HomeMy WebLinkAboutAgr 2012-04-03 (Martha Company & Town of Tiburon)AMENDMENT #3 TO
MEMORANDUM OF UNDERSTANDING
The Memorandum of Understanding entered into the 12th day of November, 2009, by
and between the Town of Tiburon and Martha Co., as amended on March 22, 2010, and June 9,
2011, is hereby amendeT'as follows:
• The termination date shown in Paragraph 10 is changed from June 30, 2012, to
December 31, 2013.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment # 3 to the
Memorandum of Understanding as of the date written below and have initialed the hand-written
changes on the attached Exhibit A.
Date:
TOWN OF TIBURON
By:'~~-~-~--
argaret A. Curran
4 own Manager
Approved as to Form:
BY:
Ann Danforth, Town Attorney
Date: 3 /a 9//.Z
MARTHA COM Y, California co tion
By:
Mark E. Reed
Secretary
Approved as to Form:
Hanson Bridgett LLP
By/:
Ma K. McEachron, Esq.
4121507.1
AMENDMENT #2 TO
MEMORANDUM OF UNDERSTANDING
The Memorandum of Understanding entered into the 12th day of November, 2009 by and
between the Town of Tilron and Martha Co., as amended on March 22, 2010, is hereby
amended as follows:
• The termination date shown in Paragraph 10 is changed from June 30, 2011, to
June 30, 2012.
.IN WITNESS WHEREOF, the parties hereto have executed this Amendment # 1 to the
Memorandum of Understanding as of the date written below and have initialed the hand-written
changes on the attached Exhibit A.
Date: TOWN OF TIBURON
By:
Ma et A. Curran
Town Manager
Approved as to Form:
BY:
Ann Danforth, Town Attorney
Date:
Approved as to Form:
Hanson Bridgett LLP
B y://, ot~~ C'V' C4--k.'_
Mary . McEachron, Esq.
MARTHA COMPANY, a Califo is corporation
By:
Mark E. Reed
. Secretary
3028403,1
AMENDMENT #1 TO
MEMORANDUM OF UNDERSTANDING
The Memorandum of Understanding entered into the 12th day of November, 2009 by and
between the Town of Tiburon and Martha Co. is hereby amended as follows:
The termination date shown in Paragraph 10 is changed from June 30, 2010, to
June 30, 2011.
Exhibit 1 to the Memorandum of Understanding, standards cost manly used on
delete the sentence, "Such trails shall be constructed to the same Such
Marin County Open Space District properties," and to substitute in its-place the sentence,
trails are intended to be serviceable single-use (pedestrian) footpaths, as commonly found on
steep hillside trails throughout Marin County."
IN WITNESS WHEREOF, the parties hereto have executed this Amendment # 1 to the
Memorandum of Understanding as of the date written below and have initialed the hand-written
changes on the attached Exhibit A.
Date: } ° TOWN OF TIBURON
By:
~garet A. Conran
Town Manager
Approved as to Form: ,
f
By.
Ann Danforth, Town Attorney
Date:
MARTHA COMP Y, a C mi r 'on
By:
Mark E. Reed
Secretary
Approved as to Form:
Hanson Bridgett LLPP
By.
MaryK. McEachron, Esq.
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is entered into this / -day of
2009 ("MOU Effective Date") by and between the Town of Tiburon
("Town") and Martba-Go., a California corporation ("Martha").
RECITALS
A. Martha owns approximately 110 acres of real property designated as Marin
Assessor Parcel No. 059-251-05 located on the Tiburon Peninsula in unincorporated Marin
County, California ("Property"), as more particularly described and depicted in Exhibit 1 hereto.
B. The County of Marin, Martha, Town, and certain other defendants have engaged
in litigation related to potential development of the Property. On December 29, 1976, a
Judgment Pursuant to Stipulation was entered into.in United States District Court for the
Northern District of California case number C 75 0125 RHS ("1976 Judgment"). On September
4, 2007, a Stipulation for Entry of Judgment Creating Timeline and Procedures for Enforcing
Judgment Entered in Martha Co. v. County of Marin, No. C 75 0125 RHS was filed in United
States District Court for the Northern District of California case number C 06 0200 SBA ("2007
Stipulation") pursuant to which a Proposed Judgment Pursuant to Stipulation was signed by the
United States District Court Judge on November 7, 2007 and filed on November 8, 2007 ("2007
Judgment"). The 1976 Judgment, 2007 Stipulation, and 2007 Judgment (collectively, the
"Martha Judgment") granted Martha certain rights to develop the Property as set forth therein.
C. Pursuant to the Martha Judgment and in accordance with the California
Environmental Quality Act (Public.Resources Code section 21000 et seq.) ("CEQA"), the
County, as lead agency, is preparing a draft Environmental Impact Report ("EIR") analyzing
various development possibilities for the Property, including the 43-unit development project
originally proposed by Martha in its 2007 Application (as that term is defined in the 2007
Stipulation) ("43 Unit Project") and a lower density alternative to Martha's proposal. As used in
this MOU, "32-Unit Lower Density Alternative" means a project alternative with a reduced
count of 32 units as described in the LDA Development Agreement attached hereto as Exhibit i
("LDA Development Agreement").
D. On July 1, 2009, the Town pre-zoned certain areas outside of the Town's
boundaries but within its sphere of influence, including the Property. Martha filed ,1 writ of
mandamus (Marin County Case No. CV 093636, "Writ of Mandate") contending, among other
things, that (i) the Mitigated Negative Declaration approved by the Town in connection therewith
called for future environmental review in order to limit Property development, and (ii) the pre-
zoning was the first step in an impermissible piecemeal approach to Property annexation. The
Town denies Martha's allegations.
E. Martha desires to develop the Property in accordance with the Martha Judgment;
the Town desires that the Property be developed at a lower density. The parties disagree whether
Martha's rights under the Martha Judgment would bind the Town if the Town were to annex the
Property.
1222869v7 2914610011
EXHIBIT A
F. The parties now desire to enter into this MOU to set forth their mutual
understandings and commitments with respect to the proposed development of the Property.
Without admitting any issue of fact or law, the parties agree that entry into this MOU is in good
faith and in the public interest, and is designed to avoid litigation between Martha and the Town
with respect to the P;pf4rty.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. corporation of Recitals and Exhibits. The recitals set forth above, and all
defined terms set forth in such recitals and in the introductory paragraph preceding the recitals,
and the Exhibit attached hereto are hereby incorporated into this MOU as though set forth.in full.
2. 32-Unit Lower Density Alternative.
a. The parties acknowledge that the scope of any proposed development on the
Property would-be dependent on the findings in an EIR, and certification of the EIR by the
County.
b. Should changes be made by the County to the 32-Unit Lower Density Alternative
which are unacceptable to the Town or to Martha, including without limitation changes in the
number of lots, changes in the maximum permitted square footage of homes and ancillary
structures, reconfiguration of lots or imposition of unexpected fees or mitigations, neither the
Town nor Martha will be under any obligation to proceed with commitments hereunder, except
that the parties will meet and confer in good faith for up to 90 days to reach a resolution
acceptable to both parties. In such event, Martha and Town each commit in good faith to work
together with each other and the County towards a mutually agreeable development alternative
substantially consistent with the 32-Unit Lower Density Alternative. Nothing contained in the
LDA Development Agreement shall be construed as limiting the generality of the foregoing.
3. Martha Support of 32-Unit Lower Density Alternative.
a. Martha, on behalf of itself and its shareholders and its and their heirs, executors,
successors and assigns, agrees to accept the 32-Unit Lower Density Alternative as described in
the LDA.Development Agreement, and to provide the County and Town with a written waiver,
in form reasonably acceptable to County and Town, of all rights to approval of any project which
would involve a subdivision of more than 32 lots or result in a development of greater height,
bulk, square footage size or floor area ratio than the 32-Unit Lower Density Alternative, within
10 days after all of the following occur:
i) the 32-Unit Lower Density Alternative as described in the LDA Development
Agreement is found by the County of Marin to be an environmentally prudent
course of action; -and
ii) the County joins with Martha in petitioning the United States District Court for the
Northern District of California to enter an amended judgment incorporating the
Page 2
12228690 29146/0011
32-Unit Lower Density Alternative as described in the LDA Development
Agreement, and the Town appears in such proceeding in support; and
iii) . the County in fact enters into a development agreement with Martha substantially
in the fc 1m attached hereto as Exhibit 1, and such development agreement
becomes effective..
Martha agrees to take all actions on its part necessary to ensure that the foregoing three
events in fact occur, including without limitation providing the County with the necessary
information to evaluate the 32-Unit Lower Density Alternative for CEQA purposes, originating
or joining in a petition with the County for an amended judgment, and executing a development
agreement with the County in substantially the form attached as Exhibit 1, provided however that
Martha need not incur any costs in connection with a referendum campaign, if one should be
necessary.
b. Martha shall cooperate and negotiate in good faith with the County and Town for
reasonable modifications to the 32-Unit Lower Density Alternative to accommodate changes and
mitigation measures identified in the EIR.
C. Martha. shall support the Town's efforts as set forth in MOU section 4.
d. In the event that, through no fault of Town, the procedures contemplated herein
cannot reasonably be accomplished within the time deadline set under the Martha Judgment,
Martha will grant the County in writing a reasonable extension of such deadline as necessary to
conclude these procedures.
4. Town Support of Lower.Density Alternative Project. Subject to Town concluding
that the 32-Unit Lower Density Alternative will not result in conditions dangerous to health and
safety, as provided in section 5 below, the Town agrees to support approval of the LDA
Development Agreement attached hereto as Exhibit 1. Such support would be in the form of a
Town resolution (adopted concurrent with approval of this MOLT) urging the County to:
a. Evaluate the 32-Unit Lower Density Alternative as a project alternative in the
draft EIR.
b. If the 32-Unit Lower Density Alternative is found environmentally epqual or
superior to the 43 Unit Project, approve the master plan, tentative subdivision map, and precise
development plan applications based on the 32-Unit Lower Density Alternative and enter into
the LDA Development Agreement with Martha for the Lower Density Alternative substantially
the form attached hereto as Exhibit 1.
C. Require as a condition of the LDA Development Agreement the entry of a
substitute judgment ("Substitute Judgment") by the federal court under its continuing
jurisdiction, said Substitute Judgment superseding the Martha Judgment and incorporating:
(i) the terms of the LDA Development Agreement for the 32-Unit Lower Density
Alternative;
Page 3
12228690 29146/0011
(ii) Martha's acknowledgment that the Martha Judgment is superseded and that
Substitute Judgment will subsequently control future development rights and
obligations with respect to the Property;
(iii) County's-acknowledgement that Martha's rights under LDA Development
Agreerfieni create no health or safety issues;
(iv) Martha's dismissal with prejudice of the Writ of Mandate concurrent with full
execution of the LDA Development Agreement, and
(v) provisions to ensure clarity and enforcement so that the Town and Martha receive
the benefit of this MOU, and the Town, Martha, and County receive the benefit of
the Substitute Judgment and the LDA Development Agreement.
5. Review of Health and Safety Issues. Town agrees that it will review the County
EIR when certified in order to determine whether there are any health and safety constraints on
the 32-Unit Lower Density Alternative. Town further agrees to conduct all other reviews,
studies, and analyses necessary to satisfy itself that implementation of the 32-Unit Lower
Density Alternative, including required mitigation measures, will not result in conditions
dangerous to health and safety. The Town reserves full and complete discretion with respect to
the conduct of such review and the making of such findings. Provided the Town reaches this
conclusion after its own independent review, Town hereby agrees to execute the certification
attached to the LDA Development Agreement as Exhibit E. If the Town is unable to reach the
conclusion that the 32-Unit Lower Density Alternative will not result in conditions. dangerous to
health and safety, then this MOU shall automatically terminate and thereafter both parties shall
be released from their obligations hereunder.
6. Agreement to Term of Development A eement. The Town hereby agrees that, if
a Development Agreement is' entered into between Martha and the County in substantially the
form attached hereto as Exhibit 1, then such agreement may have a term of fifteen (15) years
after annexation, or the then-remaining duration of such LDA Development Agreement,
whichever is shorter, and the Town will execute a consent to such duration in substantially the
form attached'as Exhibit F to the LDA Development Agreement.
7. Annexation into Sanitary District. To the extent consistent with the findings of
the EK the Town will support annexation of the Property into.the public sanitary district, or, in
its discretion, the Town will enter into a deferred annexation agreement to permit annexation of
the Property into the public sanitary district prior to annexation into the Town.
8. Slav of Writ of Mandate Litigation. The parties agree to stay the Writ of Mandate
litigation during the term of this MOU, and shall jointly submit to the court any necessary papers
in that regard, including a request for a CCP § 1494.5(g) stay.
9. Property Annexation.
a. Martha acknowledges that the Town has made no commitments as to whether or
not the Town will annex the Property.
Page 4
1222869v7 29146/0011
b. Subject to satisfaction of the conditions precedent is section 3.a.(i) - (iii) above,
and upon request of Town, Martha will support annexation of the Property by the Town,'
including without limitation by supporting governmentally required submissions necessary or
desirable to accomplish such annexation and, if requested by Town, attendance and expressed
public support of the Property annexation.
1
C. Town acknowledges that annexation of the Property may effectively shorten
Martha's desired 20 year term of the LDA Development Agreement; as such, the Town would
abstain from Property annexation until the earlier of (i) recordation of the first final map for the
Lower Density Alternative, or (ii) five (5) years after the effective date of the LDA Development
Agreement, or (iii) the effective date of any subsequent development agreement entered into
between the Town and Martha.
10. Expiration: Termination; Periodic Review. If the LDA Development Agr=enL_--,;,
has not been finalized, approved and fully executed by County and Martha by or jone 3 9, such other date as mutually agreed in writing by the parties ("Outside Date"), this MOU shall
automatically terminate and be of no further force or effect, and neither party shall have any
further obligations hereunder. If (a) the EIR is not certified, (b) the 32-Unit Lower Density
Alternative is not found environmentally equal or superior to the 43 Unit Project and the parties
cannot agree to a development alternative substantially consistent with the 32-Unit Lower
Density Alternative, or (c) a development agreement other than the LDA Development
Agreement is executed without the Town's consent, then the parties' obligations under this MOU f
shall terminate as of the earliest date of any such event, as if such date were the Outside Date.
Notwithstanding the foregoing, the parties may amend this MOU (including to extend or
J u r-L e. _3 0
terminate the term hereof) upon mutual written agreement, and shall review this MOU on an as-
a o
needed basis, but at least every six (6) months, to consider whether any amendments are
necessary or desirable.
11
Notices
All
ti
i
d
e
'
'
.
