HomeMy WebLinkAboutAgr 2001-05-24 (Brieant/Misurara)
Settlement Agreement
This agreement is made between the Town oC Tiburon, a California municipality
("the Town 9~), and Victoria E. Brieant and Malcolm A.. Misuraca, husband and wiCe
("Misuraca and Brieant").
Recitals
A. The subdivisioil in the late 1800s and the subsequent title history oC parts oC Old
Tiburon, a portion of the Town, have created ambiguities and a risk oC
misunderstanding, both oC which have brought the Town and Misuraca and
Brieant into conflict and litigation.
B. This agreement seeks to resolve that conflict and litigation amicably and to the
mutual benefit of the parties by documenting by this Agreement in the public
records:
(1) Resolution oC certain real prOI'crty interests in those parcels shown as
Parcels A, Band C in Exhibit A;
(2) A roadway easement granted to the Town on Parcel C;
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(3) Misuraca and Brieant's title to Parcel A as -free from any roadway
easement or any other Town-held property interest;
(4) An easement to the public for a existing path that provides public
pedestrian access from Diviso Street to Centro West Street ("Path") and
Cor its improvement and. pernaall1ciflt use by the public entirely at its own
risk;
(5) Maximum lot coverage and tloor~'area allowances for the Brieant and
Misuraca property at 223 Diviso Street;
(6) The reco'f~struction of an existing fence on the Drieant and Misuraca
property to mutually-agreed standards; and
(7) For the potent~a) of landscaping improvement to the Brieant and Misuraca
property as defined in this agreelnent.
c. This 2greement is the result Df a succ~:;$fu~ rtlediation on May 24, 2001 between the
T{j)~~!n and Br~~:ahlt and Misuraca before Jnhn W. Rosenberg. The terms of the mediation
agreement amo(Jg the pBrties and Mr. Rosenh:erg 90 that dllY are confirmed. This
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agreement replaces the "terms sheet" signed by the parties at the end of the mediation to
mark its successful conclusion. This agreement is subject to further mediation with
Mr. Rosenberg if any difference in its interpretation or enforcement arises. See
Paragraph 15, below.
D. On the approval by the Town Council of the Town of this settlement agreement and
its subsequent execution by the Town and Misuraca and Brieant, the parties will enter into
a stipulated declaratory relief and quiet title decree in the litigation entitled Brieant 1'.
Lyford, et aL, Marin County Superior Court No. CV 005280. A copy of that decree is
attached to this agreement as Exhibit No. B. Each party shall then execute the grant deeds
required by the decree, as described in this Agreement.
E. The parties will thereupon execute and record in the Marin County Records the
decree and grant deeds described in Recital D, above.
F. To the extent these recitals call for performance by the parties, th~y are made part
of the agreement below.
G. All recitals of fact in the agreement below are recitals.
A2reement
1. The real properties that are the subject of this_Agreement are Parcels A, Band C, as
depicted on Exhibit A. Within 30 days of the execution of this agreement, the Plaintiffs
Jhall at their expense have their surveyor prepare a legal description of Parcels A, Band C,
and of the Path described in Paragraph 9, for the review and approval of the Plaintiffs and
the Town. Such descriptions, when approved, shall thereafter substitute in all respects for
the drawing of Parcels A, Band C on Exhibit A and shall be used in referring to those
parcels and the Path in the decree and grant deeds required by this Agreement. In the
event that the surveyor is unable to complete these descriptions in the time allowed, "Brieant
and Misuraca shall inform the Town Attorney to that effect and shall have an additional 30
days in which the surveyor may complete the work.
2. Brieant and Misuraca are the fee owners of Parcel A. As part of the settlement of
this litigation, the Town will quitclaim to Brieant and Misuraca all right, title and interest
it claims in Parcel A. Within 30 days of receiving an accurate legal description of Parcel A,
the Town will execute the necessary quitclaim deed, to be prepared by Brieant and
Misuraca. The Decree described in Recital D shall reflect this quitclaim deed.
3. Within 30 days of receiving an accurate legal description of Parcel B, the Town
will quitclaim Parcel B to Brieant and l\fisuraca. The Town will except from this deed a
public access easement over the Path.
