HomeMy WebLinkAboutAgr 2016-01-20 (Point Tiburon Bayside Homeowners Association)PUBLIC PEDESTRIAN EASEMENT AGREEMENT
BETWEEN THE TOWN OF TIBURON AND THE POINT
TIBURON BAYSIDE HOMEOWNERS ASSOCIATION
REGARDING THE USE AND MAINTENANCE OF THE
MAR WEST STAIRWAY AND A CONNECTING
PATHWAY
This Public Pedestrian Easement Agreement ("Agreement") made this oC 0 --V• day of
J r 7 , 2016, by and between THE TOWN OF TIBURON, a municipal corporation
("Town") and THE POINT TIBURON BAYSIDE HOMEOWNERS ASSOCIATION, a
California Corporation ("HOA").
RECITALS
A. The HOA is the sole owner of certain real property commonly known as the Point
Tiburon Bayside "common area", as defined and depicted on the Condominium Plan for
Point Tiburon Bayside, filed for record with the Marin County Recorder as Document
Number 1985-0023362 on June 5, 1985 ("HOA Property"). A portion of the HOA
Property, graphically depicted on Exhibit A, contains a stairway ("Stairway") leading
down from Mar West Street toward downtown Tiburon. The HOA Property also contains
certain common area ("Pathway") that allows pedestrians to walk from the base of the
Stairway across the Point Tiburon Bayside complex to the parking lot entrance roadway
adjoining the HOA Property at its western edge. The Pathway location is graphically
depicted in Exhibit B.
B. The Town owns and maintains the public right of way for the portion of Mar West Street
adjoining the Stairway; said portion of Mar West Street is more precisely described in
Exhibit C.
C. For many years, members of the public have used the Stairway and Pathway as a means
of walking to downtown Tiburon. The Stairway is currently in need of reconstruction
to, among other things, meet current building code requirements.
D. To ensure that the Stairway and Pathway will remain available to the pedestrian public,
the parties have agreed to provide for future maintenance and responsibility for said
features as set forth in this Agreement.
AGREEMENT
1. Reconstruction of the Stairs. The HOA will reconstruct the Stairway as set forth in
August 17, 2015 revised plans submitted, approved by and on file in the Town Building
Division, which are incorporated herein by this reference ("Reconstruction Project").
2. Purchase of Easement. Upon completion of the Reconstruction Project, as determined
by the Town's Building Division, Town will purchase a non-exclusive public pedestrian
easement across the Stairway and the Pathway ("Easement") as set forth in this Section.
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(a) The purchase price of the Easement will be fifteen thousand dollars and
no cents ($15,000).
(b) The Easement shall commence when the Town accepts the Easement and
shall continue thereafter in perpetuity.
(c) The Easement will consist of two portions, the Stairway Access
Easement, consisting of the area graphically depicted in Exhibit A, and
the Pathway Access Easement, consisting of the area graphically depicted
in Exhibit B. Prior to recording the deed referenced below, the parties
shall obtain a legal description of the Easement that will be attached to
the deed.
(d) The deed used for the conveyance of the Easement shall be in substantial
conformance to the form set forth in Exhibit D.
3. Escrow.
3.1 Opening of Escrow. Within one business day after entry into this Agreement, the
Town shall open escrow ("Escrow") with Fidelity National Title Company (Mill
Valley Office) ("Escrow Holder"). The Town and HOA agree to execute and
deliver to Escrow Holder, in a timely manner, all escrow instructions necessary
to consummate the transaction contemplated by this Agreement. Any such
supplemental instructions shall not conflict with, amend or supersede any portion
of this Agreement. If there is any inconsistency between such supplemental
instructions and this Agreement, this Agreement shall control.
3.2 Close of Escrow. For the purpose of this Agreement, the "Close of Escrow"
shall be the date that the grant deed is recorded in the Official Records of the
County. The Close of Escrow shall occur within 10 business days after the
expiration of the Contingency Period, unless extended by the mutual written
consent of the parties hereto.
4. Conditions to Close of Escrow.
4.1 Conditions to Town's Obligations. The Close of Escrow and Town's obligation
to consummate the transactions contemplated by this Agreement are subject to
the satisfaction of the following conditions (or Town's waiver in writing thereof)
for Town's benefit on or prior to the dates designated below for the satisfaction
of such conditions, or the Close of Escrow in the absence of a specified date:
(a) Title. Within 5 calendar days of the Building Official's acceptance of the
Reconstruction Project as complete, the Town shall order a preliminary
title report. The Town will have the right to approve any and all matters
of and exceptions to title of the Easement as disclosed by that preliminary
title report. The parties shall work together in good faith until 5:00 PM
(local time) on the date that is 20 calendar days following receipt of the
preliminary title report ("Contingency Period") to resolve any title issues.
