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HomeMy WebLinkAboutAgr 1999-09-27 (Dixon & Sharon Powers)'j-, 12 7- ~ P t5;; ~ AMENDMENT TO SETTLEMENT AGREETNIENT This Agreement to amend a prior settlement agreement ("Amendment") is entered into as of h..r' o? 1999, 11.1 n ("Town"), a municipal corporation, ti` per (collectively, "Powers"). RECITALS 1. The Powers are the owners of a .95-acre parcel located at 885B, C and D Tiburon Boulevard in the Town of Tiburon ("Property"), more particularly described in Exhibit A The Property is in the R-1 zoning district, which allows a maximum of one unit per parcel. There are presently three units on the Property, consisting of a single-family home ("Existing House") and a duplex ("`'sting Duplex"). These improvements are legal non.-conforming uses. 2. On June 3, 1998, the Town and the Powers entered into a document entitled Settlement Agreement and Mutual General Release, which Agreement provided for the subdivision of the Property into three parcels (Exhibit B). This subdivision would create a new Lot 3 that could be developed with a new single-family home. In considering the subdivision of the Property, the Town was particularly concerned that the density of the Property should not increase. Accordingly, under Paragraph I.A. of the Agreement, the Powers agreed that, prior to the recordation of the parcel map for the subdivision, they would convert the Existing Duplex into a single-family dwelling unit. 3. On May 2, 1999, the Powers requested that the Town amend the Agreement to extend the time for converting the Existing Duplex into a single-family dwelling unit. The stated purpose of this request was to extend the period of time during which the current occupants of the Existing Duplex could reside therein. 4. On August 4, 1999, after considering the Powers' request and public testimony therein, the Council decided to amend Paragraph 1.A of the Agreement so as to require the conversion of the Existing Duplex prior to the issuance of a Certificate of Occupancy for Lot 3. The Council found that this amendment would allow the current occupants the desi_red additional period of residency while still insuring that at n` time w:culd there be more than t1iree r?'~lling units on the Property. A GREE NIENT The Town and the Powers, in consideration of the mutual covenants herein, hereby agree to the following amendments to the Agreement: Paragraph 1.A of the Agreement is hereby amended to read as follows: POWERS, 8-99 Amend. to Settlement Ag. A. The Existing Duplex shall be permanently converted into a single-family dwelling unit. Prior to issuance of a Certificate of Occupancy for any dwelling on the proposed Lot 3, the Powers shall make such physical modifications deemed necessary by the Town Building Official to accomplish this conversion. These modifications shall include, at a minimum, removal of one kitchen and provision of an interior access connection between the floors of the building. 2. This amendment is granted by the Town for the purpose of allowing the tenants occupying the property on the date hereof to continue to reside on the property. The Powers will not allow the current tenants to sublet the property. Further, the Powers will convert the duplex to a single family dwelling before conveying any fee interest or interest less than a fee in the duplex. Notwithstanding the foregoing, the Powers may, prior to the conversion, encumber the duplex for the purpose of financing the improvements necessary to complete the conversion. 3. Except as amended herein, the Agreement shall remain in full force and effect. This Amendment shall be recorded in the Marin County Recorder's Office. The Agreement, as amended herein, shall run with the land and be binding on the Powers' successors in interest to the Property. Violation of any conditions set forth in this Amendment or the Agreement shall be considered a public nuisance subject to immediate abatement, either civilly or administratively at the discretion of the Town Attorney. The Powers hereby waive any right to contest such abatement. 