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4. Brieant and Misuraca have received a default judgment with respect to Parcel
C, quieting their title to Parcel C against all potential claimants except the Town and the
County of Marin, the Town's predecessor in interest. Within 30 days after the execution
of this Agreement, Plaintiff shall convey to Town by grant deed a right of way easement
for public street purposes on Parcel C. The Town knows of no competing claims to
Parcel C, since the County of Marin granted Parcel B to the Town.
s. The portion of Parcel C shown as a gravel area on Exhibit A is presently used for
parking. In exercising its easement over Parcel C, the Town will use its best efforts to
preserve the availability of this area for parking purposes. Parking capacity in this area
shall only be reduced to the extent that the Town Engineer determines that it is necessary
to do so to feasibly accomplish improvement of the intersection of Diviso Street and
Centro West Street.
6. The Documents required by this Agreement shall be executed as, soon as
practicable and simultaneously recorded no later than thirty days from the date that the
legal descriptions are approved under this Agreement. There shall be a closing at which
the executed documents are exchanged in counterpart originals. The parties shall
collectively select a person or title company to record all documents, which shall be done
simultaneously.
7. Brieant and Misuraca have submitted an application for Site Plan and
Architectural Revi~w of the Fence pursuant to the terms sheet rea~hed at the mediation,
which provides for the vertical height of the Fence to be reduced to one foot below the
,resent height of the fence, commencing from the fence post closest to thirteen feet from
the closest point of the existing deck adjacent to the Brieant and Misuraca home, and
continuing toward the southeastern end of the Fence until the height of the fence after
this one-foot reduction to the present highest part of the fence has been achieved where
necessary for the length of the fence. This application shall be subject to all normal
Town fees and requirements, except that it shall be subject to the review and approval
only of the Town Council. The Town Attorney and Planning Staff shall support. this
reconfiguration in all staff reports and hearings as the product of the mediated settlement
and an essential term thereof.
8. H the Town Council approves the application described in Paragraph 7, Brieant
and Misuraca shall immediately apply for an encroachment permit for the portion of the
fence that extends into Parcel C, and a building permit. These permits shall be subject to .
all normally applicable Town requirements and fees. Brieant and Misuraca shall
complete the reconstruction of the Fence within 30 days of receiving the last necessary
permit. The Town Attorney shall grant a one-time extension of this Construction
Deadline, not to exceed 30 days, upon a showing by the Brieant and Misuraca that
completion is not feasible within the first 30 days. This extension may be necessary,
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because Brieant and Misuraca cannot assure the availability of their fence contractor on
their timing, and because of the possibility of bad weather.
9. The Path is a public dirt walkway that may cross Parcels Band C, as indicated on
Exhibit A. Within one year of the date of this Agreement, Brieant and Misuraca shall
submit an application for permits as necessary to modify and improve the Path by the
installation of a set of wooden stairs at the top end and a second set of stairs at the
bottom end, all in keeping with the nature of the path and property. No further
improvement, including but not limited to hand- or guardrails or further grading or
pavement of the path, shall be required of Brieant and Misuraca or their successors at
any time. Brieant and Misuraca will apply for all permits necessary under Town law to
do the improvement of the Path, including entering into an encroachment agreement, if
necessary. These applications shall be subject to aU normal Town fees and requirements.
The Town shall approve said applications provided that they comply with all Town
requirements and further provided that Brieant and Misuraca agree to maintain the Path
improvements. Brieant and Misuraca shall complete installation of the ,improvements
within 60 days of the issuance of the last permit required for such work.
Notwithstanding the foregoing, the public shall use the walkway entirely at its own risk.
The decree described in recital D, above, shall provide for the walkway and its use by the
public entirely at its own risk.
10. Brieant and Misuraca intend to landscape in an integrated and consistent way
the property lying southeast of their house and deck out to the corner of Diviso and
Centro West (i.e., Parcels B and C). This landscaping will make (ull provision for the
Path described in Paragraph 9, which Brieant and Misuraca intend shall wind through
'he landscaping and be complemented by it. They will post the entry to the path from
each direction with a suitable discreet sign making clear that it is open to the public,
which is encouraged to use it so long as entirely at its own risk. Brieant and Misuraca
will apply for all permits necessary under Town law to do the landscaping, if any, subject
to all normal Town fees and requirements. After the completion of the landscaping, the
Town will make reasonable efforts not to disturb it and associated walls and other
improvements so long as it conforms to the permits granted for it and present Town law.
Notwithstanding the foregoing, the Town shall have the right to remove landscaping and
improvements on Parcel C to the extent necessary to accommodate improvements to the
public right of way as allowed by the easement granted in this agreement. The Town
Engineer shall have the sole discretion to determine the appropriate design of such
improvements and the extent to which they necessitate alteration of the improvements
and landscaping on Parcel C. No compensation shall be due to Brieant and Misuraca
from the Town in the event that it finds that it must disturb the landscaping and
improvements installed on Parcel C.
