generally applied to hillside
developments. In addition, Taldan shall submit a three-
dimensional scale model of the entire project site showing
approved streets and other such improvements and showing as-
built contours and significant natural and physical features of
the site. This model shall be retained by Tiburon for use in
future discretionary reviews and approvals, and may be
presented in electronic medium if such is approved by the DRB,
otherwise it shall be presented in physical form. As individual
residential projects are proposed, the applicant shall supply a
scale model of the proposed project which shall be built to the
same scale of, and shall be compatible with, the subdivision
project model and which shall be retained by Tiburon and made a
part of the subdivision model if approved. In addition, during;
the processing of the amended application and prior to seeki
design review approval for any individual residential unit,
Taldan shall submit for the review and approval of the Town
Council a design theme to be carried out throughout the S
subdivision in the individual -homes to be constructed. All p�
residential units to be constructed on the site shall be �;�
consistent with the approved scale model and design theme. '
Furthermore, the CC &- R's established for this project by �e`b
Taldan or any successor in interest shall require that all
construction in the subdivision be subject to the design them
Page 7
E. General Standard of Tiburon Review. To the
extent that Taldan must obtain additional ordinances, approvals
or permits before completing construction of the Project, some
of which are discretionary in nature, Tiburon shall exercise
its discretion or take action in a manner which complies and is
consistent with the standards, terms, and conditions contained
in this Agreement, and in a manner which will not materially
interfere with the development of the Project on the site in
the manner contemplated hereunder, or with the rate of
development selected by Taldan.
F. Eucalyptus Grove. Unless otherwise agreed by
the parties in their reasonable discretion, the existing
eucalyptus grove (the "grove") in the Project will be
maintained on a single lot to be owned in common by the
contiguous lot owners. Tiburon shall have the right to cause
to be created a special assessment district consisting of such
contiguous lots for the purpose of assuring maintenance of the
grove by Tiburon. Taldan shall cause the grove to be clearly
marked with low bollards in order to identify same and protect
against tree removal or inadvertent use thereof. Tiburon may
adopt ordinances restricting unauthorized tree or limb removal
provided such ordinances do not materkally interfere with the
development of the Project as contemplated hereunder.
G. Grading Permit. Because of the benefit
accruing to Tiburon and persons residing near the Project which
will result from the repair of slides and from drainage work,
Tiburon shall accept and process the application of Taldan (or
its successors in interest) for a grading permit upon Tiburon's
receipt of such application and will, prior to recordation of a
final map and or during the months of October through April,
permit the Town Engineer to issue such grading permit if
winterization plans satisfactory to the Town Engineer are
provided.
H. Maintenance of Drainage Systems and Improvements
The maintenance of all drainage systems and improvements
installed on privately owned property shall be the
responsibility of the Homeowners ' Association established for
this project. The CC & R's established by Taldan or any
successor in interest shall provide for such continuing
responsibility in a manner satisfactory to the Town Engineer
and the Town Attorney.
I. Protection Against Endangerments. Nothing shall
be construed to limit the authority of Tiburon to adopt and
apply ordinances for the purpose and which have the effect of
protecting persons or property from dangerous or hazardous
conditions which create a substantial physical risk to persons 4
or property.
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10. Challenge Action.
A. One hundred twenty days after the approvals
referred to in Section 2 , provided no complaint, claim, or
action shall have been instituted and not have been dismissed
which challenges (i) the validity of Tiburon' s approval of the
amended application consistent with the provisions of section
2, above, (ii) the validity of the lots on the Project, whether
by merger or by other proceeding, (iii) the Development
Agreement, or (iv) the enforceability of any other provision of
this Agreement benefiting Taldan, including without limitation
a challenge under the California Environmental Quality Act (or
any condition of approval in connection with such approvals)
(collectively, a "Challenge Action") , Taldan and Tiburon shall
each (a) dismiss their claims, but subject to the Reservation
of Rights set forth in Sections 10B, 10C and 10D hereof, and
(b) execute mutual waiver releases in form reasonably
satisfactory to the parties of all claims for damages that
either party may have against the other party, its officers, ,
employees, agents, or attorneys, based upon or arising out of
or in connection with (1) the processing and/or denial of
Taldan's precise plan/tentative map application, (2) the
enactment and application to the Proj&tt of Measure C, or (3)
any other Claims provided however, that such waiver shall be
subject to the same Reservation of Rights set forth in Sections
10B, 10C and 10D hereof and shall not be deemed a waiver of
Taldan's rights to enforce the terms of this Agreement or the
Development Agreement, or to reinstitute the Claims pursuant to
the provisions of section 10B, below. For purposes of this
Agreement, "Claims" shall mean the Moratorium Lawsuit, the
Moratorium Appeal, the Precise Plan Lawsuit, the Precise Plan
Appeal and any other suit, controversy, claim or judgment which
has accrued on or prior to the date hereof and is based upon or
arises out of or arises out of or connection with the matters
referred to in (1) and (2) above of this Section 10A, and it
shall also mean the benefit of any judgement or other decision
which either party may be entitled to as a result of any
further development as described in Paragraph B of the "Factual
Recitals", above. To the extent that the provisions of this
section could be interpreted to be a general release from
liability, it is the intent of the parties to waive and they do
hereby expressly waive, the rights, benefits and remedies of
State 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
favor at the time of executing the release which, if
known by him must have materially affected his
settlement with the debtor.