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No later than the end of the Contingency period, the Town must give the
HOA and Escrow Holder written notice ("Town's Title Notice") of
Town's approval or disapproval of the title documents. The failure of the
Town to give Town's Title Notice to the HOA within the specified time
period shall be deemed the Town's disapproval of the title documents. In
the event that the Town's Title Notice disapproves, or is deemed to have
disapproved, of any matter of title shown in the title documents, the
parties will have no further obligations or rights to one another under this
Agreement.
(b) Title Insurance. As of the Close of Escrow, Title Company shall have
committed to issue a title policy to the Town.
(c) HOA's Obligations. As of the Close of Escrow, the HOA shall have
performed all of the obligations required to be performed by the HOA
under this Agreement.
(d) Truthfulness at Close of Escrow. The representations and warranties of
the HOA set forth in this Agreement shall be true and correct, in all
material respects, on and as of the Close of Escrow as if those
representations and warranties were made on and as of such time.
4.2. Conditions to HOA's Obligations. The Close of Escrow and HOA's obligation
to consummate the transactions contemplated in this Agreement are subject to
the satisfaction of the following conditions (or HOA's waiver thereof) for HOA's
benefit on or prior to the dates designated below for the satisfaction of such
conditions, or the Close of Escrow in absence of a specified date:
(a) Town's Obligations. Town shall have timely performed all of the
obligations required to be performed by the Town under this Agreement.
(b) Purchase Price. Town shall have timely delivered $15,000 in good funds
to Escrow Holder and fully, faithfully and timely performed all of its
other obligations under this Agreement.
(c) Truthfulness at Close of Escrow. The representations and warranties of
the Town set forth in this Agreement shall be true and correct, on and as
of the Close of Escrow as if those representations and warranties were
made on and as of such time.
4.3 Failure of Condition to Close of Escrow. If any of the conditions set forth in
Section 4.1 or Section 4.2 are not timely satisfied or waived by the appropriate
benefited party for a reason other than the default of the Town or HOA, this
Agreement shall terminate, and any deposit and all other monies delivered to
Escrow Holder by the Town shall be immediately returned to the Town, and
except as otherwise provided herein, the parties shall have no further obligations
hereunder.
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4.4 Deposits By HOA. At least one business day prior to the Close of Escrow, HOA
shall deposit with Escrow Holder the following documents:
(a) Grant Deed. The grant deed, duly executed and acknowledged in
recordable form by the HOA, conveying the Easement to the Town.
(b) FIRPTA Certificate. A certification, acceptable to Escrow Holder, duly
executed by the HOA under penalty of perjury, setting forth the HOA's
address and federal tax identification number in accordance with and/or
for the purpose of the provisions of Sections 7701 and 1445, as may be
amended, of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder.
(c) California Franchise Tax Withholding. A certification, acceptable to
Escrow Holder, that the HOA is exempt from the withholding provisions
of the California Revenue and Taxation Code, as may be amended from
time to time, and that neither Town nor Escrow Holder is required to
withhold any amount from the purchase price pursuant to such
provisions.
4.5 Deposits By Town. At least one business day prior to the Close of Escrow, the
Town shall deposit or cause to be deposited with Escrow Holder the following:
(a) Purchase Price. The purchase price, in cash or immediately available
funds.
(b) Certificate of Acceptance. A Certificate of Acceptance, substantially in
form attached hereto as Exhibit E.
5. Maintenance of Stairway Improvements. After the Town has recorded record title to the
Easement, Town shall be responsible for maintaining all improvements within the
Stairway Access Easement portion of the Easement and shall indemnify, defend and hold
the HOA harmless from any claims arising from the public's use of the Stairway Access
Easement and the Pathway Access Easement, except for those arising from the
negligence or willful action or omission of the HOA. The HOA shall retain maintenance
responsibility for all other portions of the HOA Property with the exception of the
Stairway Access Easement.
6. Miscellaneous.
6.1 Governing Law, Venue. The laws of the State of California shall govern this
Agreement. If any dispute should arise from this Agreement, the venue for
resolving said dispute shall be the Superior Court of Marin County.
6.2 Severability. If any provision of this Agreement is found to be invalid or
unenforceable, the validity and enforceability of the remaining portions shall not
be affected unless the effect thereof would materially change the economic
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burden on either party.
6.3 Successors in Interest Assignment. This Agreement shall be binding on the
assigns and successors in interest to both parties. Neither party may assign their
obligations under this Agreement without the written consent of the other party.
6.4 Entire Agreement; Amendment. This Agreement represents the entire
Agreement between the parties. This Agreement may only be amended in
writing.