.
no
ces requ
re
und
r this MOU shall be made in
writing and sent
to the parties at their respective addresses specified below or to such other address as a party may
designate by written notice delivered to the other parties in accordance with this section 1 I . All
such notices shall be sent by: (a) personal delivery, in which case notice is effective upon
delivery; (b) overnight courier, in which case notice shall be deemed delivered upon receipt, as
evidenced by a record of delivery; or (c) facsimile transmission, in which case notice shall be
lecembt r 31)
deemed delivered upon transmittal, as evidenced by a transmission report reflecting the accurate
a O 3
transmission thereof, provided that a duplicate copy of the faxed notice is promptly delivered by
d S
i
te
Un
tates mail (first class with postage prepaid). Any notice given by facsimile shall be .
considered to have been received on the next business day if it is received after 5:00 p.m.
0
California time or on a non-business day.
_4
Town: Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Attention: Town Manager
Telephone: (415) 435-7373
Facsimile: (415) 435-2438
Page 5
1222869x7 29146/0011
with a copy to: Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Attention: Town Attorney
Telephone: (415) 435-7373
Facsimile: (415) 435-2438
Martha: Martha Co.
405 Via Del Norte, Suite D
La Jolla, CA 92037
Attention: John W. Reed
Telephone: (858) 459-3388
Facsimile: (858) 459-3380
with a copy to: Hanson Bridgett LLP
80 E. Sir Francis Drake Boulevard, Suite 3E
Larkspur, CA 94939
Attention: Mary K. McEachron, Esq.
Telephone: (415) 925-8400
Facsimile: (415) 925-8409
12. Applicable Laws. The parties shall comply with all applicable statutes,
ordinances, laws, rules, regulations and requirements under Federal, State, County, Town and
other applicable authority with respect to implementation of this MOU.
13. Limitations of the MOU. While this MOU has been prepared in order to set forth
the parties' mutual understandings and commitments with respect to the proposed development
of the Lower Density Alternative on the Property pursuant to the LDA Development Agreement
between County and Martha, Martha acknowledges and agrees that, by execution of this MOU,
the Town is not committing to or agreeing to annex the Property, assume any development
agreement, or undertake any other acts or•activities or issue any approvals requiring the
subsequent independent exercise of discretion by the Town Council, Planning Commission or
Design Review Board, other than as specifically set forth and agreed under this MOU. Nothing
in this MOU shall be deemed to require the Town to initiate the annexation process for the
Property.
14. Assignment. This MOU shall not be-assigned by any party
15. Governing Law: Venue. The interpretation, validity and enforcement of this
MOU shall be governed by and construed under the laws of the State of California, excluding its
conflict of laws rules.
16. Authority to Enter into MOU. The individuals executing this MOU on behalf of
the Town and. Martha each represent and warrant that they have the right, power, legal capacity
and authority to enter into and to execute this MOU.
Page 6
1222869v7 29146/0011
17. Severability. If any provision of this MOU or the application of any such
provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable
to any extent, the remaining provisions of this MOU and the application thereof shall remain in
full force and effect and shall not be affected, impaired or invalidated.
18. InterpVfation. As used in this MOU, masculine, feminine or neuter gender and
the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation." This MOU shall be interpreted as though prepared jointly by all parties.
This MOU may only be amended by mutual written agreement of the parties. No waiver by
Town of any breach or default of any provision of this MOU or any amendment shall be deemed
a waiver of any other provision hereof or of any subsequent breach or default of the same or any
other provision. Nothing contained herein nor any acts of the parties hereto shall be deemed or
construed by the parties hereto, nor by any third party, as creating the relationship of principal
and agent or of partnership or of joint venture by the parties hereto.
19. Entire Agreement; Counterparts. This MOU (including the exhibit attached
hereto) contains the entire understanding of the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings, oral and written,
between the parties with respect to such subject matter. This MOU may be executed in multiple
counterparts, each of which shall be an original and all of which together shall constitute one
agreement.
20. Reirnb„ursement of Fees and Costs. Upon execution of the LDA Development
Agreement, Martha will pay Town the amount of seventeen *thousand five hundred dollars
($17,500) to reimburse Town for a portion of its processing and legal fees in connection with the
negotiation and drafting of the MOU, including form of LDA Development Agreement. - Fees
and costs reimbursable to the Town pursuant to this MOU shall be dub and payable within fifteen
(15) days after the County approves the LDA Development Agreement. Any unpaid fees and
costs shall bear interest at the lower of 1.0% per annum or the highest rate allowable by
applicable law until paid. If the LDA Development Agreement is not approved, Martha shall
have no obligation to reimburse Town therefor.
IN WITNESS WHEREOF, the parties hereto have executed this MOU as of the MOU
Effective Date.
[SIGNATURES ON FOLLOWING PAGE]
Page 7
1222869v7 29146/0011
TOWN OF TIBURON
By:
garet A. Curran
Town Manager
Approved as to Form:
By:
Ann Danforth, Town Attorney
Approved as to Form:
Hanson Bridgett LLP
By:
Mary. McEachron, Esq.
MARTHA CO., ifo i rp r
By:
Mark E. Reed
Secretary
Page 8
1222869v7 29146/0011
EXHIBIT "1"
RECORDING REe76TED BY
AND WHEN RECORDED RETURN TO:
Marin County Community Development Agency
3501 Civic Center Drive #308
- San Rafael, CA 94903--4157
Attn: Community Development Agency Director
Space Above This Line Reserved for Recorder's Use
Exempt from Recording Fee Per Government Code Section 273
DEVELOPMENT AGREEMENT BY AND BETWEEN
THE COUNTY OF MARIN AND
MARTHA CO.
WITH RESPECT TO EASTON POINT
Effective Date:
TABLE OF CONTENTS
Page -
RECITALS ..................................................................................................................'I
ARTICLE I REL'AT`IONSHIP TO 2010 JUDGMENT..
Section 1.1 2010 Judgment ..................................................................................5
Section 1.2 Owner's Relinquishment of Prior Claims ............................................5
Section 1.3 Acknowledgement of Rights of Owner. ..............................................5
Section 1.4 Entitlement to Full Benefit and Term of Agreement ............................6
Section 1.5 Condition Precedent to Termination or Modification Pursuant
to Gov't Code § 65865.1 ....................................................................6
Section 1.6 Condition Precedent to Termination, Modification or
Suspension for Health and Safety or Other Reasons .........................6
Section 1.7 Representations Concerning Health and Safety ................................7
ARTICLE 11 PROPERTY AND TERM .........................................................................7
Section 2.1
Property Subject to Agreement ...........................................................7
Section 2.2
Term of Agreement ........7
Section 2.3
Extensions of Term ...........................................................................8
Section 2.4
Effect of Termination of Agreement .................................................10
ARTICLE III REALIZATION OF BENEFITS BY THE COUNTY .................:...........:.17
Section 3.1 Reduction in Density ..............................................:.........................11
Section 3.2 Dedication of Land for Public Purposes ...........................................11
Section 3.3 Improvement of Pedestrian Access to Open Space 12
Section 3.4 Infrastructure and Street Improvements 12
Section 3.5 Conditions, Covenants & Restrictions ..............................................13
ARTICLE IV PE
Section 4.1
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Section 4.6
Section 4.7
!RMITTED DEVELOPMENT .............................................................13
13
Permitted Use of Property
-Residential Lots ...............................................................................13
Dedicated Open Space ...................................................................18
20
Water Tank
Sewers ................................................................................:...........21
Roads and Driveways ......................................................................21
Staging and Stockpiling ...........................................................22
TABLE OF CONTENTS
(continued)
Page
ARTICLE V VESTING ...............................................................................................22
Section 5.1--
= Vesting
22
Section 5.2
Vested Elements
23
Section 5.3
Development Standards
23
Section 5.4
Fees and Mitigations for Subdivision Improvements
24
Section 5.5
Foes and Mitigations for Individual Home Construction
26
Section 5.6
Phasing of Maps Permitted
27
Section 5.7
Timing and Duration of Phased Development
27
Section 5.8
Compliance with Other Laws
Section 5.9
Building Requirements
29
.
Section 5.10
.
Life Safety Matters
29
Section 5.11
Procedural Matters
29
Section 5.12
Permits and Approvals from Other Agencies
29
ARTICLE Vi SUBSEQUENT APPROVALS ..........:...................................................30
Section 6.1 Subsequent Approvals ....................................................................30
Section 6.2 Processing Applications for Subsequent Approvals....... ..................31
Section 6.3 Additional CEQA Processing ...........................................................31
ARTICLE VIi OBLIGATIONS OF THE PARTIES .......................................................32
Section 7.1 Owner ................................................................................................32
Section 7.2 County ..............................................................35
ARTICLE VIII DEFAULT AND REMEDIES......... ......................................................36
Section 8.1 Notice of Breach / Meet and Confer .................................................36
Section 8.2 Request for Notice........ ...................................................4 37
Section 8.3 Remedies for Breach ........................................................................37
ARTICLE IX ANNUAL REVIEWS AND AMENDMENTS 41
Section 9.1 Annual Review ........:.......................................................................41
Section 9.2 Procedures to Amend................ ......................................................42
Section 9.3 insubstantial Amendments ...............................................................42
Section 9.4 Amendments to Development Agreement Legislation .....................42
Section 9.5 Amendment of Existing Approvals ...:...........43
TABLE OF CONTENTS
(continued)
Page
ARTICLE X TRANSFERS AND ASSIGNMENTS........... ..........................................43
Town as Successor-in-interest to County 43
Section 14.1-
:...44
Section 10.2 Right to Assign I
Section 10.3 Release Upon Transfer ...................................................................44
Section 10.4 Covenants Run with the Land .................45
Section 10.5 Future Lot Owners and HOA as'Third-Party Beneficiaries ...............45
ARTICLE XI MORTGAGE PROTECTION, CERTAIN RIGHTS OF CURE ...............46
Section 11.1 Mortgage Protection .....................:..................................................46
Section 11.2 Mortgagee Not Obligated .................................................................46
Section 11.3 Notice of Default to Mortgagee .........................................................46
ARTICLE Xli GENERAL PROVISIONS ......................................................................47
Section 12.1
Common Sense Interpretation .........................................................47
Section 12.2
Private Undertaking; Indemnification
...........................................47
Section 12.3
No Joint Venture or Partnership
48
Section 12.4
Notices, Demands and Communications between the Parties 48
Section 12.5
Waivers
...........................................49
Section 12.6
County Approvals and Actions
...........................................49
Section 12.7
Severability
...........................................49
Section 12.8
Section Headings
.............49
Section 12.9
Entire Agreement
...........................................50
Section 12.10
Estoppel Certificate
...........................................50
Section 12.11
Applicable Law
..............50
Section 12.12
Consistency with County Ordinance
...........................................51
Section 12.13
Recordation
.......#..................51
Section 12.14
Definitions
...........................................51
DEVELOPMENT AGREEMENT BY AND BETWEEN
THE COUNTY OF MARIN
AND MARTHA CO.
WITH RESPECT TO EASTON POINT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of the
day of 2010, by and between the COUNTY OF MARIN, a governmental
entity organized and existing as a county under the laws of the State of California ("County"),
and MARTHA CO., a California corporation ("Owner").
RECITALS
The following recitals are a substantive part of this Agreement and incorporated herein
by this reference:
A. In order to diminish the waste of economic resources and promote certainty in
construction of development projects, the Legislature of the State of California enacted Sections
65864 et seq. of the Government Code (the "Development Agreement Legislation"), which
authorizes the. County and an applicant for a development project to enter into a development
agreement, establishing certain rights in the property which is the subject of the project
application.
B. Owner is the owner in fee of approximately one-hundred-ten (110) acres of real
property on paradise-Drive in unincorporated Marin County adjacent to the Town of Tiburon,
which property is known as Easton Point, Marin Assessor's Parcel No. 059-251-05, and
described in the legal description attached as Exhibit A and the map attachedr as Exhibit B
("Property").
C. On December 29, 1976, judgment was entered in federal court requiring the
County to approve a minimum of forty-three (43) homes on minimum half-acre Jots on the
Property ("1976 Judgment°). On November 8, 2007, a second federal court judgment ("2007
Judgment") was entered creating a binding timeline and procedures for enforcing the 1976
Judgment.
EXHIBIT a TO MEMORANDUM OF UNDERSTANDING
11/12/09
1
D. During 2008, Owner filed an application with County for approval of forty-three
homes, and in accord with its obligations under the 2007 Judgment, County has processed such
application. Pursuant t9 the California Environmental Quality Act ("CEQA"), on
2010, County certified an Environmental Impact Report ("EIR") with respect to such application.
Such Elk determined that no unmitigatable health or safety impact. precluded development of
forty-three homes on this site. Therefore, pursuant to the terms of the 2007 Judgment, the
County would be required to approve forty-three homes on this site absent the Owner's written
acceptance of fewer homes.
E. On October 26, 2009, by Resolution No. , the Town of Tiburon ("Town")
had proposed that, in conducting environmental review for the Easton Point proposal, the
County should also evaluate 'the, 32-Unit Lower Density Alternative, the plan for which is
attached hereto as Exhibit C, incorporated herein by reference, and further described in
ARTICLE IV, infra ("32-Unit I-DA ° or "Project").
F. On October 26, 2009, the Town, by Resolution No.. authorized a
Memorandum of Understanding ("MOU") with Owner for the purpose of restricting Owner's
development rights to those described in the 32-Unit LDA, provided that such alternative was
found to be environmentally equal or superior-to the pending forty-three unit proposal. Pursuant
to such MOU and subject to the completion of CECQA review and adoption of a binding
development agreement - Owner agreed to limit future development of the Property to the 32-
Unit LDA. M
G. Resolution No. of the Town of Tiburon also urged that, in the event the
County determined the 32-Unit LDA to be environmentally equal or superior to the pending 43-
unit application, the County should enter into a development agreement with Owner for the
purpose of carrying out the intent and purposes of the MOU.
H. In certifying the Easton Point EIR on 2010, the County in fact
determined that the 32-Unit LDA was environmentally superior to the pending application for
2
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
forty-three homes. The County has therefore determined that, by entering into this
Development Agreement, it is not-only conforming to the October 2009 recommendation of the
Town of Tiburon, but': also implementing an environmentally superior alternative while
simultaneously complying with its obligations under the 1976 and 2007 Judgments.
For the reasons stated herein, among others, County and Owner have
determined that a development agreement is appropriate for this Project. This Agreement will
eliminate uncertainty in planning for and securing orderly development of the Property and will
otherwise achieve the goals and purposes for which the Development Agreement Legislation
was enacted.