4. . This Amendment, consisting of 2 pages, shall be construed and enforced in accordance with law of the State of California. This Amendment includes the following Exhibits, which are attached hereto and incorporated herein by reference: Exhibit A: Exhibit B : The Property The Agreement SHARON POWER LY OWER APPROVED AS TO FORNI- David Bowie, K e. Attorney for Sharon and Pixon Power THE TOWN OF TIBURON By: G 01, WWI Robert L. Kl nert Town Manager, Town of Tiburon APPROVED AS TO FORM: Ann R. Da rth, Esq. Town Attorney, Town of Tiburon POWERS, 8-99,4mend. to Settlement Ag. 2 J U D ESCRIPTION All that certain real property situate in the City of Tiburon, County of Marin, State of Califon, ia, described as follows: PARCEL ONE: BEGINNING at the most Southerly corner of that certain parcel land conveyed by Warren L. Bostick, et al, to Robert B. Aird, et ux, by Deed recorded September 1, 1949 in Book 616 O.R. Page 237; and running thence along the Southwesterly line of said property, North 550 061 20" West 193.93 feet; thence leaving said line and running North 490 32' East 60.0 feet, North 34" 24' East 182.50 feet, and South 550 18' East 179.573 feet to the Southeasterly line of said Ai rd property; running thence along said line, South 340 42' West 24 1.156 feet to the point of beginning. EXCEPTING THEREFROM AND THEREOUT that portion thereof described in Deed from George W. Schrank, et ux, to Robert B. Aird, et ux, dated January 11, 1955 and recorded February 11, 1955 in Book 920 O.R. Page 320. PARCEL TWO: AN EASEMENT 'over a 60.0 foot and a 50.0 foot strip of land as described in that certain Deed from Warren L. Bostick, et al, to Robert B. Aird, et ux, recorded September 1, 1949 in Book 626 O.R. Page 237. _ PARCEL THREE: AN EASEMENT for roadway and utility purpcses over a 40.0 foot strip of land, the center line being described as follows: BEGINNING at a point in the center line of the above referred to 50.0 foot Easement distant North 360 34' 30" West 203.724 feet from the Northwest corner of the above described parcel of land and running thence South 420 12' 30" East 288.741 feet. PARCEL FOUR: BEGINNING at a point on the Northwesterly line of that certain parcel of land described in the deed from Robert B. Aird, et ux, to George W. Schrank, et ux, recorded September 1, 1949 in Book 619 O.R. Page 367, distant along said line North 490 32' East 20.0 feet from the most Westerly corner thereof; thence from said point of beginning along said Northwesterly line, South 490 32' West 20.0 feet to said most Westerly corner being on the Southwesterly line of the parcel of land described in the Deed from Warren L. Bostick, et al, to Robert B. Aird, et ux, recorded September 1, 1949 in Book 626 O.R. Page 237; thence alons the Southwesterly line of the parcel of land described in said last mentioned deed North 40 28' West 17.0 feet to a point, thence leaving said line, Easterly in a direct line to the point of beginning. EXHIBIT N0. SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE This Settlement Agreement and tilutual General Release Agreement'') is entered into as of June 3, 1998 between the Town of Tiburon ("Totivn"), a municipal corporation, and Dixon Power and Sharon Power ("Powers"). RECITALS 1. The Powers are the owners of a.95-acre parcel located at 885B, C and D Tiburon Boulevard in the Town of Tiburon ("Property'), more particularly described in Exhibit A, which is attached hereto and incorporated herein by r~fere.^.ce. The Property is in -he R-I zor?nz district, which allows a maximum of one unit per parcel There are presently three units on the Property, consisting of a single family home ("LdstinQ House") and a duplex ("Existing Duplex"). These improvements are legal non-conforming uses. On August 8, 1996, the Powers submitted to the Town an application for a tentative subdivision map to resubdivide the Property into three parcels ("Subdivision Application"). Under the terms of the Subdivision Application, the Existing House would be situated on an 11, 3~4 square- foot parcel. The Existing Duplex would be situated on an 10,245 square-foot parcel and would be maintained as a duplex. The remaining poi Lion of the Property would cdnstitute a third parce: of approximately 20,000 square feet, which could be developed with a single-family dwelling unit. 3. The Town's Planning Commission held duly noticed public hearings on the Subdivision Application on April 9, 1997 and tilay 1=i, 1997. At the conclusion of the tilay 14, 1997 hearinQ, the Planning Commission determined that it could not grant the Subdivision Application under the Town's General Plan and Subdivision Ordinance. The Planning Commission adopted a resolution memoralizina its findings and decision on May ?S, 1997. 