6.5 Exhibits. This Agreement includes the following Exhibits, which are attached
hereto and incorporated herein by reference:
Exhibit A: Graphical depiction of Stairway and Stairway Easement across a
Portion of the HOA Property
Exhibit B: Graphical depiction of Pathway and Pathway Easement across a
Portion of the HOA Property
Exhibit C: Legal Description of Mar West Street Right of Way
Exhibit D: The Form Deed
Exhibit E: Certificate of Acceptance
IN WITNESS WHEREOF the parties hereto have caused their duly authorized representatives
to execute this Agreement the day and year above written.
POINT TIBURON BAYSIDE TOWN OF TIBURON
HOMEOWNERS ASSOCIATION
3
By: e'A / 61. j1'1 u t
Its: President, Board of Directors �
AT ST.
By:
Its: Secretary of the Board
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By: =e 5 x,11 u_ t
Its: Town'iVianager
APPROVED AS TO FORM:
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APPROVED AS TO FORM:
Benjamin . Stock, Town Attorney
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Exhibit "C"
Legal Description
Portion of Mar West Street, Tiburon, California
All that certain real property comprising a portion of Mar West Street, situate in the Town of
Tiburon, County of Marin, State of California, described in the deed from Hugh Boyle and Ida
Boyle to the County of Marin, recorded at Book 191 of Deeds at Page 498, Official Records of
Marin County, to wit:
FIRST: .A strip of land fifty (50.0) feet wide and lying on the right or southerly side of
the following described line, to wit:
Beginning at a point distant South 73 degrees, 43 minutes, East 125.5 feet; and thence
South 52 degrees, 17 minutes, East 378.4 feet from "T.L.S. 447" of the official Survey of the
Swamp and Overflowed Tide and Salt Marsh Lands in Section 6, Township No. 1, South Range
No. 5 West M.D.X., running thence South 73 degrees, 8 minutes, East 475.7 feet.
SECOND: A strip of land sixty (60.0) feet wide and lying on the left or southwesterly
side of the following described line, to wit:
Beginning at the initial point of the first above described strip of land; running thence
North 52 degrees, 17 minutes, West 378.4 feet; thence North 7 degrees, 42 minutes, West 310.5
feet; thence North 16 degrees, 47 minutes, West 105.7 feet; thence North 46 degrees, 54 minutes,
West 95.3 feet; thence North 69 degrees, 47 minutes, West 61 feet; thence North 83 degrees, 7
minutes, West 90 feet; thence North 87 degrees, 58 minutes, West 173.9 feet; thence South 54
degrees, 5 minutes, West 91.2 feet; thence North 50 degrees, 49 minutes, West 200 feet; thence
North 57 degrees, 50 minutes, West 87 feet; thence curving to the right on the arc of a circle
having a radius of 55.64 feet, 54.56 feet; thence North 10 degrees, 20 minutes, West 93.5 feet;
thence curving to the right on the arc of a circle having a radius of 39.8 feet, 36.7 feet; thence
North 43 degrees, 00 minutes, East 185.9 feet; thence North 33 degrees, 13 minutes, East 49.9
feet; thence curving to the left on the arc of a circle having a radius of 91.25 feet, 57.6 feet; and
thence North 3 degrees, 11 minutes, West 78 feet to a point in the southerly line of Esperanza
Street, said point being distant South 3 degrees, 11 minutes, East 4 feet from a iron bolt.
EXHIBIT D
FORM OF DEED
Recording Requested by:
Town Clerk of the Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
GRANT DEED
GRANT OF PUBLIC PEDESTRIAN ACCESS EASEMENT, WITH
COVENANTS
For valuable consideration, receipt of which is hereby acknowledged, THE POINT
TIBURON BAYSIDE HOMEOWNERS ASSOCIATION, a California Corporation ("HOA" or
"Grantor"), hereby grants to the TOWN OF TIBURON, County of Marin, State of California, a
Municipal Corporation ("Town" or "Grantee") an Easement for Public Pedestrian Access, subject
to the terms and conditions set forth herein, on this day of , 2016 ("Effective
date").
RECITALS
A. The HOA is the owner of certain real property commonly known as the Point Tiburon
Bayside "common area", as defined and depicted on the Condominium Plan for Point
Tiburon Bayside, filed for record with the Marin County Recorder as Document Number
1985-0023362 on June 5, 1985 ("HOA Property"). A portion of the HOA Property,
described in Exhibit A attached hereto and incorporated herein by reference, contains a
stairway ("Stairway") leading down from Mar West Street toward downtown Tiburon, and
a pathway ("Pathway") leading from the base of the Stairway across the HOA Property to
its western edge. Said Stairway and Pathway together constitute the public pedestrian
access easement area ("Easement Area").