J. The terms and conditions of this Agreement have undergone extensive review by
County and Tiburon Staff, the Board of Supervisors, and the Tiburon Town Council at publicly-
noticed meetings and have been found to be fair, just, and reasonable, especially in light of
Owner's pre-existing rights under the 1976 and 2007 Judgments.
K. County has given notice of its -intention to adopt this Agreement, has conducted
public hearings thereon pursuant to Government Code Section 65867, and the Board of
Supervisors hereby finds that:
(1) The provisions of this Agreement. and its purposes are consistent with the
mandatory goals, policies, and standards specified in the Countywide Plan and
compatible with the uses authorized in, and the regulations prescribed for, the
land -use district in which the real property is located.
(2) The provisions of this Agreement and its purposes are consistent with the
precatory goals, -policies, and standards specked in the Countywidt Plan to the
greatest extent legally feasible under the 1976 and 2007 Judgments.
(3) This Agreement would facilitate important economic, social,
environmental and planning goals of the County and the Town and' is in
conformity with public convenience, general welfare and good land use practice.
(4) The Owner has made commitments to a high standard of quality and has
agreed to development limitations beyond those permitted under the 1976 and
2007 Judgments, and therefore beyond the limitations which the County could
otherwise legally demand.
3
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
(5) This Agreement complies in all respects with the County's Resolution No.
Establishing Procedures and Requirements for the Consideration of
Development Agreements Under Government Code Sections 65864-65869.5
(the "Development Agreement Resolution").
(6) ----fhe subdivision to which this Agreement pertains is not within -the
definition of "Subdivision" found in Government Code § 66473.7.
(7) This Agreement will not be detrimental to health, safety and general
welfare.
L. The Project, as described at Exhibit C and in ARTICLE IV, infra, was the subject
of extensive alternatives analysis in an EIR prepared and adopted in accordance with CEQA.
The Board of Supervisors has found that there is no significant change in the Project or in the
environmental setting in which the Project is to be undertaken, nor have any material facts been
ascertained with respect to the Project or its environmental setting, since certification of the EIR
which would require further study or analysis under CEQA. Accordingly, the Board of
Supervisors finds that this Agreement complies with the requirements of CEQA.
M. The following development approvals, entitlements, policies and findings have
been adopted by the County and applied to the Project:
(1) The "Rezoning," as approved by Ordinance No. on
2010;
(2) The "Master Plan" (MP 09-2), as approved by Resolution No. on
2010;
(3) The "Tentative Subdivision Map" (SD 09-1), as approved by Resolution
No. on , 2010;
(4) The "Precise Development Plan" (DP 09-4), as approvedNby Resolution
No. on , 2010;
(5) Approval of "Exceptions- to Subdivision Standards," as adopted by
Resolution No. on , 2010; and
(6) Resolution No. on 2010, certifying the.
Environmental . Impact Report, adopting . a Statement of Overriding
Considerations, and adopting a Mitigation Monitoring Program.
The approvals and development policies described in subparagraphs M(1)-through M(6) above
shall be collectively referred to herein as the "Existing Approvals."
4
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12109
N. . On , 2010, the County adopted its Ordinance No. approving this
Agreement, and such Ordinance thereafter became effective on _ 2010 (the
"Effective Date").
NOW, THEREFORE, County and Owner agree as follows:
ARTICLE 1
RELATIONSHIP TO 2010 JUDGMENT
Section 1.1 2010 Judgment. On 2010, Owner and County petitioned
the United States District Court for the Northern District of California -.pursuant to its continuing
jurisdiction under the 2007 Judgment to enter a new judgment. superseding the 1976 and
2007 Judgments and incorporating instead all terms and conditions of this Development
Agreement. The Town appeared in those proceedings to support entry of such judgment. The
court having entered a superseding judgment on 2010 ("2010 Judgment,"
attached hereto as Exhibit Q), the terms and conditions of this Agreement shall henceforth
govern the rights and obligations of the Owner, the County, and the Town concerning the
Property. It is the intent of the Owner, the County, and the Town that such accord shall now
fully and finally resolve all disputes, disagreements, litigation, and.threats of litigation among
them concerning future uses of the Property.
Section 1.2 Owner's Relinquishment of Prior Claims. Owner irrevocably relinquishes
all right and claim to construct more than the thirty-two units described herein or to construct
such units on terms materially different from those described in ARTICLE IV, infra.
w
Section.1.3 Acknowledgement of Rights of Owner. In exchange for Owner's
relinquishment of the right to construct the forty-three units otherwise permitted under the 1976
and 2007 Judgments, County, by requesting the court to enter its 2010 Judgment, and Town, by
supporting said request, have acknowledged the right of Owner to. construction of the thirty-two
unit Project described herein.
5
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
IIM2109
Section 1.4 Entitlement to Full Benefit and Term of Agreement. Owner shall have the
full term of,protection afforded by-this Agreement, and no technicality, mistake, or inadvertency
will be used to deny Owner the full twenty years (or fifteen years after annexation) of protection
so afforded. To this end the County (and upon annexation, the Town) shall work with Owner to
ensure that any perceived breach or default is promptly resolved, and extensions occur as
scheduled, in the absence of a finding by United States District Court for the Northern District of
California that termination of the. Agreement is warranted under Section 8.3(b), .'infra, by reason
of a default on Owner's part which is continuing and unremediated despite a prior directive of
such court as described below in Sections 1.5 and 1.6.
Section 1.5 Condition Precedent to Termination or Modification Pursuant to Gov't
Code § 65865.1. Prior to termination or modification of this Agreement pursuant to Government
Code § 65865.1, County (or upon annexation, Town) shall petition the United States District
Court for the Northern District of California - pursuant to its continuing jurisdiction under the
2010 Judgment - for a resolution of any dispute between itself and Owner concerning
compliance with this Agreement and shall subsequent to such ruling afford Owner a reasonable
opportunity to bring itself into'conformity with the ruling of the court.
Section 1.6 Condition Precedent to Termination Modification or $uspension for
Health and Safety or Other Reasons_ Prior to termination,. modification, or suspension of this
Agreement for any reason other than that described in Section 1.55, supra,, including for
reasons described in Gov't Code § 65865.3, County (or upon annexation, Towq) shall petition
the United States District Court for the Northern District of California - pursuant to.its continuing
jurisdiction under the 2010 Judgment - for a determination of whether such health and safety
issues or other reasons permitted by law ' for modification or termination of a development
agreement can feasibly be addressed by means which do not deprive Owner of the benefit of
this Agreement. The parties shall work cooperatively to implement any resultant directive of the
court.
6
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/0'9
Section 1.7 Representations Concerning Health and Safety. County represents that it
has reviewed the EIR analysis for the 32-Unit LDA and has satisfied itself that implementation of
such alternative, including required mitigation measures, will not result in conditions dangerous
to health and safety. In reaching this conclusion, County has relied as well on the
representations of the Town of Tiburon, attached hereto as Exhibit E and incorporated herein by
reference, that the Town also has reviewed the EIR analysis for the 32-Unit LDA and has
conducted all reviews, studies, and analyses necessary to satisfy itself that implementation of
the 32-Unit LDA described herein, including required mitigation measures, will not result in
conditions dangerous to health and safety.
ARTICLE 11
PROPERTY AND TERM
Section.2.1 Property Subiect to Agreement. All of Owner's Property described and
depicted at Exhibits A and B shall be subject to this Agreement.
Section 2.2 -Term of Agreement. The term of this Agreement shall commence upon .
its Effective Date and shall continue in full force and effect until the expiration date determined
in accordance with this Section 2.2, except as otherwise provided in Section 2.3 and ARTICLE
Vill.
(a) Initial Term. The initial term of this Agreement shall extend through the
tenth anniversary date of its Effective Date.
(b) Two 5-Year Extensions. Provided that Owner is not in P continuing,
unremediated default under the terms of this Agreement that it has failed to remedy despite the
proceedings described at Sections 1.4 to 1.5 and ARTICLE Vil 1, infra, at the expiration of the
initial term, or the first extended term, as the case may be, then the term of this Agreement shall
be extended as provided in this subsection (b). The first such extension shall extend the term of
this Agreement through the fifteenth anniversary of its Effective Date, the second such
extension, shall extend the term of this Agreement through the twentieth anniversary of its
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Effective Date. If the first extension does not commence, the second extension shall
automatically terminate.
(c) Notice and Cure of Default with Respect'to Extensions. Within one month
following the 9th and 14th Annual Reviews held pursuant to Section 9.1, infra, County. shall use
the procedure described in Section 8.1, infra, to notify Owner of any event of default which
would justify denial of an extension under Section 2.2(b). Such Notice of Breach shall inform
Owner of all steps required to bring itself into compliance with this Agreement. Upon receipt of
evidence that such default has been cured, County will provide Owner with a written statement
that such default has been cured and the Agreement will be extended according to its terms. If
the parties disagree as to whether a default has occurred that would warrant denial of an
extension, or if the parties disagree as to the steps necessary to cure such default, the parties
shall meet and confer, and otherwise pursue the means of resolution set forth in Section 8.3,
infra, so that defaults can be timely cured prior to commencement of the extension term and
extensions granted in the ordinary course.
(d) Effect of Annexation. In, accord with the Town of Tiiburon's written
consent, attached hereto as Exhibit F and incorporated herein by reference, if the Property or
any portion thereof is annexed into the Town of Tiburon, then the remaining tern of this
Agreement as it applies to any portion of the Property annexed into Tiburon shall be the earlier
of: (i) the remaining duration of this Agreement, as described in Section 2.2(a)-(c),, supra; or (ii)
fifteen (15) years from the effective date of annexation. If Section 2.2(d)(ii) becomes applicable,
then Section 2.2(a)-(c) shall continue to apply according to their terms, but only through the
fifteenth anniversary of the effective date of annexation.
Section 2.3 Extensions of Term.
(a) Extensions of Term Due to Moratoria. While this Section 2.3(a)
addresses extensions of term *of the Agreement in the event of moratoria, nothing in this Section
8
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
2.3 is intended to confer on the County or any related agency any right to impose any such
moratoria or interruption, except as otherwise expressly provided herein.
For purposes of this section, a development moratorium includes
a water or sewer moratorium, as well as other actions of public agencies that regulate land use,
development, or the provision of services to the Property, including the County, which thereafter
prevents, prohibits, or delays construction or occupancy or the approval of an entitlement
required for the Project ("Project Approval"). A development moratorium shall also be deemed
to exist for purposes of this section for any period of time during which a condition imposed by
the County could not be satisfied because the condition was one that, by its nature,
necessitated action by County, and the County either did not take the necessary action or by its
own action or inaction was prevented or delayed in taking the necessary action.
(ii) ' If Owner believes that any development moratorium would delay
construction or occupancy, or receipt of a Project Approval, or performance of a condition that
the County imposed in the Existing Approvals or any subsequent permit, it shall notify the
County in writing. During any development moratorium that applies to the Project and could
reasonably be expected to postpone the construction of improvements at the Project, the
running of the term of this Agreement shall be suspended without further act of the parties. At
the end of such moratorium, the. term of this Agreement shall recommence to run. All date
references in this Agreement, such as references to "fifteen (15) years from the effective date of
annexation" or to the "9th and 14th Annual Reviews," shall be adjusted accordingly!
(iii) In the event of a moratorium which lasts more than twelve (12)'
years: It is the intent of the parties that Owner be "credited° with only twelve (12) years of
suspension due to any single moratorium. Therefore, once the running of the term of this
Agreement recommences after such moratorium, the remaining term shall be adjusted in accord
with this intent.
9
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
(b) Extension of Term Due to Uncontrollable Events. if, during the final five
years of the term *of this Agreement, an "Uncontrollable Event" occurs or, continues which
interferes with, Project completion, then the term of this Agreement shall be automatically
extended for the same period as the duration of the Uncontrollable Event, but not more than two
years, provided that Owner sends to County a notice claiming such extension within sixty (60)
days of the commencement of the Uncontrollable Event or two years prior to the expected
termination date of this Agreement, whichever is later. An "Uncontrollable Event" must be one
which in fact interferes with the ability to continue the Project and is limited to the following: war;
insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of
the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental
restrictions or priority; litigation; unusually severe weather; acts or omissions of County; acts or
failures to act of any other public or governmental agency or entity. Adverse changes in
economic conditions, in.market conditions or demand, or in ability to obtain financing shall not
constitute Uncontrollable Events.
(c) Other Extensions. Except as otherwise specifically provided in Sections
2.2 and 2.3(a) and (b), any further extension of the term of this Agreement shall require the
approval of the County Board of Supervisors, which may be given or withheld in its sole
discretion.
Section 2.4 Effect of Termination of Agreement. Notwithstanding the termination of
this Agreement according to its terms: w
(a) Subdivision Lots. With respect to each of the thirty-one subdivision lots
shown on Exhibit C hereto ("Subdivision Lots"), so long as both (i) conduits intended to provide
water, sewer, and electric service and (ii) road paving have been installed to the lot line of such
Subdivision Lot prior to the termination of this Agreement, then the owner of such Subdivision
Lot shall retain a vested right to construct a home on such site in compliance with the terms of
Section 42(g), infra, for a period of thirty (30) years from the Effective Date of this Agreement.
10
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
(b) Remainder Lot. The owner of the remainder lot shown on Exhibit C
hereto ("Remainder Lot") shall continue to have a vested right to construct a home on such site
in compliance with he--terms of Section 4.2(g), infra, for a period of thirty (30) years from the
Effective Date of this Agreement.
(c) Indemnification Provisions. Owner's agreement to indemnify the County
pursuant to Sections 4.3(b.)(vii) and 12.2, infra, shall survive the termination of this Agreement.
ARTICLE III
REALIZATION OF BENEFITS BY THE COUNTY
Section 3.1 Reduction in Density. As consideration for this Agreement, Owner has
agreed to accept a reduction in density from the forty-three (43) units otherwise required to be
approved pursuant to the 1976 and 2007 Judgments to the thirty-two (32) units described
herein.
Section 3.2 Dedication of Land for Public Purposes. As further consideration for this
Agreement, Owner shall make an irrevocable offer to dedicate approximately fifty-nine (59
acres for open space purposes in the configuration shown -at Exhibit C, but with the precise
acreage dedicated to open space depending on the final record-of-survey acreage of -the
Property and the final size of Parcel C. This dedication is in excess of the required dedication of
48% of the Property under the 1976 and 2007 Judgments. Owner will make an irrevocable offer
to dedicate and convey for public purposes the lands shown as Parcels A, B, and C on Exhibit C
at the time of recordation of the first final map for Easton Point. Subject to the reservation of
rights and easements over such Parcels described in Section 4.3, infra, Owner agrees to
convey Parcels A and B for. open space purposes to the Marin County Open Space District or
such other public or nonprofit conservation / open space entity as designated by the County in
consultation with the Town of Tiburon. Any public open space dedication accepted by the
County or the Marin County Open Space District shall be and remain obligations of such entity,
and shall not pass to Town by virtue of Property annexation: provided, however, that Town and
11
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
County may separately negotiate for such public open space to pass to Town upon mutually
agreeable terms and conditions, which shall include ongoing County funding for costs
associated with ownerstWo thereof, including for repair, maintenance, and insurance.
