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HomeMy WebLinkAboutCC Resolution 9643 (50 Grove St Easements)RESOLUTION NO. 9 6 4 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING EXECUTION OF AGREEMENT TO GRANT EASEMENTS AND QUITCLAIM CERTAIN RIGHTS (50 GROVE STREET). BE IT RESOLVED by the Council of the City of San Rafael as follows: WHEREAS, The City of San Rafael and Marin County Open Space District have determined the need to resolve encroachments on land owned jointly by the City and District; and WHEREAS, it has been determined that certain encroachments consisting of an orchard, a driveway, a retaining wall, and part of a garage preexisted ownership by City and District of its land commonly referred to as APN 12-251-08; and WHEREAS, the encroached property has never been used for open space purposes nor has it been dedicated as such under the Public Resources Code; and WHEREAS, the owners, the City and the District have agreed to resolve the encroachments by entering into an Agreement to Grant Easements and Quitclaim Certain Rights and said Agreement is beneficial to the needs of the City of San Rafael; and WHEREAS, City staff has recommended the Agreement to be entered into as being beneficial to the management of the remainder property by the City. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Vice San Rafael that the/Mayor is hereby authorized to enter into and execute said Agreement on behalf of the City of San Rafael. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on the 15`h day of July, 1996, by the following vote, to wit: AYES: COUNCILMEMBERS: Heller, Miller, Phillips & vice -Mayor Cohen NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Mayor Boro JEANAt M. LEON , City Clerk �R�Gi�Al a e�' Recording Requested By And When Recorded Return To: Robert J. Begley Attorney at Law 271 Miller Avenue Mill Valley, CA 94941 AP #s 12-221-10,12-221-11, 12-251-08 96-039693 i t-l� STAMP CONFIRPIS �cbJRDING DATA ONLY JUL 23 14. fi SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT TO GRANT EASEMENTS AND QUITCLAIM CERTAIN RIGHTS This DECLARATION OF AGREEMENT INCLUDING GRANT OF EASEMENTS (called "Agreement" herein) is entered into by and among MARIN COUNTY OPEN SPACE DISTRICT (called the "District" herein), the CITY OF SAN RAFAEL (called the "City") and JAMES F. DOWLING and JUDITH A. DOWLING (called the "Dowlings" herein) with reference to the following facts: A. The Dowlings are the record title holders of Marin County Assessor's Parcel Numbers 12-221-10 and 12-221-11 (called "The Dowlings' Parcel"). B. The City and the District are the record title holder of Marin County Assessor's Parcel Number 12-251-08 (called "the Open Space Parcel"). Located within the Open Space Parcel, approximately 12.2 feet from the southern boundary of the Dowlings' Parcel, is a retaining wall (called the "Retaining Wall"). C. Prior to the acquisition of the Open Space Parcel by the City and the District, while the Open Space Parcel was still owned by a private individual, the Dowlings' predecessor in interest acquired certain prescriptive rights in and to a portion of the Open Space Parcel near the boundary between the two parcels. D. In April of 1995, the Dowlings and their predecessor in interest presented evidence of their prescriptive interest in and to the Open Space Parcel, which evidence has been carefully examined and considered by legal counsel for both the City and the District. E. The City and District agree to grant easements over their land to the Dowlings to resolve the Dowling's encroachments and prescriptive rights referenced herein, and in consideration therefore the Dowlings agree to quitclaim all their right, title and interest to the underlying fee ownership to the City and District lands referenced herein. F. The parties desire by this Agreement to clarify and formalize the exact extent of the Dowlings' interest in the Open Space Parcel, and to set forth certain obligations COPY EASEMENT AGREEMENT PAGE 1 of the Dowlings with respect to their interest in the Open Space Parcel and the improvements thereon, all as more fully set forth below. THEREFORE, in consideration of their mutual covenants and agreements, the parties agree as follows: 1. Building, Driveway and Retaining Wall Easement: The City and the District hereby quitclaim to the Dowlings a permanent exclusive easement for ingress and egress, and for maintenance and use of existing improvements over all of that certain real property more specifically described as follows: Beginning at the southeasterly corner of Parcel B, as shown on that certain Survey as filed for record April 23, 1971, in Volume 10 of Official Surveys, at page 29, Marin County Records, thence along the southerly property line of said Parcel B, N 83'15'01" W, 74.62 feet (Record N 83' 15' West); thence leaving said property line S 44°41'27" E, 22.46 feet; thence parallel with the southerly property line of Parcel B, S 833* 15'01" E, 57.06 feet (Record S 83' 15" E) to a point on the westerly right-of-way line of Grove Street; thence N 06°45'00" E, 14.0 feet to the point of beginning. 