B. The Town owns and maintains the public right of way for the adjoining portion of Mar
West Street, said portion being described in Exhibit B attached hereto.
C. For many years, members of the public have used the Easement Area as a means of
walking to the downtown. To ensure that the Easement Area will remain available to the
pedestrian public, the parties have agreed to provide for future maintenance and
responsibility for said Easement Area as set forth herein and in the Use and Maintenance
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Agreement between the Town and the HOA regarding the Use and Maintenance of the Mar
West Stairway and a Connecting Pathway dated , 2016 and recorded in the
County of Marin Official Records on , 2016 as document No.
("Easement Agreement")
D. The Town of Tiburon Town Council adopted Resolution No. _-2016 on , 2016,
agreeing to accept the Easement being conveyed herein and authorizing the Town Manager
to execute all documents necessary and appropriate to complete the contemplated
transacti on.
Grant of Easement
1. For good and valuable consideration, receipt of which is hereby acknowledged,
Grantor hereby grants to Grantee, its successors and assigns, a ten foot (10') wide non-exclusive
easement (`Basement") for public access with the right of immediate entry and possession for a
public pedestrian trail in, on, over, across, under, through and along that portion of the HOA's
Property described in Exhibit A attached hereto and incorporated herein by this reference
("Easement Area").
Description and Purposed of Easement
2. The Easement is for public pedestrian access purposes for use by the general
public. The portion of the Easement Area shown on Exhibit A containing the Stairway shall be
known as the "Stairway Easement." The remainder of the Easement Area shown on Exhibit A
shall be known as the "Pathway Easement."
Term of Easement
3. The Easement and rights and obligations herein shall commence when the
Grantee accepts the Easement and shall continue thereafter in perpetuity.
Maintenance of Improvements
4. Grantee shall maintain the Stairway Easement in good repair, at Grantee's sole
cost and expense, including, without limitation, performing all maintenance, repair and other
work reasonably necessary to preserve and maintain the Stairway in a good and safe state of
repair.
5. Grantor shall retain responsibility for maintenance, repair and all other work for
the HOA Property outside the Stairway Easement including, without limitation, the Pathway
Easement.
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Hold Harmless and Insurance
6. Grantee shall hold harmless, inderrmify and defend Grantor from any claim, lawsuit
or liability involving the use by the public of the Easement Area. This Section shall not apply to
claims, lawsuits or liabilities arising from the negligent or willful act or omission of Grantor.
Notices
7. All notices, demands, consents, requests or other communications required to or
permitted to be given pursuant hereto shall be in writing, shall be given only in accordance with the
provisions of this section, shall be addressed to the parties in the manner set forth below, and shall
be delivered by certified mail return receipt requested, or by overnight courier or delivery service
with signature required, to the addresses set forth below, or to such other place as any party may
similarly in writing designate to the others. Notices shall be effective three business days after
mailing by certified mail or upon delivery by overnight courier or delivery service (or, if delivery is
not during regular business hours on a business day, then on the next business day).
The addresses of the parties to receive notices are as follows:
Grantor: POINT TIBURON BAYSIDE HOMEOWNERS
ASSOCIATION
210 Paradise Drive
Tiburon, CA 94920
Grantee: Town Manager
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, California 94920
Exhibits and Recitals
8. All exhibits and recitals referenced herein are incorporated into this Deed as
though set forth in full. This Deed includes the following Exhibits, which are attached and
identified as follows:
Exhibit A: Legal Description of Easement Area
Exhibit B: Legal Description of Adjoining Portion of Mar West Street
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Executed on , 2016, at Tiburon, Marin County, California.
POINT TIBURON BAYSIDE TOWN OF TIBURON
HOMEOWNERS ASSOCIATION
By:
By: Its: Town Manager
Its: President, Board of Directors
ATTEST:
By:
Its: Secretary of the Board
APPROVED AS TO FORM: APPROVED AS TO FORM:
Scott Phillips, Association Counsel Benjamin L. Stock, Town Attorney
Acknowledgment (attached notarizations for both signatures)
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EXHIBIT E
CERTIFICATE OF ACCEPTANCE
This is to certify that the easement interests in real property conveyed by the Grant Deed
dated , 2016, from The Point Tiburon Bayside Homeowners
Association, A California Corporation, as grantor, to the Town of Tiburon, a municipal
corporation, as grantee, are hereby accepted by the Town Manager of the Town of Tiburon
pursuant to authority conferred by Resolution No. of the Town Council adopted on
, 2016, and the Town, as grantee, consents to recordation of said
Grant Deed.
Date: , 2016 By:
Town Manager
State of California
County of
) ss
ACKNOWLEGEMENT
On before me,
Notary Public, personally appeared
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/her/their 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 my hand and official seal.
Signature (Seal)