B. Notwithstanding the provisions of Section 10A
above, in the event (a) a Challenge Action shall be instituted
Page 9
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at any time within two years after Taldan shall have dismissed
the Claim or (b) in the event of the Town 's failure to abide by
a material term of this Agreement, Taldan shall have the right
to reinstate any of the Claims without prejudice to Taldan (or
their successors) and to seek all forms of relief against the
Tiburon (including monetary damages) upon any grounds raised in
the Claims; such right, however, shall be subject to the
following qualifications: (i) Taldan (or its successors in
interest) shall use its best efforts to obtain a prompt
dismissal of all Challenge Actions, Tiburon shall cooperate and
assist Taldan in such efforts and shall use its best efforts to
obtain such result, and Taldan (or its successors in interest)
shall have the primary responsibility for the combined effor.:ts
of Tiburon and Taldan, in this regard; (ii) the right of Taldan
to reinstitute the Claims shall be conditioned on the failure
of either Tiburon or Taldan (or its successors in interest) to
obtain -.dismissal of all Challenge Actions within one hundred
twenty (120) days of written notification to Tiburon of the '°.•;,�`
filing of any given Challenge Action; and (iii) if each
respective Challenge Action is dismissed within said one
hundred twenty (120) day period, Taldan (or its successors in
interest) shall have no further right to reinstitute or, if
reinstituted, to continue or maintain "said Claims as a result
of such Challenge Action unless said dismissal is overturned on
appeal, in which event Taldan (or its successors in interest)
shall be entitled to reinstitute either or both of said Claims.
Each party shall bear its own costs and attorneys ' fees in all
Challenge Actions.
C. If the Claims are not dismissed for any
reason permitted hereunder (e.g. because of a failure of
Tiburon to approve the master plan, development agreement,
tentative map or precise plan) , or in the event the Claims are
reinstituted pursuant to Section 10B hereof: (i) Taldan and
Tiburon shall be entitled to the benefits of any judgments or
orders, or (ii) Taldan and Tiburon shall be entitled to assert
any and all defenses thereto (other than (a) any limitations
period imposed by any statute, rule, regulation, ordinance,
practice or principle of law (whether imposed by any agency of
Tiburon, the State of California or any other agency) and (b)
any time period within which any development approvals
previously granted to Taldan or its predecessors with respect
to the Project are effective, all of which shall be waived for
a period equal to the time which elapses between the date of
this agreement and the date on which the Claims are recommenced
or reinstituted) ; (iii) any new general plan or amendment to
the existing general plan shall not apply to the Project
following the recommencement or reinstitution of the Claims for
a period of time equal to the time which elapses between the
date of this agreement and the date on which the Claims are --
recommenced or reinstituted; (iv) Tiburon shall be entitled to
revoke the master plan and Development Agreement and any and
Page 10
b
all approvals, permits and authorizations granted to Taldan in
connection therewith or subsequent thereto; and (v) Tiburon
shall have no further obligations under this Agreement. It is
the intent of the parties that in the event the Claims are so
recommenced or reinstituted that this paragraph shall operate
to place both parties in the same position they were in on the
date of this agreement had this Agreement not been entered
into, and any releases and waiver of damages in connection with
the Claims shall be deemed revoked and of no further force and
effect.
D. Except as otherwise waived, relinquished or
surrendered by the provisions of this agreement, Taldan, for
itself and its successors and assigns, reserves all rights with
respect to any acts or omissions taken or failed to be taken by
Tiburon after the date of this agreement in connection with the
future processing of applications for precise plan,
subdivision, design review or building permits or for any other
permits or approvals in connection with development or
construction of improvements on the Project.
11. Additional Conditions of Settlement.
rs
A. In the event Tiburon, without the consent of
Taldan, modifies the master plan, amended application, the
Development Agreement, and/or the ordinance approving either of
them, after this Agreement is executed by Taldan, other than
for the purpose of making such approvals and/or Development
Agreement consistent with the provisions of this Agreement,
Taldan shall without limiting any other rights or remedies
available to it, have the right, to be exercised within five
(5) business days after Tiburon adopts such approval or
ordinance adopting either of them, of terminating this
Agreement and all rights, duties and obligations of the parties
hereunder.
12 . Additional Provisions.
