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HomeMy WebLinkAboutTC Res 2014-06-18 (3)RESOLUTION NO. 19-2014 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING AN AGREEMENT AND ACCEPTING AN EASEMENT ACROSS PROPERTY LOCATED AT 35 LYFORD DRIVE IN TIBURON WHEREAS, the Town of Tiburon owns and maintains the public street known as Lyford Drive in the Town of Tiburon; and WHEREAS, the Richardson Bay Land Company ( "Owner") owns the property located at 35 Lyford Drive in Tiburon, CA ("Property "); and WHEREAS, the Property is traversed by a natural drainage swale; and WHEREAS, the Owner claims that the swale is expanding, due to erosion of its banks, because of increased water storm water runoff entering the swale from Lyford Drive; Owner claims that said damage is the Town's responsibility and the Town denies said claim; and WHEREAS, to avoid the cost and uncertainty of litigation, the Town and the Owner have negotiated a settlement agreement, which is attached hereto and incorporated herein by reference ("Easement Agreement", whereby the Town will construct project to divert most of the storm water runoff and the Owner will grant the Town and easement to accommodate the remaining storm water runoff; and WHEREAS, the Town is willing to accept the easement and the terms and conditions of the Agreement. NOW, THEREFORE, BE Pr RESOLVED by the Town Council of the Town of Tiburon that the Town of Tiburon approves the Easement Agreement and specifically accepts the easement offered by the Owner. The Easement Agreement shall be executed by the Town Manager and shall be recorded with the Office of the Marin County Recorder. The Town Attorney is authorized to execute any other documents that may be necessary or appropriate to complete this transaction. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on June 18, 2014 by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ATTEST- DIANE CRANE IACOPI, TOWN CLERK Doyle, Fraser, Fredericks, O'Donnell, Tollini None None ALICE FREDERICKS, MAYOR Town of Tiburon 2 Recording Requested by: Town Clerk of the Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA94920 APN 058- 301 -49 AGREEMENT REGARDING STORMWATER RUNOFF RELIEF AND GRANT OF EASEMENT �h This Agreement is entered into this day of June, 2014 by and between the Town of Tiburon, a California Municipal Corporation ( "Town ") and the Richardson Bay Land Company, a California Corporation ( "Owner "). RECITALS A Owner is the owner of that property located at 35 Lyford Drive in Tiburon, California, which is also known as Assessor's Parcel Number 058- 301 -49 ( "Property"). B The Property is traversed by a drainage channel ( "Channel "). During rainy periods, storm water runoff from properties and streets located in the upper Lyford Drive residential area occasionally enters the Channel. Over time, increased development of the uphill properties has increased the amount of storm water runoff. C The Town asserts that the public has the right to have the storm water runoff flow through the Channel. Owner acknowledges that some water in the Channel is a result of natural drainage patterns, but asserts that the increase in storm water volume due to the current level of development ( "Increased Runoff') has placed an undue burden on the Channel. D The Owner has requested that the Town divert all or some of the storm water runoff from the Property. Without admitting any liability for the drainage situation, the Town has agreed to construct an alternative storm drainage runoff system on the terms and conditions set forth herein. 1. The Town shall design, construct and maintain an enclosed pipe alternative storm drainage runoff system to divert a significant portion of the runoff from the Property in accordance PH with the plans attached hereto as Exhibit A ("Project "). In constructing the Project, the Town shall do the following: A Reconstruct as needed the existing 36" outlet into the Property into a junction manhole, or construct anew junction manhole inclusive of the existing 36" outlet, and install anew 18" reinforced diversion pipe in the manhole to re -route the "normal" volume of storm drainage runoff. The existing 36" outlet into Allen property will become an "overflow" pipe to handle the overflow resulting from heavy storm runoff. B Extend the aforementioned 18" diversion pipe approximately 271 linear feet to connect into an existing enclosed pipe storm drain system in Lyford Drive that extends down to Tiburon Blvd. C The Town shall bear all Project costs. D The Town will use its best efforts to complete the Project by November 30, 2014. The parties agree to extend this deadline as needed to accommodate Project delays that are not within the Town's reasonable control. 2. The Project will divert sufficient storm drainage flow such that most normal storm runoff will not enter the Channel. However, the Project will not divert all water from the Channel. Owner acknowledges and accepts that during periods of more intense and/or prolonged rain, runoff will overflow onto the Property and into the Channel. That portion of the water that is not diverted by the Project shall be known as the "Overflow Water." Owner further acknowledges that by entering into this Agreement and constructing the Project, Town does not admit any liability for any past or future water runoff onto the Property. 3. Owner hereby grants to the Town a perpetual, non - exclusive public drainage easement across that portion of the Property described in Exhibit B, which is attached hereto and incorporated herein by reference, for that portion of the runoff that is not diverted by the Project, provided, however, that Town will not cause said undiverted runoff to increase to the point where it unduly burdens said easement. The parties do not anticipate that uphill properties will significantly increase the impervious surfaces thereon in the future. 