2. Orchard Area Easement: The City and the District hereby quitclaim to the Dowlings a permanent easement for landscaping and for maintenance and use of existing improvements, to wit, fencing and irrigation system, over all of that certain real property more specifically described as follows: Beginning at the westerly terminus of the southerly line of Parcel B, as shown on that certain Survey as filed for record April 23, 1971, in Volume 10 of Official Surveys, at page 29, Marin County Records, thence along the westerly property line of said Parcel B, N 06°45'00" E, 100.00 feet; thence N 83'14'58" W, 31.00 feet (Record N 83 ° 15' W); thence leaving said property line S 08039'25" W, 41.37 feet; thence S 07°23'47" W, 56.93 feet; thence S 80° 15'56" E, 33.06 feet to the point of the beginning. 3. Release and Hold Harmless: The Dowlings hereby, on behalf of themselves and their heirs, successors and assigns, release the City and the District of and from any and all liability which may arise in the future fi-om acts, omissions or circumstances which occur on the parcels described in Paragraphs 1 and 2 above and agree to indemnify and hold the City and the District harmless from any third party claims for any injuries or property damage arising out of or connected to the said described parcels. 4. Dowlings' Ouitclaim: Save and except for the easements granted herein, the Dowlings hereby quitclaim to the City and the District all of their right, title and interest in the underlying fee title to that certain real property referred to above as "the Open Space Parcel" acquired by the City in deed recorded November- 17, 1976, in Book 3114 at Page 588 EASEMENT AGREEMENT PAGE 2 Marin County Records and subsequent rerecordings; and by deed to the District recorded April 21, 1978, in Book 3362 at Page 119 Marin County Records. 5. Maintenance of Retaining Wall: The owners of the Dowlings' Parcel shall have the obligation, in perpetuity, to maintain in good and safe condition and repair, the Retaining Wall. The Dowlings hereby, on behalf of themselves and their heirs, successors and assigns, release the City and the District of and from any and all liability which may arise in the future from the failure of the Retaining Wall, and agree to indemnify and hold the City and the District harmless therefrom. The owners of the Dowlings' Parcel shall further have the obligation, in perpetuity, to reimburse the City and/or the District for any expense incurred to remedy any damage to the Open Space Parcel as the result of any failure of the Retaining Wall. 6. Sole and Only Agreement: This Agreement, including the Exhibits, constitutes the entire agreement between the parties and there are no representations, warranties or commitments except as set forth herein. This Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether written or oral, of the parties hereto, relating to the transactions contemplated by this Agreement. No reliance upon or waiver of one or more provisions of this Agreement shall constitute a waiver of any other provision hereof. Nothing in this Agreement is intended or shall be construed to confer upon or to give any person other than the parties hereto, and their successors and assigns, any rights or remedies under- or by reason of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and said counterparts shall together constitute one and the same Agreement, notwithstanding that all of the parties are not signatory to the original or same counterpart. For all purposes, including, without limitation, recordation, filing and delivery of this Agreement, duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document. The enumeration and headings of the paragraphs of this Agreement are merely for convenience of reference and do not constitute representations or warranties, do not impose any obligations whatever and have no substantive significance. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Proper venue for the resolution of any dispute arising hereunder- shall be the Superior Court of the County of Marin, State of California. 