Section 3.3 Improvement of Pedestrian Access to Open Space. The 1976 and 2007
Judgments required Owner to provide access to open space, but contemplated that County
would construct any desired trails. 'As further consideration for this Agreement, Owner, at its
expense, shall construct two trails, substantially as shown at Exhibit C or as otherwise agreed in
writing with County, and a third trail in the roadbed remaining after removal of the Construction
Road as described in Section 4.6(c), infra. In addition, Owner will consult with engineering
consultants to determine if the existing trail leading from Ridge Road to the site of proposed lots
9 through 17 can feasibly be relocated to an alignment closer to said lots than the Construction
Road. All trails shall be subject to a reservation of easements in favor of Owner allowing
installation and maintenance of signs: over Parcel A directing trail users to remain on trails in
order to avoid damage to sensitive habitat; and over Parcel B des ribing the sensitivity of dwarf
Svc. 't-ra; ~s arc. ;n*cncLe-L 'b be. .Servs-cc" lc •s~nc~le. -ose ~~evlestr►q.+.) ~ thx~
ad to tho 22
flax habitat and disallowing all public entry. ^,%eh #oi
Q5 C&Mh•ft1LJ -GNr►CL on hJI.3►0C '&;a is *hr-003hovrr /)grin County
The two trails
shown at Exhibit C hereto shall be completed on or before the County issues the first certificate
of occupancy for any residence within the Project. The trail to be constructed after removal* of
the Construction Road shall be created simultaneously with removal of the Construction Road
paving.
Section 3.4. Infrastructure and Street Improvements. Owner shall construct street,
drainage, utility, and. other infrastructure improvements,- including, without limitation, street
section, sidewalk, curb and gutter, and water pipe and hydrant installation. Owner agrees that,
notwithstanding that Ridge Road and Forest Glen Court shall remain private and be privately
maintained, Owner shall make an irrevocable offer of dedication of a public access easement
over both streets on the subdivision map(s) creating said streets.
12
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Section 3.5 Conditions. Covenants 8 Restrictions. The Conditions, Covenants &
Restrictions for Easton Point shall also include appropriate provisions to ensure regular
maintenance of all corxtmon improvements and landscaping. To ensure that public benefits of
this Agreement continue to be met after initial development, Owner will cause the Conditions,
Covenants & Restrictions for Easton Point to grant the County and Town the power but not the
responsibility to ensure that the provisions pertaining to maintenance of common improvements
and landscaping, and public access to Ridge Road- and Forest Glen Court, are honored. The
Conditions, Covenants & Restrictions shall be in a form reasonably acceptable to Town, shall
name Town as a third-party beneficiary of such provisions with independent rights of
enforcement and shall provide that the provisions pertaining to Ridge Road and Forest Glen
Court and maintenance of common improvements and landscaping may not be amended
without Town's prior written consent.
ARTICLE IV
PERMITTED DEVELOPMENT
Section 4.1 Permitted Use of Property. The permitted use of the Property is the
development of thirty-two residential units, along with subdivision infrastructure, trails, and
dedicated open space, as more fully described in the Existing Approvals, at Exhibit C, and in
this ARTICLE IV.
Section 4,2 Residential _Lots:
(a) Subdivision Lots. Thirty-one residential Subdivision Lots shall be allowed,
N
of the size and in the configuration shown at Exhibit C. The Subdivision Lots may not be further
subdivided.
(b) Remainder Lot. One residential Remainder Lot shall be allowed, of the
size and in the configuration shown at Exhibit C. The Remainder Lot may not be further
subdivided.
13
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11 /i 2ios
(c) Amenities Permitted. Subject to the requirements of this ARTICLE IV,
including normally applicable design review, maximum building height, and maximum building
size, each of the Subdivision Lots and the Remainder Lot may be developed with, in addition to
primary residence; features customarily associated with luxury residential developments
a P
including, by way of example and not limitation, guest houses,'pools, cabanas, gazebos, decks,
patios, sports courts, swing sets and similar play features, hardscape and other landscape
design features, and garages.
d) Design Review. The configuration, height and design including color,
(
exterior fagade, roof materials, window placement, and other design elements - of all primary
residences and other permitted ancillary amenities and structures ordinarily subject to design
review under the Development Standards -(as defined below), shall be subject to design review,
which shall be a Subsequent Discretionary Approval as provided in Section 6.1(b) below.
(e) Limitation on Square Footage. Maximum square footage per lot, as
described in Section 4.2(g), infra, may not be exceeded..
(f) Maximum Building Height.
W The residence on each lot shall not exceed thirty feet (30') in
height from grade, except that on Lots 18-31 inclusive, where there is a Residential Building
Envelope with a percent of slope that exceeds thirty (30) percent, the height limit for the
residence shall not exceed thirty-five feet (35') from grade to allow adequate building height for
-the downhill portion of the envelope. The Design Review Board shall discourage building
heights in excess of thirty feet (30') from grade on the uphill portion of any residence on such
lots. Percent of slope shall be calculated before residential grading and shall be measured
along a line passing through the center of the Residential Building Envelope and perpendicular
to the natural contours.
(ii) The height of the residence on Lot 9 shall not exceed eighteen
feet (18') from grade on the uphill side, but the. building may step down the slope if permitted by
14
EXHiSIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
design review. No building or structure on Lot 9 shall break the plane of the San Francisco Bay
water view as seen from the trail above at Global Positioning System coordinates
~Wi) Accessory buildings on any lot shall not exceed fifteen feet (15') in
height from grade. The permissible height of each structure on any lot shall be determined by
design review. Nothing in this subsection (f) shall preclude construction of the maximum sizes
shown in subsection (g) below.
(g) Building Sizes.
(i) Maximum Square Footage of Structures. The maximum total
permissible square footage of all structures on each lot shall be as follows'.
Lot 1 4,800 sq.ft. Lot 17 6,000 sq.ft.
Lot 2 4,800 sq.ft. Lot 18 6,000 sq.ft.
Lot 3 . 4,800 sq.ft. Lot 19 6,000 sq.ft.
Lot 4 4,800 sq.ft. Lot 20 6,000 sq.ft.
Lot 5 6,000 sq.ft. Lot 21 6,000 sq.ft.
Lot 6 6,000 sq.ft. Lot 22 10,000 sq.ft.
Lot 7 6,000 sq.ft: Lot 23 10,000 sq.ft.
Lot 8 6,000 sq.ft. Lot 24 10,000. sq.ft.
Lot 9 5,500 sq.ft. Lot 25 10,000 sq.ft.
Lot 10 7,500 sq.ft. Lot 26' 10,000 sq.ft._
Lot 11 7,500. sq.ft. Lot 27 10,000 sq.ft.
Lot 12 7,500 sq.ft. Lot 28 10,000 sq.ft.
Lot 13 7,500 sq.ft: Lot 29 10,000 sq.ft.
-Lot 14 7,500 sq.ft. Lot 30 10,000 sq.ft.
Lot 15 7,500 sq.ft. Lot '31 10,000- sq.ft.
Lot 16 7,500 sq.ft. Remainder Lot 15,000 sq.ft.
(ii) Entire Square Footage Shall Be Allowed. Owner shall be
permitted to. build structures on each of the foregoing lots which total the maximum square
footage shown above. The normally applicable design review process will control the shape
and height of structures and their location within the Landscape and Building Envelope (as
defined below), except that each lot owner will be entitled to construct the entire maximum
permissible square footage defined in Section 4.2(g), supra. To the extent, if any, that a
Development Standard might otherwise prevent construction of the entire maximum permissible
15
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
square footage, such standard shall .not be applied in a manner that reduces maximum
permissible square* footage. For the Remainder Lot, construction of maximum permissible
.
square footage may be conditioned on provision of adequate utilities to serve such construction,
including adequate fire flow.
(W) Calculation of Square Footage. Square footage shalt be
calculated according to the method set forth in the Tiburon Zoning Code as of October 26, 2009,
including Tiburon Zoning Code's definition' of "Floor Area, Gross," except that garages, carports
and accessory buildings shall be counted towards square footage.
(iv) Features Excluded from S LL- Foota e. For the purpose of -Qq calculating maximum square footage per lot, "structure" does not include such features as:
fences, • retaining walls; features customarily associated with landscape design (such as trellises,
.
gazebos, and fountains); children's play sets;, shade structures having fewer than four sides;
and features which are three feet or less above grade (such as pools, decks, and- sports courts).
(h) B•uildin Landsca a Envelo e. Landscape, hardscape, and structures
not customarily used for overnight accommodation may be located anywhere within the Building
& Landscape Envelope shown at Exhibit C ("Building & Landscape Envelope°), subject to
design review approval when applicable. The Building & Landscape Envelope for each lot may
be fully enclosed with 6-foot high open wire fencing substantially in conformance with the
specifications shown in the Existing Approvals, except that the use of such fencing, within twenty
feet (20') of the edge of the pavement on Ridge Road or Forest Glen Court is permissible only
with design review approval. In addition, for Lots 5 and 6, such fencing within 20' of the edge of
the pavement of the driveway which serves Lots 6-8 requires design review *approval.
W Residential Building Envelo e. Ali structures customarily used for
accommodations, including the primary residence and any guest home, must be
overnight
within the Residential Building Envelope shown at Exhibit C ("Residential Building Envelope"),
provided, however, that minor adjustments in the location of each such Residential Building
16
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12109
Envelope that do not increase the size of -the Residential Building Envelope may be made
during design review based on more precise field topography, by concurrence between the
project engineer and County Public Works Director or, in the event of annexation by Town, the
Town Community Development Director.
(j) Private Open Space. As shown at Exhibit C, the Private Open Space
- consists of all area on each Subdivision and Remainder Lot that is outside the Building &
Landscape Envelope ("Private Open Space"). Construction activities shall be limited to the
Residential Building Envelope to the maximum extent feasible. The Private Open Space is
intended, following completion of construction, to be visually indistinct from public open space.
For this reason, only the following activities are permitted on private lots outside of the Building
& Landscape Envelopes:
(i) installation and maintenance of surveyor markers not to exceed
one foot (1') in height above grade at comers and at metes and bounds call-out change points
to delineate the boundary interface between the Private Open Space and Parcels A or B;
(ii) grassland- and tree-mitigation planting, irrigation, and
maintenance per approved plans;
(iii) vegetation management for. compliance with all fire regulations,
whether imposed by the Tiburon Fire Protection District, -the County, the state, or the federal
government;
(iv) landslide repair, and drain pipe and drainage-pathrimprovernent
and maintenance whenever necessary; per approved plans;
(v) installation, maintenance, repair, and replacement of underground
utilities (e.g., storm drain, sanitary sewer, water, PG&E, telephone, cable), per approved plans;
(vi) replanting after soil disturbance associated with the above-listed
activities or natural disasters.
17
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12109
(k) Landscape Design. All introduced planting is to be contained within the.
Building & landscape Envelope except as otherwise permitted under Section 4.20) above.
Within the Building & Lpndscape Envelope for each lot, landscape design and planting will not
be subject to design review except:
(i) landscape planting must meet Tiburon Fire Protection District,
Marin Municipal Water District, and Tiburon Tree Ordinance guidelines and regulations;
'(ii) a majority of introduced landscaping must be fire, frost, -and
drought tolerant;
(iii) landscaping within twenty feet (20') of the edge of the pavement of
Ridge Road or Forest Glen Court may be regulated through design review in order to achieve
an orderly streetscape from lot to lot; and
(iv) no introduced vegetation on Lots 9 or 17 shall break the plane of
the San Francisco Bay, water view as seen from the trail above at Global Positioning System
coordinates
Section 4.3 Dedicated Open Space.
(a) Improvements. Except as otherwise provided in Section 3.3, supra
(Owner's initial trail construction), and Section 4.3(b), infra .(Owner's right to conduct certain
activities on Parcel A), all trail maintenance and repair and other improvements to and
management of Parcels A and B, and the costs thereof shall be the exclusive responsibility of
the entity to which such parcels are deeded.
(b) Reservation of Easements. Owner shall be entitled to reserve express
easements over Parcels A and B, and to convey such easements to the HOA, for all of the
following purposes:
0) Health and Safety of Subdivision Residents. Owner shall retain
an easement ovee Parcels A and B for any future work required for' the health and safety of any
Easton Point resident, including without limitation landslide repair and - to the extent if any that
18
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
the owners of Parcels A and B fail to maintain vegetation in accord with any future local, county,
state,. or federal fire safety requirements - the ability to cut or clear vegetation in accord with
such fire safety requirements. Exercise of the rights reserved under this Section 4.3(b)(i) shall
require a permit from the County; which permits shall not be unreasonably withheld.
(ii) DrainagewaYs and Utilities. Owner shall retain an easement for
the construction, use, maintenance, and repair of all drainageways and utilities which cross
Parcel A. Exercise of the rights reserved under this Section 4.3(b)(ii) shall require a permit from
the County, which permits shall not be unreasonably withhold.
(iii) Construction Road. Owner shall retain a temporary construction
easement over Parcel A for the construction, use, maintenance, repair, and removal of the
Construction Road. Such temporary construction easement shall automatically. terminate upon
completion of the Construction Road demolition and removal activities and completion of the
replacement trail construction.
(iv) Trail Signs. Owner shall retain an easement over Parcels A and B
for the placement of trail signs, as described in Section '3.3, supra.
(v) Grassland and Tree Mitigation. Owner shall retain an easement
over Parcel A for the planting of trees and grasses that are required as mitigation either for the
Project or for the construction of improvements to any Subdivision Lot or Remainder Lot. Prior
to the planting of trees, Owner shall confer with the entity to which 'Parcel A is deeded for
approval of the optimal location and species of tree to be planted, which approval will not be
unreasonably withheld.
(vi) Relocation of Water Tank Parcel. If the final site for the new water
tank serving Easton Point has not yet been determined by County in consultation with Town as
of the date of conveyance of Parcel A, then Owner shall reserve a license to trade the currently-
designated Parcel C for any other land contained within Parcel A for the purposes of water tank
construction.