4. At all times, Owner or its successor in interest to the Property will be responsible for any required repairs to and restoration of the Property relating to past or future runoff including, without limitation, the Channel, except as expressly provided here. A. Owner intends to repair and restore the Channel so as to stabilize its banks and repair past erosion damage ("Owner Project ") at an estimated cost of one hundred twenty- 2 five thousand dollars ($125,000) ("Estimated Repair Cost "). In the event that the actual cost of the Owner Project exceeds the Estimated Repair Cost, Town shall contribute up to twenty -five thousand dollars to said project ($25,000) on a reimbursement basis ( "Town Contribution ") as set forth in subsection B. B. To receive the Town Contribution, Owner must submit to the Town invoices and other documents establishing the Owner Project's actual cost to the satisfaction of the Town's Director of Public Works. The Town shall reimbursement Owner for the portion of the proven expenses that exceed the Estimated Repair Cost. In no event shall the Town Contribution exceed $25;000. Only costs associated with repair and restoration of runoff damage shall be counted toward the Estimated Repair Cost and only such costs are eligible for the Town Contribution. For purposes of this Section 4, costs associated with repair and restoration of runoff damage shall include permits, studies and engineering required for said repair, as well as construction costs. C. Owner shall not make any improvements or repairs that interfere with the passage of the Overflow Water through the Channel. 5. The improvements constructed by the Town will direct non - overflow waters into the Town's pipeline system and thus are likely to prevent or reduce the likelihood of any hazardous or toxic materials released into the Town's streets or storm drain system reaching the Property unless said materials were released during a circumstance, such as prolonged heavy rain, which created Overflow Waters. Town shall manage the new pipeline system in such a manner as to avoid or minimize the flow of toxic materials onto Property should such an incident occur. Nothing in this Agreement shall be interpreted to create or expand either party's liability for hazardous or toxic materials that may be released onto the Property or into the Town's streets or storm drainage system by third parties. 6. The benefits and burdens of this Agreement shall inure to the benefit of, and be binding upon the parties, and their successors and assigns. The rights and obligations set forth in this Agreement are intended to be perpetual in duration. 7. Miscellaneous Provisions. A. Owner, on behalf of themselves, their heirs, executors, administrators, trustors, trustees, successors, affiliates, engineers, contractors, subrogors, subrogees, insurers, lessees, grantees, assignors, assignees, agents, employees, attorneys, consultants, experts, general partners, limited partners, and representatives, and all others, hereby forever release and discharge the Town and any of its subsidiaries, its Town Council, employees, agents, insurers, attorneys and all others from any and all known and/or existing actions, causes of action, obligations, costs, damages, losses, claims, liabilities and demands (including claims arising out of contract) arising out of or in any way connected with the Increased Runoff from Lyford Drive onto the Property. This release and discharge shall not apply to claims arising from the performance of this Agreement. B. It is understood and agreed by the Parties that this Agreement is the compromise of a disputed claim and that execution and performance of this Agreement is not to be construed as an admission of liability and that any liability is expressly denied. C. This Agreement, and each of its provisions, has been reached as the result of negotiations between the Parties in consultation with their respective attorneys. Each of the Parties expressly acknowledges and agrees that this Agreement shall not be deemed to have been prepared by, or drafted by, any particular Party or Parties hereto, and that the normal rule of construction, to the effect that any ambiguities are to be resolved against the drafting party or parties, shall not be employed in the interpretation of this Agreement. D. The laws of the State of California shall govern this Agreement. In the event that a dispute arises under this Agreement, the venue for resolving said dispute shall be the Superior Court of the County of Marin. E. This Agreement may be executed simultaneously or in any number of counterparts, each of which shall be deemed an original, equally admissible in evidence against any Party who has signed it, all of which together shall constitute one and the same agreement. Signatures delivered by facsimile shall be deemed original signatures. F. This writing is an integrated agreement and represents the entire understanding of the Parties relative to the subject matter described herein. No prior or contemporaneous agreements shall be enforceable if they materially alter, vary, or add to the terms of this Agreement. This Agreement may not be modified except by a writing executed by all Parties or their counsel. Each of the Parties agrees that no representation or promise not expressly contained in this Agreement has been made and further promises that they are not entering into this Agreement on the basis of any promise, representation, express or implied, not otherwise contained