4. The Powers filed a timely appeal of the Commission's decision. The Town Council held a public hearing on this appeal on Auvist 6, 1-997. At the conclusion of this hearinQ, the Council decided to reject the appeal and uphold the decision of the Planning Commission. 5. On November 4, 1997, the Powers filed a petition forwrit of mandamus and complaint for declaration, relief and damages in Nfarin County Superior Court ("Petition"), Power v. The Town of Tiburon, et al, Case No. 172-) 14, (iVlarin Superior Court). 6. In the interest of avoiding unnecessary litigation, the parties desire to settle the aforementioned litigation on the terms set forth in this agreement. On May 6, 1998, the Town Council held a public hearing on the proposed settlement. On May 20, 1998, after considering all public testimony and all evidence in the record, the Council authorized the Mayor to execute this agreement. 1 E&3IBIT N0. 40~ AGREEMENT The Town and the Powers, in consideration of the mutual covenants of the Agreement, herebv agree to the following terms and conditions: . 1. The Town hereby approves the subdivision of the Property described in that Tentative Map - Minor Subdivision, Lands of Power, dated April 1997 ("Approved Tentative Map"), a copy of which is on file with the Town Planning Department and which is incorporated herein by reference, subject to the following conditions: A. The Existing Duplex shall be permanently converted into a sinQae-family dwelling unit. Prior to recordation of the parcel map for the subdivision approved herein, the Power s shall make such physical modifications deemed necessar,,i by the TownBuilding Official to accomplish this conversion. These modifications shall include, at a minimum, removal of one kitchen and provision of an interior access connection between the floors of the buildinsz. B. Prior to recordation of the parcel map for the subdivision approved herein, the Powers shall convert the carport for the Existing Duplex into an enclosed garage or shall demolish and replace the carport with a two-car gar age. ' C. Prior to recordation of the parcel map for the subdivision approved herein, the Powers shall lower the chimney on the existing duplex to the satisfaction of the Town Planning Director. D. Vehicular access to the proposed Lot 3 will be permitted via Las Palmas Way only until the adjacent -5.6 acre parcel at the end of Stony Hill Road is developed. At that time, Powers shall make any improvements necessary to provide access to Lot 3 from Stony Hill Road, which thereafter shall be the only access to Lot 3. The Powers will remove the drivewav providing access to Lot 3 from Las Palmas Way as soon as reasonably possible after access can be obtained from Stony Hill Road. In the event that the Powers no longer own Lot 3 at the time that performance ofthis condition is due, the then-owners of Lot 3 shall be responsible for performing this condition. This condition shall be noted on the parcel map. E. The Powers shall improve the corners of the driveway on the Power property providing access from Las Palmas Way to increase the turning radii to allow fire apparatus to make these turns. Such improvements shall be subject to the review and approval of the Tiburon Fire Protection District and the Town Engineer and shall be completed prior to issuance of a ce: -ificate of occupancy for the proposed Lot 3 J. F. Any development of Lot 3 shall comply with the requirements of the Town's Municipal Code, ificluding, without limitation, architectural and site plan review. The P.zo/ s maximum building envelope for Lot 3 shall be that set forth in the Approved Tentative Map. The maximum height of structures within the area designated as "'First Floor Bldg. Envelope" on the Approved Tentative Map shall be IS fee,, from grade. The maximum height of any garage on Lot 3 shall be 15 feet from finished grade. The development restrictions set forth in this section are intended to establish maximum parameters for construction on Lot 3. The DesignReview Board shall have full power to impose 5urther restrictions pursuant to the Tow-n"3 normally applicable regulations. G. The Powers shall comply with the mitigation measures included in the Negative Declaration adopted by the Town for this project. H. This Agreement shall ran with the land and be bindinz on the Powers' succ; ssors U-1 interest to the Proper-Li. 