Loading...
HomeMy WebLinkAboutTC Res 1996-11-06 (2) r 1""'_ RESOLUTION NO. 3191 I A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON AUTHORIZING THE MAYOR TO EXECUTE DOCUMENTS RELATING TO THE ACQUlSmON OF THE HARROMAN PROPERTY ON BEHALF OF THE TOWN OF TIBURON AND ACKNOWLEDGING THE VALIDITY OF THE DEVELOPMENT AGREEMENT RELATING TO A PORTION OF SAID PROPERTY WHEREAS, the Town Council of the Town ofTiburon approved an agreement (the "Purchase Agreement") for the purchase and acquisition of that certain property commonly known as the Harroman property on January 15, 1995, with Pine Street Management Company, a California Corporation doing business as the Harroman Company, Inc. ("Seller"); and ,... L WHEREAS, the Purchase Agreement provided for the Town, together with the Marin County Open Space District, to acquire the Harroman Property for a purchase price of six million eight hundred thousand dollars ($6,800,000); for the Town to give the Seller at close of escrow a promissory note in the amount of three million three hundred thousand dollars ($3,300,000) as partial payment of the purchase price ("Note"); and for the Note to be secured by a Deed of Trust on that portion of the Harroman Property defined in the Purchase Agreement as the "Developable Area" and by a Development Agreement which would allow the Seller to develop fourteen parcels on the Developable Area in the event that the Seller reacquires the Developable Area in fee by foreclosure under the deed of trust or deed in lieu of foreclosure; and WHEREAS, the intent of the parties was that the Town, acting in conjunction with. the Marin County Open Space District, would acquire the Harroman Property for use as permanent public open space and also obtain dismissal with prejudice of that litigation known as The Harroman Comoany. Inc. et al v. The Town ofTiburon. et al; . WHEREAS, the Note provided for payment of the principal on or before MaI:ch 1, 1997; and WHEREAS, on May 23, 1995, by Ordinance No. 414 N.S. and Resolution No.3093 and Resolution No. 3094, the Town Council approved the Development Agreement and other land use approvals mandated by the Purchase Agreement, which Ordinance took effect on June 23, 1995; and L WHEREAS, to ensure that the Development Agreement and related development approvals would not be implemented unless the Harroman Property was first conveyed to the Town pursuant to the Purchase Agreement, Section 5.11 of the Development Agreement provided for automatic termination of said Development Agreement and other specified related land use approvals if title to the Developable Area were not conveyed to the Town within six months after the date of the Development Agreement; and Town Council Resolution No. 3191 November 6, 1996 1 .- ~ r-.- I ..... L l .~ WHEREAS, at the time the Development Agreement was approved by the Town Council, the version of the Development Agreement so approved was not dated, it being the intention of the parties that the document would be executed and dated on or shortly before consummation of the purchase transaction (although such intention did not affect the effective date under Section 1.01 of the Development Agreement for purposes of determining the duration of the term); and WHEREAS, at the time that the Town approved the Purchase Agreement and the Development Agreement, both parties assumed prompt completion of the transfer of title to the Harroman Property to the Town; and WHEREAS, thereafter, the transfer of title was impeded for a substantial period of time by circumstances beyond the control of the parties, Le., the institution of litigation challenging the Purchase Agreement and the imposition of court-ordered stays mandating the delay in the transfer which delays have caused unforeseen difficulties in complying with the strict terms of the Purchase Agreement; and WHEREAS, the Ninth Circuit Court of Appeal issued a mandate remanding the matter to the District Court on August I, 1996 and on October 8, 1996, the District Court ordered the Seller to proceed with the transaction, which order was received by the Seller on October 15, 1996; and WHEREAS, the parties still desire to complete the transaction generally in accordance with the terms of the Purchase Agreement and to transfer title to the Harroman Property to the Town in the near future; and WHEREAS, by reason of the above-described unforeseen delay, the parties have agreed to cooperate to use their best efforts to achieve the parties' intentions and to take such actions as are necessary to complete the transaction and to effectuate their intentions in entering into the Purchase Agreement and the Development Agreement; and WHEREAS, in light of the above-described intentions of the parties, and based upon the language and purpose of the Development Agreement (including Section 5.11 thereof), and upon the above-referenced need to read the Development Agreement and other documents relating to the purchase in a manner that reflects the intentions of the parties, the Council finds and determines that (i) the Development Agreement can and should be executed and dated as of a date coincident with or shortly prior to consummation of the purchase transaction, without regard to the date of its approval or the effective date of the ordinance approving it, and (ii) the ISO-day period referenced in Section 5.11 of the Development Agreement means and refers to a period of 180 days beginning on the date of the fully executed Development Agreement (without regard to the date the Town approved the Development Agreement or the effective date of the ordinance approving it); any other interpretation would be contrary to the purpose and intention of the parties to complete the transaction described in the Purchase Agreement and to ensure that the Development Agreement and the development approvals referenced therein are in full force and effect if and when the Developable Area is conveyed to the Town; and Town Council Resolution No. 3191 November 6, 1996 2 -- '. r-c.. I ".... L ~ ... ,..j- WHEREAS, the Town expressly acknowledges that the Seller will rely on these findings and determinations regarding the Development Agreement, and that Seller would not be willing to consummate the sale at this time without these findings and determinations by the Town that the Development Agreement and the development approvals referenced therein are valid and in full force and effect and will be valid and in full force and effect on the date Seller conveys title to the Town; and WHEREAS, the parties intend to close escrow and transfer title to the property as promptly as possible; and WHEREAS, state law provides that the deed to the subject unit shall not be accepted for recordation without the consent of the Town evidenced by its certificate or resolution of acceptance attached to or printed on the deed or grant; and WHEREAS, close of escrow will require execution of the Note, Deed of Trust and Development Agreement on behalf the Town and of other, related documents, including, without limitation, a Certificate of Acceptance of the property; Estoppel Certificate addressed to Seller, and the Buyer's Escrow Instructions; and WHEREAS, the acquisition and acceptance of the Harroman Property will benefit the residents of Tiburon: NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Tiburon that the Mayor in office at the close of escrow to the Harroman Property is authorized to accept conveyance ofHarroman Property and execute and deliver all documents necessary to memorialize said acceptance and accomplish the conveyance, including, without limitation, the Note, the Deed of Trust, the Development Agreement and Buyer's Escrow Instructions. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on November 6, 1996 by the following vote: AYES: Ginalski, Hennessy, Thayer, Thompson, Wolf None COUNCILMEMBERS: NOES: COUNCILMEMBERS: #V7 ~/~ NICKY WOLF, MAYOR ATTEST: DIANE L. CRANE, TOWN CLERK Town Council Resolution No. 3191 November 6, 1996 3