A. Prevailing Party. Should any party hereto
commence any action or proceeding in court to enforce any
provision hereof or for damages by reason of any alleged breach
of any provision of this Agreement or for declaratory relief,
the prevailing party shall be entitled to recover from the
losing party or parties, in addition to any other relief
awarded, such amount as the court may adjudge to be reasonable
attorneys fees for services rendered to the prevailing party in
such action or proceeding.
B. Binding Effect. This Agreement and its terms
shall inure to the benefit of and be binding upon each of the
parties hereto and each and all of the successors, assignees,
buyers, grantees, vendees, or transferees of Taldan and its
Page 11
i
S"l.Y;;;.f 4 "•.-I �i ."� �"'_�. - ..,y 2 q�yl; iir�1.
past or present, direct or indirect, partners, subsidiaries,
associates, present, direct or indirect, partners,
subsidiaries, associates, divisions, or affiliates and their
representatives, and each of them, as though they were parties
hereto.
C. Governing Law. This Agreement shall in all
respects be construed, interpreted and enforced in accordance
with and governed by the laws of the State of California.
D. Construction of Agreement. This Agreement
shall not be construed against the party preparing it, but
shall be construed as if all parties jointly prepared it.
E. No Waiver. The failure of any party to this
Agreement to insist on strict adherence to one or more or all
of the covenants and restrictions of this Agreement, on one or
more occasions, shall not be construed as a waiver, nor shall ,
it operate to limit, impair, preclude, cancel or otherwise
affect such parties ' rights or remedies. r
F. Warranty of Authority. Each person who
executes this Agreement represents and%warrants that he has
such authority and agrees to hold the other party harmless
against any loss or liability, including reasonable attorneys '
fees, by reason of any claim by anyone that this Agreement, or
any portion thereof, is invalid by reason of said person's lack
of authority to execute this Agreement.
G. Integration. It is hereby further understood
and agreed that no promises, representations, understandings,
or warranties have been made by either party other than those
which are expressly contained herein.
H. Entire Agreement. This Agreement constitutes
the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior negotiations,
agreements and stipulations, whether written or oral. This
Agreement may not be altered or amended except by an instrument
in writing executed by the parties hereto.
I. No Precedent. This Agreement is unique to
the parties and circumstances of the Claims and is being
entered into solely for the purpose of settlement of
litigation. It shall have no effect in any other case or
situation, nor shall it be cited or used as precedent affecting
any other case or situation involving Tiburon or other
developers of property.
J. Attorneys Fees. Each party shall bear its -�
own costs and attorneys ' fees in each of the Claims.
Page 12
K. Notices. Any notice which may be permitted,
required or desired to be given in connection therewith shall
be given in writing and directed to the parties hereto as
follows:
If to Taldan: Taldan Investment Company
2740 Hyde Street
San Francisco, CA 94109
If to Tiburon: Town of Tiburon
Tiburon Town Hall
1155 Tiburon Blvd.
Tiburon, CA 94920
All notices shall be either (i) personally delivered
(including delivery by Federal Express or other courier
service) to the offices set forth above, or (ii) sent by
certified mail, return receipt requested. Either party may
change its mailing address at any time by giving written notice
of such change to the other party in the manner provided herein
at least 10 days prior to the date such- change is effected.
All notices under this Agreement shall be deemed given,
received, made, or communicated on theAdate personal delivery .
is effected or, if mailed, on the delivery date or attempted
delivery shown on the return receipt.
L. Approval. Unless otherwise herein provided,
whenever approval, consent or satisfaction (herein collectively
referred to as an "approval") is required of Tiburon pursuant
to this Agreement, that approval shall not be unreasonably
withheld.
M. Invalidity. Invalidation of any of the
provisions contained in this Agreement, or of the application
thereof to any person, by judgment or court order shall in no
way affect any of the other provisions hereof or the
application thereof to any other person or circumstance and the
same shall remain in full force and effect, unless enforcement
of this Agreement as so invalidated would be unreasonable or
grossly inequitable under all the circumstances or would
frustrate the purpose of this Agreement.
N. Exhibits. The exhibits hereto are deemed
incorporated into this Agreement in their entirety by reference
thereto.
O. Further Acts. Each party covenants, on
behalf of itself and its successors, heirs and assigns, to take
all actions and to do all things, and to execute, with
acknowledgment or affidavit if required, any and all documents
and writings, that may be necessary or proper to achieve the
purposes and objectives of this Agreement.
Page 13
P. No Interference. Neither party shall do
anything which shall have the effect of harming or interfering
with the right of the other party to receive the benefits of
this Agreement. Each party shall refrain from doing anything.
which would render its performance under the Agreement
impossible. Each party shall do everything which this
Agreement contemplates that such party will do in order to
accomplish the objectives and purposes of this Agreement.
Q. Time is of the essence of this Agreement and
of each and every item and condition thereof.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
TOWN OF TIBURON
By: Its:-- bb L
TALDAN INVESTM T COMPANY
B �
y'. Its:
Approved as to form and content
as of this 28th day of March, 1990.
ATib ron Town Attorney Counsel for Taldan
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