herein. G. The persons executing this Agreement represent and warrant that they have full authority to sign this Agreement on behalf of the Parties for which are acting and that said Parties will thereby be fully bound by the terms of this Agreement. H. Each provision of this Agreement shall be interpreted in such a manner as to be valid, legal and enforceable. A determination that any provision of this Agreement is for any reason invalid, illegal, or unenforceable shall not affect the validity of this Agreement and any other provisions herein, and this Agreement shall be interpreted and construed as if such invalid, illegal, or unenforceable provisions were not contained herein. I. The Town shall record this Agreement in the Office of Official Records of Marin County upon execution by both parties. TOWN Date: Approved as to form: Date: / /n 010/ l Margaret A. Curran, Town Manager for TOWN OF TIBURON Ann R. Danforth, Town Attorney for Town of Tiburon OWNER: Date: �I q Approved as to form: Date: Andrew Allen, President, RICHARDSON BAY LAND COMPANY Riley F. Hurd, III, Attorney for Richardson Bay Land Company NOTE: SIGNATURES FOR TOWN AND OWNER MUST BE NOTARIZED. 0 and any other provisions herein, and this Agreement shall be interpreted and construed as if such invalid, illegal, or unenforceable provisions were not contained herein. I. The Town shall record this Agreement in the Office of Official Records of Marin County upon execution by both parties. X TOWN Date: Margaret A. Curran, Town Manager for TOWN OF TIBURON Approved as to form: Ann R. Danforth, Town Attorney for Town of Tiburon OWNER: Date: Andrew Allen, President, RICHARDSON BAY LAND COMPANY, INC. Approved as to form: Date: Riley F. Hurd, III, Attorney for Richardson Bay Land Company ALL- PURPOSE ACKNOWLEDGMENT State of California � 'n County of 1 v ` p1✓'f SS. On beforeme,e�,yLcr L1vl - Pb7getk JCI0I4�106 DATE .A I _j personally appeared who proved to me on the basis of satisfactory evidence to be the person(a) whose name(a7) is /am subscribed to the within instrument and acknowledged to me that he /she#hey executed the same in his/herfteir authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(&), or the entity upon behalf of which the person(s)-acted, executed the instrument. QTIMOTHY PATRICKSOLOMON; COMM. # 2012441 NOTARY PUBLIC- CALIFORNIAU1 MARIN COUNTY 0 OMM. EXPIRES MARCH 16.2017 PLACE NOTARY SEALINABOVE SPACE I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. NOTARY'S SIGNATURE OPTIONAL INFORMATION The information below is optional. However, it may prove valuable and could prevent fraudulent attachment of this form to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) INDIVIDUAL CORPORATE OFFICER PARTNER(S) TITLE(S) ATTORNEY -IN-FACT TRUSTEE(S) GUARDIAN /CONSERVATOR 1421I:1:INl SIGNER (PRINCIPAL) IS REPRESENTING: NAME OF PERSON(S) ORENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT RIGHT THUMBPRINT OF SIGNER OTHER a F APA 01/2008 NOTARY BONDS, SUPPLIESAND FORMSATHITP : //WWW.VALLEY- SIERRA.COM 0 2005- 2008VALLEY- SIERRAiNSURANCE CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California - County of 7//~ On �� rX6`Y before me, / < ✓"-e Cate "/ / ^ !! l 1171, personally appeared DIANE CRANE IACOPI CoInlnroalon • 2026625 Notary Public - CaIHOM12' Malin County My Comm. Expires May 31, 2017 CIVIL CODE § 1189 I-e-f- who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that .he /she/they- executed the same in his/hertth& authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS m a, 1 seal. Signature: /jam Place Notary Seal Above OPTIONAL � Signatur ory t Ny ry PYdic � Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. �- Description of Attached Doc e � 1e: J/_ 1,, J Title or Type of Document: i�' Document Date: �(J — /�� Number of Pages: 5 7/" Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer's Name: , /V /T 1 Corporate Officer — le(1 ❑ Individual ❑ Partner — ❑ Limited ❑ General • Attorney in Fact • Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: • Corporate Officer — Title(s): • Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Item #5907 EXHIBIT A t Jr, a XI PROPOSED LYFORD DRIVE STORM RUNOFF RELIEF LINE ", yl a�l'g I SCALE: 1 INCH = 50 FEET 1 Mst 35 LYFORD DRIVE i! r EXISTING WATER LINE — — — — — — — — EXISTING SEWER LINE — '�6—` I EXISTING STORM DRAIN LINE — — — — — — sD I PROPOSED STORM DRAIN LINE I. i J I I I let U m,�. �I 40 FEET — CURB to CURB I 60 FEET R/W I IJ �I w I C \ I a I� �i� STORM DRAINAGE EASEMENT A Public Storm Drainage Easement dedicated to the Town of Tiburon by Owner(s) of 35 Lyford Drive AKA Assessor's Parcel Number 058- 301 -49. The center line of easement shall be the existing centerline of the drainage channel that commences on the Tiburon Boulevard west property line being also the southeastern property line of APN 058 -301- 49. The first twenty feet or so of the centerline is the center line /flow line of an existing 36 inch corrugated metal pipe (CMP) that is connected to a concrete storm drain junction box within the public right of way of Lyford Drive. Thereafter, the drainage easement centerline shall follow the existing drainage channel centerline as the existing drainage channel meanders through the property and exits the property at the common property line between APN 058- 301-49 and APN 058- 151 -41 (Reed Union School District). The subject easement shall have a width of 16 feet being 8 feet on each side of the aforementioned easement centerline. Any modification of the existing center line of the drainage channel by forces of nature or actions of property owner shall cause the center line of easement to move as well to remain concentric with existing center line of drainage channel.