19
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
(vii) Indemnification. Owner shall indemnify, defend and hold County
and its elected and appointed representatives, officers, agents and employees harmless from
any liability for damage-or claims for damage for personal injury, bodily injury, death or property
damage, including attorneys fees and costs, which may arise from Owner's acts, omissions,
negligence and willful misconduct in connection with the exercise of its reserved easement
rights, whether such acts, omissions, negligence and willful misconduct are by Owner or any
employee, contractor or subcontractor or agent of Owner. The foregoing indemnity shall not
apply to the extent the liability or claims arise from the sole negligence or willful misconduct of
County or its elected and appointed representatives, officers, agents and employees.
Section 4.4 Water Tank.
(a) Location of Water Tank Parcel. While Parcel C as shown on Exhibit C
has been temporarily designated as the location for the new water tank serving- Easton Point,
such water tank will be located by Owner at the direction of the Town of Tiburon, provided that
all of the following conditions are met:
(i) Concurrence of Fire District. The Tiburon. Fire Protection District
must concur that, -with the-water tank at such newly-designated location, domestic water and fire
flaw to all Subdivision Lots shown at Exhibit C will be adequate to serve homes of the maximum
size permitted under Section 4.2(g), supra.
(ii) Concurrence of MMWD. The Mahn Municipal Water District must
agree to placement of the tank at such newly-designated location. a
(iii) CEQA Compliance. The newly-designated location has been or
will be subject to appropriate environmental review under CEQA without further cost to Owner.
(iv) Timely Designation. The Town of Tiburon must designate such
new location prior to recordation of the first final map for Easton Point.
(v) County Concurrence. The County must agree that a final map for
Easton Point may be recorded with' Parcel C in its newly-designated location.
20
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
(b) Water Tank Screening. If the newly-designated water tank site allows the
new water tank to be situated partially or fully underground while still maintaining adequate
domestic and fire flow-to all lots, Owner will do so at its expense. Otherwise, Owner shall
provide such landscaping as will best screen the tank's visual impacts.
Section 4.5 Sewers. All Subdivision Lots and the Remainder Lot shall only be served
by the public sewer district and may not be served by any septic system. The Town of Tiburon
has previously agreed to consider annexation of the Property as provided in the Memorandum
of.Understanding executed between Town and Owner on November 12, 2009 (or if annexation
cannot be accomplished on a timely basis, to enter into a deferred annexation agreement with
Owner to permit annexation of the Property into the public sewer district prior to its annexation
into the Town).
Section 4.6 Roads and Driveways.
(a) Residential Roads and Driveways. Roads and driveways shall be
designed and constructed per Existing Approvals. All roads and driveways shall be privately
maintained, but public access to Ridge Road, Forest Glen Court, and the road serving the water
tank may not be obstructed or restricted against public use, and the Construction Road shall not
be obstructed or restricted against public pedestrian use except as such use may conflict with
active construction access requirements. The foregoing public access requirements shall be
included with the Conditions, Covenants & Restrictions for the Project, and Town shall be a
third-party beneficiary thereof with independent rights to enforce such requirement!
(b) Water Tank Road. The road serving the water tank shalt be made as
informal as possible while still being adequate for construction traffic, Tiburon Fire Protection
District, and Marin Municipal Water District purposes.
(c) Construction Road
(i) Timing and Necessity. The Construction Road shown at Exhibit C
hereto must be installed prior to installation of any other improvements, including utilities,
21
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
provided however that if all lots in either the Lots 1 through 8 cluster or lots 9 through 17 cluster
are dedicated to non-residential -uses, then the Construction Road need not be built, and
construction access to -Lots 1 through 8 or to Lots 9 through 17, as the case may be, shall be
through the Hill Haven subdivision. If the Construction Road is built, then so long as it remains
in piace,.it shall be the exclusive construction access for Lots 1 through 17, unless the Town
Council in its discretion otherwise directs.
(ii) Removal. Unless otherwise approved by the County in its
discretion - and subject to consultation.with the Tiburon Fire Protection District and any other
agency with jurisdiction that the Project is acceptable without the Construction Road in place -
Owner shall cause the paving, guard rails, and runaway truck ramp for the Construction Road to
be removed and the roadbed re-vegetated or otherwise made suitable for trail use (but not
recontoured except as necessary for trail use) during-the first construction season after either, at
the County's discretion, twelve (12) of the. homes to be constructed on Lots 1-17 have been
granted a certificate of occupancy, or ten (10) years from the Effective Date of this Agreement,
and thereafter all subsequent construction access to Lots 1 through 17 shall be through the Hill
Haven subdivision.
Section 4.7 Staging and Stockpiling. Lot 5, or a suitable alternative lot approved by
County, shall be set aside for construction staging and stockpiling until residences on all other
Lots deriving access from the Hill Haven subdivision have been constructed.
ARTICLE V k
VESTING
Section 5.1 Vestin This Agreement sets forth the applicable fges, policies, and
zoning requirements that apply to Owner's development of the Project and provides Owner with
.
a vested right to develop the Project in accord with this Agreement throughout its entire term.
The term and duration of all Existing Approvals shall automatically be extended for the-longer of
the duration of this Agreement cr the term otherwise applicable to such Existing Approvals.
22
EXHIBIT 9 TO MEMORANDUM OF UNDERSTANDING
11112/09
Section 5.2 Vested Elements. The -Existing Approvals, this Agreement, and the
Development Standards described, in Section 5.3, infra, shall control the permitted use of the
Property, the density and intensity of use, landscape and design requirements, maximum height
and size of proposed buildings, development phasing, access and circulation requirements,
provisions for reservation or dedication of land for public purposes, provisions for infrastructure
and subdivision improvements, and impact fees and exactions applicable to the Property and
Project ("Vested Elements"). Except as otherwise provided in Sections 5.9, 5.10, and 5.11,
infra, to the extent any changes in the Countywide Plan or Tiburon General Plan, the zoning
codes or other rules, ordinances, regulations or policies (whether adopted by means of an
ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason
whatsoever and adopted by the Board of Supervisors, Town Council, a Planning Commission or
any other Board, Commission or Department of the County or Town or any office or employee
thereof, or by the electorate) -are in conflict with the Vested Elements or the provisions of this
Agreement, the Vested Elements and the provisions of this Agreement shall prevail. Such
change in Plans, codes, rules, ordinances, regulations, or policies shall be deemed to conflict
with the Vested Elements if such change is contrary -to or inconsistent with the Vested
Elements, or would burden the Project with significant expense or material delay unforeseen as
of the Effective Date.
Section 5.3 Development Standards. The development policies, rules and
regulations, including but not limited to subdivision ordinances of the County in efect as of the
Effective Date, are hereby vested subject to the provisions of this Agreement; provided however
that upon annexation, the development policies, rules and regulations of the Town of Tiburon in
effect as of October 26, 2009 (or as otherwise agreed by the parties and bound in the "Existing
Approvals and Tiburon Development Standards" volume described below), shall vest instead
("Development Standards°), with the explicit exception of the Town's development policies
governing landslide repair - which the parties acknowledge are potentially inconsistent with
23
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Existing Approvals - and further provided that the foregoing explicit acknowledgement of the
inconsistency of the Town's landslide repair policies with Existing Approvals shall not be cause
to invoke the principleof expressio unis esf exclusio alterius in interpreting the applicability of
other Development Standards to the Project. For ease of future reference under this
Agreement, and because annexation is anticipated,. the parties have prepared three (3) identical
copies of the Existing Approvals as well as the development policies, rules, and regulations of
the Town of Tiburon in effect as of October 26, 2009 (or as otherwise agreed by the parties),
they have bound such copies and entitled them "Existing Approvals and Tiburon Development
Standards," and they have distributed one copy each to the County, the Town, and the Owner.
To the extent that the Development Standards conflict with Existing Approvals, the Existing
Approvals shall control. To the extent that the Existing Approvals conflict with this Agreement,
the requirements and-terms of this Agreement shall prevail.
Section 5.4 Fees and Mitigations for Subdivision Improvements_ Impact fees and off-
site mitigations in connection with subdivision improvements and infrastructure development
shall be governed by this Section 5.4.
(a) Subdivision Improvement Agreement Bond. A refundable deposit or
performance, labor and materials and warranty bonds may be required- in connection with the
subdivision improvement agreement at the time the first grading permit for the Project is issued,
provided however, that such requirements shall not be applied to the Project, in a different
manner than to other similar properties within the County.
(b) Fees for Subdivision Im movements and Infrastructure Development. No
additional impact fees, nor any additional requirements for off-site improvements, may be
imposed on the Project beyond what is provided in this Section 5.4. Impact fees and all off-site
mitigations with respect to subdivision improvements and infrastructure development shall be
limited to the following:
24
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Grading and Building Permit and Inspection Fees. Customary
fees for grading and building permits and inspections may be charged,. at the rates then in effect
when such fees are due, provided that such fees shall not be applied to the Project in a different
manner than to other similar properties within the County.
(ii) Offsite Traffic Mitigations. Owner shall either constructor pay for
the following off-site traffic mitigations, subject to normally applicable permit requirements:
• Posting of signs prohibiting parking along both sides of
Diviso Street and along other residential streets in the Hill Haven subdivision narrower than
twenty feet (20') wide;
• Installing stop or yield sign control for the side streets
intersecting Ridge Road;
• As provided iri the Precise Development Plan, improving
the Forest Glen Court./ Paradise Drive intersection to provide a minimum of 150 feet of ' sight
distance in both directions for outbound vehicles to see and be seen; and
• As provided in the Precise Development Plan, widening
Paradise Drive roadway to. include four-foot (4') shoulders with sixty foot (60') tapers at the
driveway on the south end (driveway for Lots 18-21) and the Forest Glen intersection at the
north end.
(iii) Street Improvements. Owner. shall repair any 'deteriorated
pavement along Paradise Drive and Old Tiburon / Hill Haven streets identified im cooperation
with the Town of Tiburon and Marin County by a before-and-after pavement evaluation program
that shall determine if project-generated truck traffic * caused any additional pavement
deterioration. In addition, Owner shall pay a one-time road mitigation fee of four hundred
thousand dollars ($400,000) at the time Owner receives its first grading permit.
25
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
(iv) EIR / MMRP Mitigations. Owner shall also comply with all other
mitigation measures set forth in the EIR and accompanying Mitigation Monitoring Program.
c Town W'Ide Tax and --Assessment Districts. Owner agrees that it will
voluntarily annex the Property into the Belvedere-Tiburon Library Assessment District and any
other Town-wide tax and assessment districts that may exist as of the date of recordation of the
first final map for Easton Point.
(d) No Affordable Housin Miti ations and Fees. Without limiting the
.generality of the foregoing Section 5.4(b),. no requirements or fees with respect to affordable or
inclusionary housing may be imposed on either the Project or on any future lot owner as a
condition of developing any Subdivision or Remainder Lot. the County having agreed to assume
responsibility for compliance with all ordinances, codes, and regulations governing affordable or
inclusionary housing. In the event Town annexes the Property and assumes this Agreement,
County shall retain all obligations, if any, with respect to affordable and inclusionary housing,
and Town shall have no obligations with respect thereto.
(e) No Parks & Recreation I Quimby Act Fees. Without limiting the generality
of the foregoing Section 5.4(b), no requirements or fees with respect to parks and recreation
may be imposed on the Project, and no Quimby Act fees may. be imposed on any future -lot
owner as a condition of developing any Subdivision or Remainder Lot, the Owner having agreed
to dedicate approximately fifty-nine (59) acres to open space purposes and to construct trails for
public use on such property; provided, however, that all Town-wide taxes, fees, or assessments
for parks and recreation will be applicable to the Property and to the individual lots in the same
fashion such taxes, fees, or assessments are applicable to other parcels.
Section 5.5 Fees and Miti ations for Individual Home Construction. Except as set
in- Sections 5.4(d) and. (e), all fees customarily imposed at the time of or following design
forth
review for an individual single-family residence may be charged to and shall be paid by the
owners of the individual Subdivision and Remainder Lots at the rates then in effect, including
26
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
without limitation fees for design review; grading; building; other construction-related fees (e.g.,
plumbing, swimming, electrical, mechanical permits and inspections); connection fees; and
impact fees (e-g., street-impact fees, traffic mitigation fees, storm water run-off fees), provided
that such fees shall not be applied to residences which are located within the Project in a
different manner than to other similar properties within the County. The owner of the Remainder
Lot shall design the Remainder. Lot driveway to provide the maximum amount of widening and
refuge area reasonably possible at the intersection of Paradise Drive.
Section 5.6 Phasing of Maps Permitted. Multiple final maps for the Tentative
Subdivision Map may be filed throughout the duration of this Agreement. Unless otherwise
required by state law or court ruling, the rights accorded by this Agreement shall not be
dependent on the timelines which would otherwise control under California's Subdivision Map
Act in the absence of this Agreement.
Section 5.7 Timinq and Duration of Phased Development. The parties acknowledge
that Owner cannot at this time predict when, or the rate at which, phases of the Property would
be developed. Such' decisions depend upon numerous factors which are not all within the
control of Owner, such as market orientation and demand, interest rates, competition and other
factors. It is the intent of County and Owner that - notwithstanding any future amendment to
the Countywide Plan, the. Zoning Ordinance or any other ordinance, policy, plan, rule or
procedure of the County or the Town of Tiburon, or the adoption of any ordinance, policy, plan,
rule or procedure (whether amended or adopted by the County or Town Planning# Commission,
the Board of Supervisors or Tiburon Town Council, or by referendum or initiative - except as set
forth in Section 4.6(c)(1) (Construction Road) and Section 4.7 (Staging and Stockpiling), supra,
Owner shall have the right to develop the Project in such order and at such rate and times as
Owner deems appropriate within the exercise of its sole and subjective business judgment, but
subject to the expiration of this Agreement. Such right is consistent with, and necessary to, the
purpose and understanding of the parties to this Agreement, and without such right, Owner's
27
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
development of the Project would be subject to the uncertainties sought to be avoided by the
Development Agreement Legislation and this Agreement. Nothing contained herein or in the
Existing Approvals, including in the Construction Management Plan, shall be construed to limit
the rights granted under this Section 5.7, the construction timelines in the Construction
Management Plan being only exemplars of, and not restrictions on, how long construction might
take and the phases in which it might be undertaken. Notwithstanding anything herein to the
contrary, Owner shall not be exempt from @ complying with County building code timelines
(including, for example, limits on completion of construction calculated from issuance of building
permits) or (ii) completing work required by any subdivision improvement agreement or similar.
agreement in accordance with the terms thereof-
Section 5.8 Compliance with Other Laws. Owner, at its sole cost and expense, shall
comply with the requirements of, and obtain all permits and approvals required by local, state
and federal agencies having jurisdiction over the Project. Furthermore, Owner shall carry out
the Project work in conformity with all applicable state and federal laws and regulations. If any
governmental entity or agency other than the County or Town passes any state or federal law or
regulation after the Effective Date which prevents or precludes compliance with one or more
provisions of this Agreement or requires changes in plans, maps or permits approved by the
County, - then the provisions of this Agreement shall, to'the extent feasible, be modified or
suspended as may be necessary to comply with such new law or regulation, provided, however,
that in no event shall such modification or suspension have a material impact won Owner's or
County's obligations and rights hereunder without Owner's or County's, as the case may be,
written consent. Immediately after enactment of -any such new law or regulation, the parties
shall meet and confer in good faith to determine the feasibility of any such modification or
suspension based on the effect such modification or suspension would have on the purposes
and intent of this Agreement. In addition, Owner shall have the right to challenge the new law or
regulation preventing compliance with the terms of this Agreement, and, to the extent such
28
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
challenge is successful, this Agreement shall remain unmodified and in full force and effect.