7. Amendments: This Agreement cannot be changed, modified, or amended in any way, except by an instrument in writing signed by all the parties. Except as expressly provided herein, this Agreement shall have no effect upon any recorded easement or other document of title to any real property. 8. Binding on Heirs and Assigns: This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assigns, and personal representatives of the parties. EASEMENT AGREEMENT PAGE 3 9. Attorneys Fees for Enforcement: In the event that it is necessary to employ coun- sel to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover from the losing party all costs of suit, including reasonable attorneys fees. Executed this/ 7Vday of James F. Dowling THE CITY OF SAN RAFAEL Paul M. Cohen, Vice -Mayor Attest: Jeai�e M. Leoncini, City Clerk STATE OF CALIFORNIA ) ) SS. COUNTY OF MARIN ) 1996, at Marin County, California. Judith A. Dowling MARIN COUNTY OPEN SPACE DISTRICT rj:�, Board irectors Attest: Secretary ` On / % k.� " *' ( , 1996, before me, the undersigned, a Notary Public in and for said State, personally appeared James F. Dowling, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the salve in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. KAREN K EOWb� vv Cam /1083875 ROTARY M� aCA"10 A 1 y V My Comm. Ema Nb. 5.2000 �0. "r ,, Notary Public EASEMENT AGREEMENT PAGE 4 STATE OF CALIFORNIA ) ) SS. COUNTY OF MARIN ) On 111--t 'JC' , 1996, before me, the undersigned, a Notary Public in and for said State, personally appeared Judith A. Dowling, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ¢ KAREN K. MAE Carrrt� f 083875 S NOTARY PUBLIC1- CALIFORNIA ` 1 M' comm �xa..sc0 �eV 5.2000 STATE OF CALIFORNIA ) ) SS. COUNTY OF MARIN ) Notary Public On 1996, before me, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public EASEMENT AGREEMENT PAGE 5 STATE OF CALIFORNIA ) ss. COUNTY OF MARIN ) On June 6, 1996, before me, the undersigned Notary Public, personally appeared HAROLD C. BROWN, JR., personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. "• • ' JENNIFER WALTER COMM. # 980282 z e Notary Public — California n t; b; SONOMA COUNTY MV Comm. Expires JAN 22. 1997 }�^.'Y'•.1er.,'V• .,y ..�y. ...y.",V•'Y Wo,,y W' :y.,,�y `t NOTARY PUBLIC in and for said County and tate STATE OF CALIFORNIA ) ) SS. COUNTY OF MARIN ) On %Li 1,'-r I -2 , 1996, before me, a Notary Public in and for said State, personally appeared PA Lf L .M . G o N ( n/ , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/sxecuted the same in his/her -authorized capacity, and that by his/het-signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. r NANCY EURMAN D d .�� W - EASEMENT AGREEMENT COMM. 81066576 NOTARY PUBLIC -CALIFORNIA 0 ♦ ,. MAHIN COUNTY 1 My Comm. L11,'4, -11 Notary Public PAGE 6 Expires Feb. 4, 2000 L11,'4, -11 Notary Public PAGE 6 BOARD OF DIRECTORS MARIN COUNTY OPEN SPACE DISTRICT RESOLUTION NO. 96-06 RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT TO GRANT EASEMENTS AND QUITCLAIM WHEREAS, MARIN COUNTY OPEN SPACE DISTRICT AND THE CITY OF SAN RAFAEL have determined the need to resolve encroachments on land owned jointly by City and District; and WHEREAS, it has been determined that certain encroachments consisting of an orchard, a driveway, a retaining wall, and part of a garage preexisted ownership by City and District of its land commonly referred to as APN 12-251-08; and WHEREAS, the encroached property has never been used for open space purposes nor has it been dedicated as such under the Public Resources Code; and WHEREAS, the owners, the City and the District have agreed to resolve the encroachments by entering into an Agreement to Grant Easements and Quitclaim Certain Rights and said Agreement is beneficial to the needs of the MARIN COUNTY OPEN SPACE DISTRICT; and WHEREAS, District staff has recommended the Agreement to be entered into as being beneficial to the management of the remainder property by the District; and NOW, THEREFORE, BE IT RESOLVED that the President of this Board of Directors is hereby authorized to enter into and execute said Agreement on behalf of the MARIN COUNTY OPEN SPACE DISTRICT. PASSED AND ADOPTED at a regular meeting of the Board of Directors of the Marin County Open Space District this 4thday of June 1996, by the following vote: AYES: DIRECTORS Harry J. Moore, Annette Rose, John B. Kress, Harold C. Brown, Jr. NOES: DIRECTORS None ABSENT: DIRECTORS Gary Giacomini ATTEST: SECRETARY ffiPREMD /NT, Bo q i'lectors