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HomeMy WebLinkAboutAgr 1998-06-03 (Dixon & Sharon Power)6 1 . 3-17~ S SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE This Settlement Agreement and Mutual General Release ("Agreement") is entered into as of June 3, 1998 between the Town of Tiburon ("Town"), 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 reference. 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 ("Existing Duple)e"). These improvements are legal non-conforming uses. 2. 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, 324 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 portion of the Property would constitute a third parcel 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 May 14, 1997. At the conclusion of the May 14, 1997 hearing, 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 memorializing its findings and decision on May 28, 1997. AV 4. The Powers filed a timely appeal of the Commission's decision. The Town Council held a public hearing on this appeal on August 6, 1997. At the conclusion 6f &s hearing, 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 for writ of mandamus and complaint for declaration, relief and damages in Marin County Superior Court ("Petition"), Power v. The Town of Tiburon, et al, Case No. 172314, (Marin 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. DUPLICATE AGREEMENT The Town and the Powers, in consideration of the mutual covenants of the Agreement, hereby 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 22, 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 single-family dwelling unit. Prior to recordation of the parcel map for the subdivision approved herein, the Powers shall make such physical modifications deemed necessary 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 building. 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 garage. 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 driveway 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 ofLot 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 certificate of occupancy for the proposed Lot 3. F. Any development of Lot 3 shall comply with the requirements of the Town's Municipal Code, including, without limitation, architectural and site plan review. The 2 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 18 feet 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 Design Review Board shall have full power to impose further restrictions pursuant to the Town's 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 run with the land and be binding on the Powers' successors in interest to the Property. Violation of any conditions set forth in this Agreement shall be considered a public nuisance subject to immediate abatement and the Powers hereby waive 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 Agreement 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 any claims for attorneys' fees and costs. 3. This Agreement includes an express waiver of Civil Code section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if own by him must have materially affected his settlement with the debtor." Powers (i 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 15, 1998. The Town shall thereafter file a copy of this Agreement and the Judgment with the County Recorder. 5. The Powers shall defend, indemnify, 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 any 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. 3 6. It is understood and agreed that this is a compromise settlement agreement of disputed claims, and that the execution of this Agreement 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 Agreement 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. 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. This Agreement is deemed executed on the date first written above. 11. Any provisions of Evidence Code section 1152.5 notwithstanding, this Agreement may be enforced by any party hereto by a motion under Code of Civil Procedure section 664.6 or by any other procedure permitted by law in the Superior Court of Marin County. 12. This Agreement, consisting of 5 pages, shall be construed and enforced in accordance with law of the State of California. SHARON POWER aX&M'4Yf 0' - - aZ44 J THE TOWN OF TIBUR By: Robert L. Kleinert Town Manager, Town of Tiburon SIGNATURES CONTINUED ON NEXT PAGE POWER.LIT 4 DIXON POWER APPROVED AS TO FORM: APPROVED AS TO FORM: L' David Bowie, Esq. R. Danforth, sq. Attorney for Sharon and Dixon Power Town Attorney, Town of Tiburon POWER-LIT