Any such challenge shall be at the sole cost and expense of Owner and shall not involve the
County in any manner without County's prior written consent.
Section 5.9 Building Requirements. Codes, ordinances and 'regulations relating to
construction standards or permits shall apply as' of the time of issuance of each applicable
construction/building permit except to the extent inconsistent with Existing Approvals.
Section 5.10 Life Safety Matters. Nothing herein contained shall be deemed to prevent
adoption and application to the. Property or to improvements upon the Property of laws,
ordinances, uniform codes, rules or regulations pertaining to or imposing life-safety, fire
protection, mechanical, electrical and/or building integrity requirements at the time permits for
construction of such improvements are issued.
Section 5.11 Procedural Matters. All rules and policies relating to applications, notices,
hearing bodies, and other matters of procedure shall be implemented according to regulations
then in effect, provided that such procedures shall not be applied to the Project in a different
manner than to other similar properties within the County.
Section 5.12 Permits and Approvals from Other Agencies. Owner and County
acknowledge and agree that other public agencies not within the control of County possess
authority to regulate aspects of the development of the Property separately from or jointly with.
County, and this Agreement does not limit the authority of such other public agencies. • Owner
shall, at•the time required by Owner in accordance with Owner's -construction schedule, apply
for all such other permits and approvals as maybe required by other governmental or quasi-
governmental entities, including , in connection with the development of, or
the provision of services to, the Project. Owner shall also- pay all required fees when due to
such public agencies. Owner acknowledges that County does not control the amount of any
such fees. The Town of Tburon and all of its departments and agencies shall be bound to the
terms of this Agreement upon annexation of the Property during the term of this Agreement.
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
29
ARTICLE Vl
SUBSEQUENT APPROVALS
Section 6.1 . Subsequent Approvals. Owner and County acknowledge and agree that
Owner intends to,-errbmit applications for Project approvals following the Effective Date
.
"Subsequent Approvals"), including both Subsequent Ministerial Approvals and Subsequent
Discretionary Approvals. In connection with any Subsequent Approval, the County shall
exercise its discretion in accordance with the Development Standards, the Existing Approvals
and as provided by this Agreement.
(a) Subsequent Ministerial Approvals. "Subsequent Ministerial Approvals"
are permits or approvals that are required by the Development Standards, that are
contemplated by the Existing Approvals, and that are to be issued upon compliance with
uniform, objective standards and regulations. They include: approval of final maps;
applications for road construction permits or -authorizations; certain grading and excavation
permits; building permits, including electrical, plumbing and mechanical; certificates of
occupancy; certain encroachment permits; water connection permits;. and any other similar
permits required for the development and occupancy of the homes and other structures-
comprising the Project. Applications for Subsequent Ministerial Approvals that are consistent
with this Agreement and the Existing Approvals shall be processed and considered in a manner
consistent with the Vested Rights granted by this Agreement and shall be deemed to be tools to
implement those final policy decisions, and 'shall be approved by County so long as they are
consistent with this.Agreement and the Existing Approvals.
(b) Subsequent Discretionary Approvals. "Subsequent Discretionary
Approvals" are permits or approvals which are either inconsistent with or not encompassed
within the scope of the Existing Approvals. Design/architectural review permits for individual
residences shall constitute a Subsequent Discretionary Approval. No other Subsequent
Discretionary Approvals are anticipated at this time; however, if application is made for
30
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
amendments to the Existing Approvals or to this Agreement, for lot line adjustments, for
rezonings, or for other actions not, encompassed within the Existing Approvals, the County
expressly reserves its discretion with respect to all such Subsequent Discretionary Approvals.
Section 6.2 Processing Applications * for Subsequent Approvals. Owner
acknowledges that County cannot begin processing applications for Subsequent Approvals until
Owner submits complete applications on a timely basis. Owner shall use its best efforts to (i)
provide to County in a timely manner any and all documents, applications, plans, and other
information necessary for County to carry out its obligations hereunder; and (ii) cause Owners
planners, engineers, and all other consultants to provide to County in a timely 'manner all such
documents, applications, plans and other materials required under-the Development Standards.
Section 6.3 Additional CEQAA Processing. The parties understand that the EIR is
intended to be used not only in connection with the Existing Approvals, but also in connection
with necessary Subsequent Approvals. However, the parties acknowledge that, depending on
the scope of the project described in Owner's applications, certain Subsequent Discretionary
Approvals may legally require additional analysis under CEQA. Notwithstanding any other
provision of this Agreement, nothing contained -herein is intended to limit or restrict the
discretion of the County to comply with CEQA. However, the County shall not undertake
additional environmental review or impose new or additional mitigation measures on the Project,
or any portion thereof, other than as required by Public Resources Code section 21166 and
CEQA Guidelines section 15162. To the extent supplemental or additional review#is required in
connection with Subsequent Approvals, Owner acknowledges that CEQA may require additional
mitigation- measures necessary to mitigate significant impacts that were not foreseen at the time
this Agreement .was executed. Any such supplemental or additional review that may be
required under CEQA shall be at Owners expense.
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
31
ARTICLE VII
OBLIGATIONS OF THE PARTIES
Section 7.1 Owner.
(a) ompliance with Development Agreement. In consideration of the
County entering into this Agreement, Owner has agreed that development of the Property
.
during the term of this Agreement shall be in conformance with all of the terms, covenants and
requirements of this Agreement and Existing Approvals, as they may each be hereafter
amended with the consent of County and Owner in accordance with the provisions of Section
9.5, infra.
(b) Implementation of On-Site Mitigation Measures. Without limiting the
generality of the foregoing Section 7.1(a), Owner will at its cost implement all of the'on-site
mitigation measures described in the Existing Approvals.
c Grant of Conservation Easement. Owner will record an easement in
favor of Town bver all Private Open Space for the exclusive purpose of maintaining the subject
property in a natural state, with only such modification as expressly allowed by the Agreement
or required by the Tiburon Fire Protection District. Such easement shall allow inspection access
Town's code enforcement employees upon' reasonable advance notice to the Lot owner,
by
and, following notice and expiration of applicable cure period, the right for Town to cure a lot
owner default at the lot owner's expense. Nothing contained herein or in such easement shall
'
allow public access over Private Open Space. The conservation easement shall be in a form
~
reasonably acceptable to the Town Attorney. .
(d) Deed Restrictions on Lots 9 and 17. In any deed*conveying title to Lots 9
and 17, Owner will include a restriction implementing Section 4.2(k)(iv), which prohibits any
that exceeds the height allowed in Section 4.2(k)(iv). This restriction shall be
vegetation
expressly enforceable by the Town.
32
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
(e) Creation of HOA. Owner will form an Easton Point owners' association
(°HOA"), which shall- have among its responsibilities the repair and maintenance of all common
improvements, includir!9 , all private roads open to public use, at the HOA's sole cost, expense,
and liability. The Conditions, Covenants & Restrictions for Easton Point shall conform to this
Agreement and shall be presented to County Counsel for review and approval not to be
unreasonably withheld, conditioned or delayed.
(f) Indemnification and Defense of County. In the event of any legal action
instituted by a third party other than the Town. challengirig the validity of this Agreement or any
provision hereof, Owner hereby agrees to: (i) defend such action on behalf of Owner and
County at Owner's sole expense. and with counsel reasonably acceptable to County; and (ii) to
indemnify and hold County harmless from and against any and all costs, attorney fees, damage
awards or expenses of any kind arising in any manner out of such action. County may, in its
sole discretion, participate in the defense of such action at no cost to Owner, but such
participation shall not relieve Owner of its obligations under tais Agreement.
(g) Insurance. Owner shall procure and maintain, or cause its contractor(s)
to, procure and maintain, on or before commencement of any Project work and continuing
thereafter for the remaining term of this Agreement, insurance policies set forth in this
subsection (g). All such insurance shall be subject to approval by County Counsel as to form,
amount and carrier. All requirements shall appear either in the body of the insurance policy or
in endorsements and shall specifically bind the insurance carrier. Such 'insurance shall not be
construed to relieve Owner or its contractor(s) of any liability in excess of such coverages. The
required insurance coverages shall include:
W Workers' Compensation and Employers' Liability Insurance: In
conformance with statutory coverage requirements. In sighing this Agreement, Owner makes
the following certification:
33
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
I am aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Workers' Compensation
or to undertake self-insurance in accordance with the provisions of~aCode, tand he
I will comply with such provisions before commencing the.pe o
work of this Agreement.
1! Commercial General Lisbilit insurance, In an amount not less
than two million dollars ($2,000,000.00) for injuries including, but not limited to, death to any one
person, and including blanket contractual liability, and subject to the same limit for each person,
in an amount not less than one million dollars ($1,000,000.00) combined single limit per
occurrence for bodily injury, personal injury and property damage.
(iii) Automobile Liabty Code 1) Insurance: In an amount not less
than one million dollars ($1,000,000.00) combined single limit per accident for bodily injury and
property damage.
It is agreed that the insurance required by subsections (ii) and (iii) shall be in an aggregate
amount of not less than two million dollars ($2,000,000.00) and shall be extended to include 'as
additional insureds the County, its elective and appointive boards, officers, agents and
employees, with respect to operations performed by the Owner as described herein. Evidence
of the insurance described above shall be 'provided' to County on or before commencement of
any Project work and shall be subject to approval by the County Counsel as to form, amount
and carrier. The policy of insurance shall also contain a provision indicating that such insurance
shall not be reduced or canceled except upon thirty (30) days written notice to County.. In
addition, the following endorsement shall be made on the policy of insurance:
Notwithstanding any other provisions in this policy, the insurance afforded
hereunder to the County shall be primary as to any other insurance,
reinsurance, self-insurance or joint self-insurance covering or available to the
County, and such other insurance, reinsurance, self-insurance or joint self-
insurance shall not be required- to contribute to any liability or loss until and
unless the applicable limit of liability afforded hereunder is exhausted.
34
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Section 7.2 County.
(a) Certificate of Compliance: Upon application of Owner, and before
recordation of the firs final map for Easton Point, County shall issue a certificate of compliance
for the Remainder Lot pursuant to Marin County Code 22:84.070 evidencing the. legality of
such Lot for single-family home construction pursuant to the terms of ARTICLE IV, supra, but
precluding its further subdivision.
(b) Affordable or Inclusionary Housing Mitigations and Fees. The County of
Marin itself shall assume responsibility for compliance with all ordinances, codes, and
regulations governing affordable gr inclusionary housing for the Project, if any, at no cost to
Owner. In the event Town annexes the Property and assumes this Agreement, County shall
retain.ali obligations, if any, with respect to affordable and inclusionary housing and Town shall
have no obligations with respect thereto.
(c) Relocation of Parcel C. County agrees that, so long as adequate CEQA
review has occurred and adequate findings have been made as necessary to address health,
safety, and other environmental issues, a final map with'Parcel C relocated pursuant to Section
4.4, supra, shalt be deemed to substantially conform to the Tentative Subdivision Map.
(d) Good Faith in Proceeding . County agrees that it will accept, process
and review in good faith and in the normal manner and within the normal time consistent with
such applications, all applications related to the Project for environmental and design review,
subdivision of the Property, recordation of final maps, conditional use permits (ait' amendments
thereto), building permits or other entitlements for use of the Property, in accordance with the
terms and spirit of this Agreement. The County shall not use any County custom, policy, or
procedure which is not mandated by state law to delay approval and recordation of any final
.
map.
(e) Additional Approvals. County shall cooperate with Owner, at no cost to
County, in Owner's endeavors to obtain any other permits and approvals as may be required
35
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
from other governmental or quasi-govemmental agencies having jurisdiction over the Project,
including, without limitation, approval of annexation into Sanitary District 5. The cooperation
contemplated by this section 7.2(e) shall require County to provide necessary requested
information and documents but shall not require County to actively participate in the application
process for such permits unless to do so is customary under the circumstances.
(f) No Contrary Actions. County agrees that, except to submit to a vote of
the electorate any initiative or referendum required by law to be placed on a ballot and fulfill any
legal responsibility to defend a ballot measure passed by its voters, it shall not support, adopt or
enact any law, resolution, or ordinance, or take any other action, which would violate the
express provisions or spirit and intent of this Agreement. County further agrees that it shall
cooperate with Owner, at no expense to County, in any litigation instituted by a third party
challenging the validity of this Agreement, or any portion hereof, and shall not settle such
litigation without the consent of Owner.
ARTICLE Vlll
DEFAULT AND REMEDIES
Section 8.1 Notice of Breach / Meet and Confer. Prior to the initiation of any action
for relief specified in this ARTICLE VIII because of an alleged breach of this Agreement, the
party claiming breach shall deliver to the other party a written notice of breach '("Notice of
Breach"). The Notice of Breach shall specify with reasonable particularity the reasons for the
allegation of breach and the manner in which the alleged breach may be. satisfactorily cured. If,
in the determination of the allegedly breaching party, such event does not constitute a breach of
this Agreement, the party to which the Notice of Breach is directed, within thirty (30) days of
receipt of the Notice of Breach, shall deliver to the party giving the Notice of Breach a notice (a
"Compliance Notice") which sets forth with reasonable particularity the reasons that a breach
has not occurred. A defaulting party shall cure the default within thirty (30) days following
receipt of the Notice of Breach, provided, however, if the nature of the alleged default is such
36
EXHISIT.1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
that it cannot reasonably be cured within such 30-day period, then the commencement of the
cure within such time period, and the diligent prosecution to completion of the cure thereafter,
shall be deemed to be a,cure, provided that if the cure is not diligently prosecuted to completion,
then no additional cure period shall be provided. If the alleged failure is cured within the time
provided above, then no default shall exist and the noticing party shall take no further action to
exercise any remedies available hereunder. If the alleged failure is not cured, then a default
shall exist under this Agreement and the non-defaulting party, subject to satisfaction of the meet
and confer obligation described below, may exercise the remedies available under Section 8.3,
below. County and Owner acknowledge that a central purpose of this Agreement is to resolve
and avoid disputes and litigation among the parties. County and Owner therefore agree that, in
the event of any alleged default arising hereunder, the parties shall meet and confer in good
faith for a period not to exceed thirty (30) days following delivery of the Notice of Default, in an
effort to resolve the dispute.