'Viclation of any conditions set forth in this Aareetment shall be considered a public nuisance subject to immediate abatement and the Powers hereby wai,~ e any right to contest such abatement. 2. The Powers accept the approval set forth in this Agreement in full settlement and compromise of their litigation against the Town. The Powers further agree that this Ac-reement shall fully and forever discharge and release any and all claims and causes of action, whether now known or now unknown, which the Powers have against the Town arising out of the events or incidents referred to in the Petition including anv claims for attorneys' fees and costs. This :~~7reement includes an express waiver of Ci` 'I Code section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to eX.ist in his favor at the time of executing the release, which if ow-n by him must have mate:~lally affected his settlement with the debtor." \9~4\ L 11_4yll~ hzli~ Powers (i' 't.) Town (init.) 4. The Town and the Powers shall execute and file a Stipulation for Judgment incorporating this Agreement and agree to an entry of Judgment ordering the Powers to dismiss all causes of action in the proceeding with prejudice according to the terms of this Agreement. Judgment may be entered by the Court upon submission of the documents by the Powers. Said. documents shall be submitted to the Court by the Powers on or before June I 1998. The Town shall thereafter file a copy of this Agreement and the Judgment with the County Recorder. The Powers shall defend, indernnifi, and hold the Town harmless from and against any and all liens, and other challenges that may be asserted by any person against or arising out of this Agreement. This obligation shall include, without limitation, the payment of anv awards of costs or attorneys fees against the Town as a result of defending this Agreement. In addition, without limiting the forgoing, in the event that the agreement is challenged by litigation, the Town shall have the option of tendering the defense of such action to the Powers. / 1. 3 0/ r 6. It is understood and agreed that this is a compromise settlement agreement of disputed claims, and that the execution of this Agree.*nent shall not constitute or be deemed or construed as an admission of liability on the part of any of the parties. 7. The parties acknowledge that they have been represented in the preparation of this Agreement by the below-listed counsel. The parties further acknowledge that they have read this Agreement and that they are fully aware of its intent and its legal effect and they have not been influenced to any extent whatever by any representations made to them by each other. The parties further represent that they participated in the negotiation of this Agreement and that it will not be interpreted against any of them as the draftsperson in the event of a dispute about this Agreement. 8. This ASree.Tnent represents the sole and entire agreement between the parties hereto and supersedes all prior agreements, negotiations and discussions among them with respect to the subject matter covered hereby. Any amendment to this Agreement must be in writing and signed by the authorized representatives of the parties hereto. y 9. This Agreement may be executed in counterparts, each of which when so executed shall be deemed an original, and this Agreement and all signed counterparts shall constitute one and the same instrument. 10. Tres Agreement is deemed executed on the date :first written above. 