11. The Town has issued administrative citations in connection with the Fence.
Brieant and Misuraca deny the validity of the citations and have deposited $3399.00 to
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preserve their rights to aD administrative hearing ("Deposit"). As part of the settlement
of the matters covered by this Agreement, the Town hereby waives all other previously
incurred additional fines or other penalties that it has claimed against the Brieant and
Misuraca relating to the Fence in excess of the amount of the Deposit. The Town claims
that it bas expended at least the deposited amount in staff time and other costs and
therefore shall retain the Deposit to cover the Town's administrative costs associated with
the Brieant and Misuraca's Fence. Notwithstanding the foregoing, in the event that
Brieant and Misuraca fail to fully comply with this Agreement in accordance with the
deadlines set forth in this Agreement, the claim for Citation Fines shall be fully
reinstated, subject to the right of Brieant and Misuraca to seek an administrative
hearing, as before.
12. The maximum floor area ratio and lot coverage for the Brieant and Misuraca
property at 223 Diviso will be calculated as set forth in this section. This Agreement in
no way affects the discretion of the Town or its departments or boards in judging future
applications for land-use approvals, except to the extent that it identifies the maximum
lot coverage and floor area of the Brieant and Misuraca property. With the land
adjustments made in this agreement, in addition to the development allowed under
normal application of the Town's Municipal Code, the Town shall allow 223 Diviso (a) an
additional allowance of 600 square feet of lot coverage, which will accommodate the deck
extension described in Paragraph 13, below, or such other improvements as the lot
owners shall elect to make, and (b) an additional allowance of 345 square feet toward
floor area, bringing the total allowed additional and unutilized floor area to 800 square
feet in addition to the _existing floor area coverage on the property_.
l3. Brieant and Misuraca may extend the deck on the south side of their house by
approximately five feet further to the south or southeast to accommodate plans to use
plants that would to screen their house from view from the street. Town Staff approve in
concept this extension as a reasonable means to accomplish that objective. However, any
application for said deck extension shall be subject to all generally applicable
requirements under Town ordinances, regulations and policies. Any permit applications
shall be subject to all normal Town fees and requirements.
14. The respective counsel for the parties have negotiated this Agreement and it shall
not be interpreted against either party for having been the drafter or editor of the
Agreement.
15. In the event of a dispute over this Agreement and its interpretation, the parties
shall submit that dispute to Mr. John W. Rosenberg for his interpretation as mediator.
That mediation shall be non-binding and shall not affect any remedy the parties
otherwise have under this agreement.
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16. The parties shall bear their own attorneys' fees and costs incurred in connection with
the disputes that are the subject of this Agreement, except as provided in Paragraph 11
and herein. However, if any court action is commenced to enforce or interpret any tenn
or provision of this Agreement, then the prevailing party in such action shall be entitled
to his, her or their reasonable attorney fees, costs and necessary disbursements,
including, without limitation, expert fees and costs, mediation fees and the like, incurred
in such court action.
17. This Agreement benefits and binds the heirs, successors, personal
representatives, transferees, and assigns or each party to it. This Agreement when
approved by the Town Council shall be attached as an exhibit to the decree described in
recital D, above.
18. This Agreement contains the following Exhibits, which are attached hereto and
incorporated herein by reference:
Exhibit A
C)
Exhibit B
Diagram of Subject Property (Parcels A, Band
Quiet Title Decree
Dated:
By
Its
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PLAINTIFF
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Victoria E. Brieant
Malcolm A. Misuraca
This Agreement is approved as to fonn.
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Ann Danforth, T~wn Attorney
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Malcolm A. Misuraca, Attorney for Plaintiffs
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Brieant 3 1-24-02 rev ard 129-021
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Ann R. Danforth, Town Attorney
Tiburon Town Hall
1505 Tiburon Boulevard
Tiburon, CA 94920
State Bar No. 110399
Telephone No. (415) 435-7370
Facsimile No. (415) 435-2438
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Attorney for Defendant Town of Tiburon
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IN THE SUPERIOR COURT OF CALIFORNIA
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FOR THE COUNTY OF MARIN
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Victoria E. Brieant and Malcolm A. Misuraca,) Case No.: No. CV 005280
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Plaintiffs, ) FINAL ORDER AND DECREE'QUIETING
) TITLE TO REAL PROPERTY
vs. )
)
Heirs of Lyford et aI., Town ofTiburon, )
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Defendants )
)
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QUIET TITLE DECREE
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1 7 This decree in quiet title is adopted and ~xecuted by the Court pursuant to the stipulation
18 of the plaintiffs and the Town of Tiburon and the County of Marin, the remaining defendants in
19 this case. The County of Marin, after filing an answer to the complaint, transfer all of its right,
20 title and interest in the subject property to the Town of Tiburon and therefore has no further
21 interest in this litigation. The right, title, and interest of the other defendants was adjudicated in
22 prior decree in this action, the terms of which are incorporated and restated in this decree as
23 though set forth in full.