Section 8.2 Request for NotThe owner of any portion of the Property shall have
the right to request copies of Notices of Breach given to the owner of any other portion of the
Property. The County and any owners of other portions of the Property to whom such request
has been made shall honor the same and provide such Notices of Breach in the manner and to
the address specified in the request.
Section 8.3 Remedies for Breach. County and Owner acknowledge that a central
purpose of this Agreement is to resolve and avoid disputes and litigation amor)7 the parties.
County and Owner therefore agree that, in the event of a breach of this Agreement, -the parties
shall pursue the following dispute resolution process:
(a) Remedies in General.
(i) Meet and Confer. In the event of any disagreement arising
hereunder, the parties shall meet and confer in good faith. for a period not to exceed thirty (30)
37
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
days following receipt of the Compliaince Notice, with the intention of providing each party-the
benefit of its bargain, regardless of changed or unforeseen circumstances or obstacles.
(ji) Mediation. If any alleged breach is not resolved in writing within
thirty (30) days of receipt of the Compliance Notice provided for in Section 8.1, the matter shall
be submitted to mediation under procedures acceptable to both parties, ,acting in good faith.
(iii) - Arbitration. If an alleged breach or dispute arising out of or under
this Agreement has not been resolved through the meet and confer and mediation procedures
set forth in Sections 8.1, 8.3(a)(i), and 8.3(a)(ii), such breach or dispute shall be submitted to
and resolved by binding arbitration before either the American Arbitration Association (AAA) or
JAMS, to be selected at the option of the demanding party ("Tribunal"), and pursuant to the
then-current applicable rules of the chosen Tribunal. The parties further agree that California
Code of Civil Procedure Section 1283.05, as it may be amended or succeeded from time-to
shall -be incorporated into, made a part of, and made applicable to any arbitration
time,
hereunder. Notwithstanding anything to the contrary in the foregoing, the procedures for
arbitration shall include the following minimum procedures:
Submission. The question of whether a breach has
cured shall be submitted to arbitration on the basis of the issues as framed by the demand
oc
filed by the claimant with the chosen Tribunal ("Demand") and the response filed by respondent.
Demand. No Demand shall be filed until parties have
followed the procedures for curing defaults related to the Demand as set forth in applicable
sections of this Agreement, together with satisfaction of the meet and confer and mediation
procedures set forth in Sections 8.1, 8.3(a)(i), and 8.3(a)(ii).
• Response. Respondent shall be served with the- Demand
shall have twenty (20) days thereafter to serve a response to the Demand on claimant, filing
and
the original with the Tribunal. The response shall specify the respondent's position in-opposition
to the Demand and any relief respondent requests.
38
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
• Arbitrator.. There shall be a single neutral arbitrator.
Within ten (10) days after date of the response (but no later than fifteen (15) days after the date
of the Demand) each party will submit to the other party a list of three (3) potential arbitrators to
hear and decide the dispute ("Exchange"). The arbitrator must be a person who is a member of
the State Bar or a retired California judge and should have at least five (5) years experience in
alternative dispute resolution and have practice or arbitration experience applying California
land use and real property law. The parties shall meet and confer in a good faith attempt to
agree on the arbitrator from such list of names. - If the parties are. unable to agree on the'
selection of an arbitrator within ten (10) days after the Exchange, then either party shall have
the right to apply for the appointment of a duly qualified person to act -as arbitrator to the
Presiding Judge of the Superior Court of the State of California, County of Marin, and neither
party shall have any right to object to the qualifications of said Judge to make such appointment.
If the arbitrator resigns or refuses to.serve, then a new arbitrator shall be appointed as herein
provided.
■ Proceedings. The arbitrator shall not be bound by the
California Rules of Evidence in the conduct of such proceeding although the arbitrator shall take
account of said rules in considering the weight of the evidence. The arbitrator's decision or any
relief granted shall be in conformance with California law, the; failure to do so shall be grounds
for a court to overturn, reverse or modify the decision of the arbitrator, in addition to the grounds
set forth in Code of Civil Procedure section 1286.6. If the arbitrator finds that a breach has in
fact occurred, the arbitrator shall set a reasonable time to remedy such breach. The finding of
the arbitrator with respect to breach shall be conclusive in any subsequent proceeding.
■ Written Opinion. The arbitrator must, on the request of
either party, issue a written opinion with findings of fact and conclusions of law in conformance
with Code of Civil Procedure section 632.
39
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12109
Arbitrator's Fees and Costs. Each party shall advance
one-half (1/2) of any deposit required, by the arbitrator, and shall pay all of its own expenses and
.
attorneys' fees in connection with the arbitration, except that the arbitrator shall have the
discretion to allocate as between the parties, an award of any costs, expenses and the
arbitrator' compensation.
■ Proceedings to En#orce. Except as to those matters
described in Section 8.3(b) below, and subject to the limitation on damages described in Section
8.3(c) below, the parties submit to the jurisdiction of the Superior Court of the State of California,
pursuant to
County of Marin, for purposes of confirming any such award and entering judgment
Code of Civil Procedure § 1285. et seq.
(b) Remedies Pursuant to Sections 1.5 and 1..6.
(i) Petition to U.S. District Court. If either party seeks to terminate
this Agreement, or alleges that there has been a de facto termination, or seeks- to modify or
.
suspend this Agreement pursuant to Sections 1-.5 or 1.6, supra, and the matter is not resolved
by means of the procedures described in Section 8.3(a), supra, then either party may petition
the United States District Court for the Northern District of California, pursuant to its continuing
jurisdiction under the 2010 Judgment, for specific performance, declaratory or injunctive relief,.
or. mandamus or special writs. These remedies shall be cumulative and not exclusive of one
another, and the exercise of any one or more of these remedies shall not constitute a waiver or
election. with respect to any other available remedy. All other controversies ryill be resolved
under Section 8.3(a), supra.
ii) Termination for Cause. If a material default is continuing and
(
unremediated despite proceedings in the United States District Court and the resultant directive
of such court, as described in Sections 1.5 and 1.6, supra, than the non-breaching party may
,
terminate for cause, as described -in Section 1.4, supra.
40
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11112109.
(c) Monetary Damages Unavailable. Monetary damages shall not be
available, but instead the finder of fact shall craft such other relief as will best provide each party
with the benefit of its bargain under this Agreement. Notwithstanding the foregoing, in the event
that the finder of fact finds that one party has defaulted in the payment of monies owed under
this Agreement, in addition to any other remedies the finder of fault finds appropriate, the non-
defaulting party shall be entitled to an award of damages in an amount equal to the. unpaid
funds plus interest.
(d) Attorneys' Fees and Costs. Should any court or arbitration action or
proceeding be brought by either party because of breach of this Agreement or to enforce any
provision of this-Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
and such other costs as may be found to be appropriate by the court or,arbitrator, as applicable.
(e) - No Other Remedies. The remedies in this ARTICLE VIII are the
exclusive remedies for breach or enforcement of this Agreement, and no other remedies shall
be permitted.
ARTICLE IX
ANNUAL REVIEWS AND AMENDMENTS
Section 9.1 Annual Review. The annual review required by California Government
Code Section 65865.1 shall be conducted in accordance with the Compliance Review
procedures in Article of the County's Development Agreement Resolution. This annual
review provision supplements, and does not replace, the provisions of ARTICLE Vill, supra,
whereby either County or Owner may, at any time, assert matters which either party believes
have not been undertaken in accordance with this Agreement by delivering a written Notice of
Breach and following the procedures set forth in ARTICLE VIII, supra. In advance of such
annual review, Owner shall provide County, in a form acceptable to County, with a detailed
status report and analysis of its compliance with this Agreement, including evidence of having
named County as an additional insured pursuant to Section 7.1(g). This Development
41
5XHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11112/09
Agreement may be terminated as a result *of findings made during an annual review provided
that the parties follow the procedures for termination set forth in ARTICLE Vlll, supra.
Section 9.2 Procedures to Amend. This Agreement may be amended or cancelled, in
whole or in part, by the mutual consent of the parties hereto or their successors-in-interest or
assigns and in accordance with the provisions of Government Code Section 65868 and the
County's Development Agreement Resolution. No modification, amendment or other change to
this Development Agreement or any provision hereof shall be effective for any purpose unless
specifically set forth in a writing which refers expressly to this Agreement and signed by duly
authorized representatives of both parties or their successors.
Section 9.3 Insubstantial Amendments. Any amendment to this Agreement which, in
the context of the overall Project, does not substantially affect the term of this Agreement, the
permitted uses of the Property, provisions for reservation or dedication of land, density or
intensity of use of the Property, requirements for design review approval, maximum height or
size of "buildings, or monetary contributions by Owner shall be deemed an "Insubstantial
Amendment" and shall not, except to the extent otherwise required by law, require notice or
public hearing before the parties may execute an amendment hereto. The County Administrator
shall have the authority to execute an Insubstantial Amendment or may, in his or her discretion,
seek approval of an Insubstantial Amendment by County resolution.
Section 9.4 Amendments to Development Are ament Legislation. This Agreement
has been entered into in reliance upon the provisions of the Development Agreement
Legislation as those provisions existed at the date of execution of this Agreement. No
.
amendment or addition to those provisions which would materially affect the interpretation or
enforceability of this Agreement shall be applicable to this Agreement unless such application is
specifically required by the California State Legislature or mandated by a court of competent
jurisdiction. If such amendment or change is permissive (as opposed to mandatory), this
Agreement shall not be affected by same unless the parties mutually agree in writing to amend
42
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
this Agreement to permit such applicability. If the parties do not agree as to whether the
statutory. amendment is permissive or mandatory, the amendment will be presumed to apply to
the Agreement.
Section 9.5 Amendment of Existing Approvals. Notwithstanding any provisions in this
Agreement, Owner may seek and County may review and grant, in accordance with applicable
law, amendments or modifications to Existing Approvals, and such Existing Approvals as
amended. shall continue to be governed by this Agreement without amendment of this
Agreement. However, the issuance of any land use approval or permit upon the application of
Owner which approves a change in the term, permitted uses, density or intensity of use, height
or size of buildings, provisions for reservation and dedication of land, conditions, terms,
restrictions and requirements relating to subsequent. discretionary actions, monetary
contributions by Owner or any other Vested Element set forth in this Agreement, shall require an
amendment to this Agreement for such change to be vested hereunder.
ARTICLE X
TRANSFERS AND.ASSIGNMENTS
Section 10.1 Town as Successor-in-Interest to County. Although not required by the
terms of this Agreement, it is anticipated by the parties that the Property shall. be annexed into
the Town shortly after recordation of the first final map for Easton Point. Except where the
context does not permit such interpretation, once annexation has occurred, the term "County" as
used herein shall refer instead to the Town of Tiburon, "County Board of Supervisors" shall refer
instead to 'Town Council," "County Planning Commission" shall refer instead to "Town Planning
Commission," "County Administrator" shall refer instead to ' "Town Manager," and "County
Counsel" shall refer instead to 'Town Attorney." Without limiting the generality of the foregoing,
the term "County of-Marin" as used in Section 7.2(lq),.supra, shall not be construed to mean the
Town.
43
EXHIBIT'1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Section 10.2 Right.to Assign. Owner shall have the right to sell, assign or transfer, in
whole or in part, its rights, duties and obligations under this Agreement to any person or entity at
any time during the term of this Agreement, including without limitation the right to assign or
I
transfer such rights, duties and obligations to the HOA, provided, however, that -except in the
case of an assignment or transfer of rights, duties. and obligations to the HOA. - the rights,
duties and obligations conferred upon Owner pursuant to this Agreement shall not be at any
time so transferred or assigned except through a transfer of the Property and the assumption by
the transferee of the Owner's duties and obligations under this Development Agreement'in so
for as such duties and obligations pertain to the portion' of the Property transferred (if less than
all of the Property is so transferred). Any such transfer and assignment. shall be pursuant to an
assignment and assumption agreement my a form reasonably acceptable to County Counsel. In
the event of a transfer of a portion of the Property, Owner shall have the right to transfer its
rights, duties and obligations under this Agreement which are applicable to the transferred
portion, and to retain all rights, duties and obligations applicable to the retained portions of the
Property. All costs incurred by County, including attorneys fees and costs, in connection with
review and approval of the transfer and assignment documentation, including assignment and
assumption agreement, shall be bome by Owner.
Section 10.3 Release Upon Transfer. Upon the sale, transfer or assignment of
Owner's rights and interests under this Agreement pursuant to Section 10.2, Owner shall be
released from its obligations under this. Agreement with respect to that portion pf the Property
sold, transferred or assigned, and any default or breach with respect to the transferred or
assigned rights and/or obligations shall not constitute a default or breach with respect to the
remaining rights and/or obligations under this Agreement, provided that: (a) Owner is not then
in material default under this Agreement; (b) Owner has provided to County notice of such
transfer; and (c) the transferee executes and delivers to County a written agreement, in form
reasonably acceptable to County Counsel, in which (i) the name and address of the transferee
44
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
is set forth and (ii)'the transferee expressly and unconditionally assumes all of the obligations of
owner under this Agreement with respect to that portion of the Property sold, transferred or
assigned. Failure to deliver a written assignment and assumption agreement hereunder shall
not affect the running of any covenants herein with the land, as provided in Section 10.4, infra,
nor shall such failure negate, modify or otherwise affect the liability of any transferee pursuant to
the provisions of this Agreement.
Section 10.4 Covenants Run with the Land. All of the provisions, agreements, rights,
powers, standards, terms, covenants and obligations contained in this Agreement shall be
binding upon the parties and their respective heirs, successors (by annexation, merger,
consolidation, or otherwise) and assigns, devises, administrators, representatives, lessees, and
all of the persons or entities acquiring the Property or any portion thereof, or any interest
therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit
• of the parties and their respective heirs, successors. (by annexation, merger, consolidation or
otherwise) and 'assigns. All of -the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with. the land pursuant to- applicable law,
including but not limited to Section 1468 of the Civil Code of the State of California. Each
covenant to do or to refrain from doing some act on the Property hereunder, or with respect to
any County-owned property: (a) is for the benefit of such properties and is a burden upon such
property; (b) runs with such properties; and (c) is binding upon each party and each successive
owner during its ownership of such properties or any portion thereof, and each person or entity
• having any interest therein derived in any manner through any owner of such properties, or any
portion thereof, and shall benefit each property hereunder, and each other person or entity
succeeding to an interest in such properties.