11. Any provisions or Evidence Code section 1152.5 norvithstanding, this Agreement maybe enforced by any park, hereto CI a :notion under Code of Civi Procedure section 664.6 or by any other procedure permitted by aw in the Superior Court of Marin County. 11. This Agreement, consisting of 5 pages, shall be construed and enforced in accordance with law of the State of California. SELARON POWER SIGNATURES CONTENTUED ON NEXT PAGE POWERLIT 4 TnE TO',,V OF TIBUR-N+ i Bv- Robert L. Kleinert Town Manager, Town of Tiburon le - ~1514s-- DLYON POWER APPROVED AS TO FORM. David Bowie, Esq. Attorney for Sharon and DLxon Power POWER= 5 APPROVED AS TO FORM: t~nn R. Danforth, E'sq. Town Attorney, Town of Tiburon ,,oo - 5-~2,f r- ALL-PURPOSE ACKNOWLEDGMENT F • -donow •-MEOW *-"now -MEOW •.1domw •i•"MEOW •!•i•!•!• !•~•i•!• • State of California ' ,Q ~ Z44 A ' ` " SS. County of ' 0Z 7- ~7 ' On before me, (DATE) (NOTARY) ' personally appeared SIGNER(S) ❑ personally known to me - OR- proved to me on the basis of satisfactory f • 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 f • capacity(ies), and that by his/her/their • ' signature(s) on the instrument the person(s), I I 1101 D. L. CRANE 1, or the entity upon behalf of which the • f - Comm. # 1119443 r~n~ person(s) acted, executed the instrument. • N A NOTARY PUBLIC -CALIFORNIA UJ • f , Merin County f My Comm, Expires Dec. 8, 2000 ' WITNESS my hand and official seal. • NOTARY'S SIGNATURE • OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgment to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) 9 INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUM NT t2 * `P N MBER OF AGES i ) ❑ GUARDIAN/CONSERVATOR / • ❑ OTHER: DATE OF DOCUMENT ' I SIGNER IS REPRESENTINCI: ' NAME OF PERSON(S) OR ENTITY(IES) +CXI f • vqVk_V OTHER • APA 1/94 VALLEY-SIERRA, 800-362-3369 ALL-PURPOSE ACKNOWLEDGMENT F * 0 -MEOW 0-0100-0 .01000- 0 .4990W 0 .4901mo 0 '"ENOW *10100wo .0momw 0 _14000W 0 .4400ow 0 • State of California ,,pp • ' County of SS. ' f On / -fore me, ' • (DATE) 0 (NOTARY) personally appeared CAJ eyo", • SIGNER(S) ' ❑ personally known to me - OR- 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 • I D. L. CRANE signature(s) on the instrument the person(s), ' Comm. # 1119443 ' • NOTARY PUBLIC CALIFORNIAN or the entity upon behalf of which the • Merin County } person(s) acted, executed the instrument. ' • My Comm, ixpires Dec. 8, 2000 • ` WITNESS my hand and official seal. • NOTARY'S SIGNATURE • I ' OPTIONAL INFORMATION ' ' The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgment to an unauthorized document. • ' CAPACffY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT ICJ INDIVIDUAL ❑ CORPORATE OFFICER ' TITLE OR TYPE OF DOCUMENT/", TITLE(S) ❑ PARTNER(S) • ❑ ATTORNEY-IN-FACT o2 4 (p ~eju ~X • ' ❑ TRUSTEE(S) NUMBER OF PAGES `F lS • ❑ GUARDIAN/CONSERVATOR • ' ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTIN ' NAME OF PERSON(S) OR ENTITY(IES) OTHER • • 6A44!!~%_a L*-N00W 0 -MEOW *-Gamow 0-OWNWO."Mo. 04000WO.4~0 APA 1/94 VALLEY-SIERRA, 800-362-3369 ALL-PURPOSE ACKNOWLEDGMENT • F, of California / County of //I SS. 1 • On ' 02 - G !2 before me, C06~41VE • / I I • (DATE) • ! ~I1► F0 ETH • personally appeared 1 < V I SIGNER(S) 1 personally known to me - OR- ❑ proved to me on the basis of satisfactory 1 • evidence to be the person(s) whose name(s) 1 is/are subscribed to the within instrument and • acknowledged to me that he/she/they executed • 1 the same in his/her/their authorized 1 D. L. CRANE Comm. # 1119443 to • A NOTARY PUBLIC • CALIFORNIA N Marin County My Comm. Expltd~ Dec. 9~ I000 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. WITNESS my hand and official seal. NOTARY'S SIGNATURE MONSOON OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgment to an unauthorized document. CAPACTfY CLAIMED BY SIGNER (PRINCIPAL) ❑ INDIVIDUAL © CORPORATE OFFICER Td 41V 77 Vs NG TITLE( ~ ,1 • / ❑ PARTNER(S) ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMEN~ N MBER OF GES • ❑ GUARDIAN/CONSERVATOR • ❑ OTHER: 1 I DATE OF DOCUMENT I SIGNER IS REPRESENTIN 1 • NAME OF PERSON(S) OR ENTITY(IES) 1 V - V • / • r , W 1 %_Vr y OTHER L •i•!•-MINNOW •-donsow •.14101110. •-MINNOW •i• 4Md1111W6 -411111101110 0.400mi.0 _001110W • i•-monow •-MINNOW •-MINNOW APA 1/94 VALLEY-SIERRA, 800-362-3369