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25 Good cause therefore appearing, the Court enters its decree quieting title as follows:
Answer - 1
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1. Exhibit A depicts the property which is the subj ect of this Decree. Malcolm A.
Misuraca and Victoria E. Brieant are hereby declared to be the owners in fee simple as
community property of all that real property in the Town of Tiburon, County of Marin described
as Parcel A and Parcel C on Exhibit A to this decree, subject to the effect of paragraphs 2, 3, and
4 of this decree.
2. The Town ofTiburon shall forthwith execute a quitclaim deed to Parcel A and Parcel
B on Exhibit A, which deed shall be separately recorded, in favor of Malcolm A. Misuraca and
Victoria E. Brieant, as community property. This deed shall divest the Town ofTiburon of all its
right, title, and interest in Parcel A and Parcel B, except as set for in Paragraphs 3 and 4 hereof.
3. Notwithstanding the quitclaim deed described in paragraph 2, above, Parcel B is shall
be subject to the same roadway easement described in paragraph 4, below, to the same extent as
that easement provides for Parcel C.
4. Plaintiffs shall forthwith execute a grant deed to the Town of Tiburon ofa right of
way easement for public street purposes on Parcel C. The Town ofTiburon shall use its best
efforts in exercising its easement under this paragraph to preserve the availability of the parking
area on the existing gravel area utilized for parking on Parcel C. That parking area will only be
reduced to the extent that the Town Engineer determines that it is necessary to do so to feasibly
accomplish improvement of the intersection ofDiviso Street and Centro West Street in the Town
of Tiburon.
5. Plaintiffs shall grant to the public an easement over Parcel B and Parcel C for a public
dirt walkway on that portion of Exhibit A entitled "Pedestrian Easement." This easement and
walkway shall be open to use of the public, but only on condition that the use of the public of the
easement and walkway shall be entirely at the sole risk of those members of the public using
them and at absolutely no risk of the present or future owners of Parcel B and Parcel C.
Answer - 2
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6. This decree is consistent with that certain Settlement Agreement between the Town of
Tiburon and Malcolm A. Misuraca and Victoria E. Brieant of June -' 2002.
Dated: June -' 2002
Superior Court Judge
The form and substance of this decree are hereby approved by the following parties to
11 this decree.
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Dated: June _, 2002
Malcolm A. Misuraca
Victoria E. Brieant
THE TOWN OF TIBURON
By
Alex McIntyre, Town Manager
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THE COUNTY OF MARIN
By
Its
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RESOLUTION NO. 28-2001
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A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON ACCEPTING A CONVEYA1~CE OF
REAL PROPERTY FROl\'1 THE COUNTY OF MARIN
1. Findings of Fact.
A In 1954, the County of Marin acquired fee title to real property located on Centro
West Street near the intersection with Diviso Street ("Centro West Property"). The
Centro West Property is more particularly described in the Quitclaim Deed that is
attached to this Resolution as Exhibit A and incorporated herein. The acquisition was
intended to enhance the public right of way
B. The Town ofTiburon incorporated in 1964, automatically acquiring all right of way
with the Town limits previously held by the County of Marin. However, the Town
did not automatically acquire title to lands held by the County in fee. Therefore, the
County inadvertently retained title to the Centro West Property:
C. The County has no further purpose for the Centro West Property and therefore has
offered to convey it to the Town. The Town Council wishes to accept that
conveyance.
2. Resolution.
NOW, THEREFORE, BE IT RESOL \lED by the Town Council of the Town 0fTiburon that
the Town ofTiburon accepts the Centro West Property offered by the County of Marin as conveyed
by Exhibit A. The Town Attorney is authorized to execute all documents necessary to memorialize
said acceptance, including a certificate of acceptance.
PASSED Ai'ID ADOPTED at a regular meeting of the Town Council of the Town ofTiburon
on June 6, 2001 by the following vote:
AYES:
NOES:
COUNCILNfENIBERS:
COUNCILl\I1E:MBERS:
Bach, Gram, Matthews, Slavtiz, Thompson
None
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REW THONtPSON,
T own of Tiburon
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THlJlS IS~T ". E. AN
C i COP .
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TOWN CL K /