Section 10.5 Future Lot Owners and HOA as Third-Party Beneficiaries. The individual
entities which purchase Subdivision or Remainder Lots, as well as the- HOA, are third-party
beneficiaries of this Agreement, with the right to enforce the Permitted Uses described in
45
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12!09
ARTICLE IV, supra, provided, however, that the enforcement of such rights is limited to the
procedures and remedies set forth in ARTICLEVIII, supra.
ARTICLE XI
NK RTGAGE PROTECTION, CERTAIN RIGHTS OF CURE
Section 11.1 Mortgage Protection. This Agreement shall be superior and senior to any
lien placed upon the Property or any portion thereof after the date of recording this Agreement,
including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing,
no breach hereof shall defeat, render invalid,. diminish or impair the lien of any Mortgage made
in good faith and for value, but all of the terms and conditions contained in this Agreement shall
be binding upon and effective against any person or entity, including any deed of trust
beneficiary or *mortgagee ("Mortgagee") who acquires title to the Property, or any portion
thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
Section 11.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 11.1
above, no Mortgagee shall have any obligation or duty under this Agreement to construct or
complete the construction of improvements, or to guarantee such construction or completion;
provided, however, that a Mortgagee shall not-be entitled to devote the Property to any uses or
to construct any improvements thereon other than those uses or improvements provided for or
authorized by this Agreement, or otherwise under Existing Approvals.
Section 11.3 Notice of Default to Mortgagee. If County receives a notice from a
Mortgagee requesting a copy of any notice of default given Owner hereunder and specifying the
a
address for service. thereof, then the County shall deliver to such Mortgagee at the address
given by such Mortgagee, concurrently with service thereon to Owner, any Notice of Breach
given to Owner with respect to any claim by the County that Owner has committed an event of
default, and if the County makes a determination of noncompliance hereunder, the County shall
likewise serve notice of such noncompliance on such Mortgagee concurrently with service
thereon on Owner. Each Mortgagee shall have the right during the same period available to
46
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Owner to cure or remedy, or to commence to cure or remedy, the event of default claimed or the
areas of noncompliance set forth- in the County's Notice of Breach. County's obligation under
this Section 11.3 shat-Dot arise nor shall.it continue unless and until Owner or the Mortgagee
has provided (and, upon any change of name, address or telephone number, continued to
provide) County the current name, address and telephone number of the Mortgagee. Such
notice shall be given in accordance with the notice provision of this Agreement.
ARTICLE XII
GENERAL PROVISIONS
Section 12.1 Common Sense Interpretation. It is impossible to anticipate or set forth
every contingency which' might arise during the term of this Agreement; therefore, this
Agreement shall be interpreted in a common-sense 'manner which gives effect to its intent, even
when applied to unanticipated circumstances. The parties shall cooperate in good faith to
implement the terms and spirit of this Agreement. This Agreement, has been reviewed and
revised by legal counsel for both parties, and no presumption shall apply that ambiguities are to
be construed against the drafting party.
Section 12.2 Private U dertakincg: Indemnification. It is specifically understood and
agreed by the parties that the development contemplated by this Agreement is a private
development, that County has no interest in or responsibility for or duty to third persons
concerning any of said improvements, and that Owner shall have full power over and exclusive
control of the Property herein described, subject only to the limitations and obligations of Owner
under this Agreement. Owner hereby agrees to indemnify, defend and hold County and its
elected and appointed representatives, officers, agents and employees harmless from any
liability for damage or claims for damage for personal or bodily injury, including death, as well as
from claims for property damage which may arise from the acts, omissions, negligence or willful
misconduct of Owner or its employees, contractors, subcontractors, agents, or representatives,
excepting suits and actions brought by Owner for default of this Agreement by County or'arising
47
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
from the sole negligence or willful misconduct of County or its elected and appointed
representatives, officers, agents. and employees. Without limiting the generality of the
foregoing, Owner shall be obligated under this Section 12.2 to defend, save and/or hold County
harmless from any and all claims. costs and liability for any damage, personal injury or death,
which may arise, directly or indirectly, from Owner or Owner's contractors, subcontractors,
agents, representatives, or employees' operation in connection with- any improvements
constructed to the County's standards.
Section 12.3 No Joint Venture or Partnership. Nothing contained in this Agreement or
in any document executed in connection with this Agreement shall be construed as making
County and Owner joint venturers or partners.
Section 12.4 Notices Demands and Communications between the Parties. Formal
written notices, demands, correspondence and communications between County and Owner
will be sufficiently given if dispatched by first-class mail, postage prepaid, to the offices of
County and Owner indicated below. Such written notices, demands, correspondence and
communications may be sent in the same manner to such persons and addresses as either
party may from time to time designate by mail as provided in this Section:
County: Community Development Agency
County of Marin
3501 Civic Center Drive #308
San Rafael, CA 94903-4157
Attn: Community Development Agency Director
with copies to: Community Development Department
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Attn: Community Development Director
and: Town of'Tiburon
1505 Tiburon Boulevard
Tiburon, CA 94920
Attn: Town Attorney
and: Town of Tiburon
1505 Tiburon Boulevard
48
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Tiburon, CA 94920
Attn: Town Manager
Owner: Martha Co.
clo John W. Reed
405 Via Del Norte, Suite D
La Jolla, California 92037
with a copy to: Harison Bridgett LLP
80 E. Sir Francis Drake Blvd., Suite 3E
Larkspur, California 94939
Attn: Mary K. McEachron
Notices delivered by deposit in the United States mail as provided above shall be deemed to
have been served forty-eight (48) hours after the date of deposit; notices delivered by overnight
courier shall be deemed to have been served on the next business day. Copies of notices to
owner shall also be sent to other parties owning a portion of the Property who request to
receive copies of such notice in accordance with the provisions of Section 8.2, supra.
Section 12.5 Waivers. All waivers of the provisions of, this Agreement shall be in
writing and signed by the appropriate authorities of County and Owner.
Section 12.6 County Approvals and Actions. Whenever reference is made in this
Agreement to an action or approval to be undertaken by County,' the County Administrator or
the Administrator's designee is authorized to act on behalf of County, unless specifically
provided otherwise or the context requires otherwise.
Section 92.7 Severability. Except as otherwise provided herein, if any provision(s) of
this Agreement is (are) held invalid, the remainder of this Agreement shall not be affected and
shall remain in full force and effect unless amended or modified by mutual consent of the
parties.
Section 12.8 Section Headin s. Article and section headings in this Agreement are for
convenience only and are not- intended to. be used in.interpreting or construing the terms,
covenants, or conditions of this Agreement.
49
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Section 12.9 Entire Agreement. This Agreement is executed in multiple counterparts,
each of which is deemed to be an original. This Agreement consists of fifty-three (53) pages -
including the Recitals bdt, excluding the.cover sheet and table of contents - and six (6) exhibits,
.attached hereto and incorporated by reference herein, which together with the Existing
Approvals constitute the entire understanding and agreement of the parties. The exhibits,
shown with the section numbers at which they are described, are as follows:
Exhibit A Legal Description of Property Recital B
Recital B
Exhibit B Location Map for Easton Point Property Recital. E
Exhibit C 32-Unit Lower Density Alternative Plan Section 1.1
Exhibit D 2010 Judgment
Exhibit E Representation of Town of Tiburon re Health and Safety Review Section 1.7
Exhibit F Town of Tiburon's Consent.to Term of Development Agreement Section 2.2(d).
Section 12.10 Esto rml Certificate. Either party may, at any time and from time to time,
deliver .written notice to the other party requesting such party to certify in writing that, to the
knowledge of the certifying party: (a) this Agreement is in full force and effect and a binding
obligation of the parties; (b) this Agreement has not been amended or modified orally or in
writing, or if so amended, identifying- the amendments; and (c) the requesting party is not in
default. in the performance of its obligations under this Agreement, . or if in default, describing
therein- the nature and amount of any such defaults. The party receiving a request hereunder
shall execute and return such certificate or give a written, detailed response explaining why it
will not do so within thirty (30) days following the receipt thereof: Either the County
Administrator or the Community Development Agency Director of the County shah have the right
to execute any certificate requested by Owner hereunder. The County acknowledges that a
certificate hereunder may be relied upon by transferees and Mortgagees.
Section 12.11 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California without reference to its choice of laws
provisions.
50
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Section 12.12 Consistency with County Ordinance. The County warrants that each and
vision of this Agreement is consistent with, and not in conflict with, the County's
every pro
Development AgreeMArA Resolution.
Section 12.13 Recordation. Within ten (10) days after the Effective Date, the County
Clerk shall cause this Agreement to be recorded with the Marin -County Recorder. If the parties
to this Agreement or their successors-in-interest amend or cancel this Agreement as
hereinabove provided, the County Clerk shall have notice of such action recorded with the Marin
County Recorder.
Section 12.14 Definitions. The following defined terms are defined in the Recital or
Section indicated below:
Recital E
32-Unit L.DA
-Recital C
1976 Judgment
Recital C
2007 Judgment
Section 1.1
2010 Judgment
Introduction at p.1
Agreement
section 4.2(h)
Building & Landscape Envelope
Recital D
CEQA
Section 8.1
Compliance Notice
Introduction at P.1
County
Section 8.3(a)(iii)
Demand
Recital A
Development Agreement Legislation
K(5)
Recital
(5
Development Agreement Resolution
5.3
Section
Development Standards
Recital N
Effective Date
Recital D
EIR
.
ital 4(5)
R
Exceptions to Subdivision Standards
ec
Recital 8.3 a iu
Exchange ,
Recital M .
Existing Approvals
nd Tiburon Development Standards
l
Section
5 5.3
s a
Existing Approva
.1(e)
Section
HOA
Section 9.3
Insubstantial Amendment
Recital M(2)
Master Plan
Section 11.1
Mortgage
Section 11.1
Mortgagee
Recital F
MOU
51
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12/09
Section 8.1
Notice of Breach
Introduction at p.1
Owner
Recital M(4)
Precise Development Plan
section 4.20)
Private Open Space
Recital E
Project
Section 2.3(a)(i)
Project Approval
Recital B
Property
Section 2.4(b)
Remainder Lot
Section 4.2(i)
Residential Building Envelope
Recital M(1)
Rezoning
Section 2.4(a}
Subdivision Lots
Section 6.1
Subsequent Approvals
Section 6.1 (b)
Subsequent Discretionary Approvals
Section 6.1(a)
Subsequent Ministerial Approvals
Recital M(3)
Tentative Subdivision Map
Recital E
Town
Section 8.3(a)(iii)
Tribunal
Section 2.3(b)
Uncontrollable Event
Section 5.2.
Vested Elements
The term "County" as defined herein shall not be interpreted to include or reference the Marin
County Open Space District, which is a separate governmental entity.
[Signatures on following Pagel
52
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/17/09
IN WITNESS WHEREOF, this Agreement has been entered into by and between County
and Owner as of its Effective Date:
OWNER: MARTHA CO.,
a California corporation
By:
COUNTY: COUNTY OF MARIN,
a governmental entity duly organized and
existing under the laws of the State of
California
By:
Attest:
By:
APPROVED AS TO FORM:
Mary K. McEachron
Attorney for Martha Co.
Patrick K. Faulkner, County Counsel
APPROVED AS TO FORM:
Bv:
53
EXHIBIT 1 TO MEMORANDUM OF UNDERSTANDING
11/12109
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California, County of Maria, and described as
follows:
A Portion of the parceofland described in the Deed from Jessie O. Soilom, et con, to JR. Henify Company,
a corporation, by Deed recorded November 18, 1918 in Book 198 of Deeds at Page 463; Marie County
Records.
known as San Clemente). to Tiburon of the of that
Beginning at a point on the Westerly- line of Paradise Drive, (formerly
County Road,*also known as Tiburon Blvd. which point is the intersection ted States a America, recorded
certain tract of land containing 50 acres as 289 M ~ Cotie unty Records; oThe U thence along said Southeasterly Line
June 30, 1904 in Book 87 of Deeds at Page , said of said tract of land South 34° 15' East 1032.5 feet to the Southerly corner of said r 47 ct; he .Weleaving
400 feet
Southeasterly line and running South 34° 28 West 837 feet to a point; thence South
to the center of Yistazo East Streit and Centro
to a point; thence South 66° 02' East 2150 feet, more or less,
"Map No. 3 of Lyford's Hygeia
Vistazo Drive as said street and drive are shown ~ Caleed QTpc~enCO d August 23, 1894 in Mann County
(at Goddess of Health).at Tiburon Pont, M
Records; running thence South 71° 16' East 350 feet, more or less to the fr s sllynjne of F said Paradise di County
Drive; thence Northerly along said Westerly line as determined by Dee
grin recorded August 2, 1896 in Book 51. of Deeds at Page 363, Marin County Records, to the point of
of M
beginning.
Excepting therefrom the following certain parcels of. land:
(a) the parcel conveyed by John P. Reed, at of to Thomas -B. Deffebach by Deed recorded May 13, 1910 in
Book 128 of Deeds at Page 343, Mama County Records
(b) the parcel conveyed by Jessie 0. Sollom%.et vir, to Serena Thayer Keil, by Deed recorded September 18,
.
1915 in Bock t 73 of Deeds at Page 35, Marin County Records,
of Maria for highway purposes, by Deed
(c)'the parcel conveyed by.;: R. Henify Co., a corporation to County
recorded December 17, 1943 in Book 454 of Official Records at Page.398, Marin County Records.
(d) the parcel conveyed by Martha Co, a corporation to Marin Municipal Water District, a public corporation by Deed recorded July 6; 1976 in Book 3055 of Official Records at Page 142, Marin County Records.
(End of Legal Description)
EXHIBIT A
EXHIBIT B
m
Lyj
.!.'max - ~
• O
EXHIBIT C
. •11
i
y/ r
2010 Judgment
(to be inserted)
EXHIBIT D
REPRESENTATION OF TOWN OF TIBURON RE HEALTH & SAFETY REVIEW
The undersigned certifies on behalf of the-Town of Tiburon that the Town of
Tiburon has caused to be reviewed the Environmental Impact Analysis for the
Easton Point 32-Unit Lower Density Alternative and, in addition, has caused to
be conducted any and all additional reviews, studies, investigations, inquiries,
and analyses necessary to satisfy itself with respect to whether the Easton Point
32-Unit Lower Density Alternative as described in the Easton Point Final
Environmental Impact Report, including required mitigation measures C'32-Unit
LDA"), could result in conditions dangerous to health and safety. On such
bases, the Town has concluded that the 32-Unit LDA should not result in
conditions dangerous to health and safety.
TOWN OF TIBURON
By:
Name:
Its:
By:
Approved as to Form:
w
Ann R. Danforth
Town Attorney
EXHIBIT E