HomeMy WebLinkAboutCC Resolution 9491 (Allardt's Canal Claim Settlement)RESOLUTION NO. 9491
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SAN RAFAEL
AUTHORIZING THE MAYOR TO EXECUTE
AN AGREEMENT TO SETTLE A TITLE DISPUTE
WITH HERBERT A CROCKER & COMPANY,
WILLIAM H. McDEVITT AND CAROL ANNE McDEVITT
(ARE.: ALLARDT' $ CANAL CLAIM1_
WHEREAS, the City of San Rafael is committed to redeveloping
the Canal area; and
WHEREAS, the City contends that it holds title to property
described as Trust Termination Parcel A in Exhibit A attached, in
trust for the public, subject to State supervisory and reversionary
interest; and
WHEREAS, Herbert A Crocker & Company, William H. McDevitt
and Carol Anne McDevitt contend, for various reasons that no City or
State interest exists in Trust Termination Parcel A; and
WHEREAS, it is in the best interests of the parties to resolve
their disputes by compromise settlement and to avoid costs, time
requirements and uncertainties of litigation.
NOW, THEREFORE BE IT RESOLVED, that the Mayor is hereby
authorized to execute, on behalf of the City Council, an agreement
whereby the City will quitclaim its interest in the Trust Termina-
tion Parcel A to Herbert A. Crocker & Company, William H. McDevitt
and Carol Anne McDevitt. Herbert A. Crocker & Company, William
H. McDevitt and Carol Anne McDevitt will quitclaim their interest in
a Pedestrian Access Easement, (described in Exhibit B attached) to
the City of San Rafael as trustee, pursuant to Chapter 83 of the
Statutes of 1923 and the State of California acting by and through
the State Lands Commission. Herbert A. Crocker & Company,
William H. McDevitt and Carol Anne McDevitt will also pay the City
of San Rafael the sum of Seventy-five Thousand Dollars ($75,000).
ORIO12INpL' ae�
NOW, THEREFORE BE IT FURTHER RESOLVED, that the City
Council of the City of San Rafael hereby authorizes the Mayor to
execute all additional documents necessary to implement the
agreement entered into under Resolution No. 9A91 including
the acceptance of quitclaim deeds.
I, JEANNE M. LEONCINI, City 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
City Council held on Monday, the 6.th_ day of NOVEMBER, 1995,
by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Phillips, Zappetini & Mayor
Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
__ __ ____/h
J NNE M. LEONCINI, City Clerk
1
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Recorded at Request of:
STATE OF CALIFORNIA
STATE LANDS COMMISSION
When Recorded Mail to:
State Lands Commission
100 Howe Avenue
Suite 100 South
Sacramento, CA 95825-8202
Attention: Fred Sledd
STATE OF CALIFORNIA OFFICIAL BUSINESS:
Document entitled to free recordation
pursuant to Government Code Section 6103
NO TAX DUE
AGREEMENT FOR THE SETTLEMENT OF A TITLE
DISPUTE WITHIN THE CITY OF SAN RAFAEL, COUNTY OF MARIN
AMONG HERBERT A. CROCKER & CO., WILLIAM H. MCDEVITT,
CAROL ANNE MCDEVITT, THE CITY OF SAN RAFAEL, AND
THE CALIFORNIA STATE LANDS COMMISSION
Instructions to the County Recorder of the County of Marin:
This document includes conveyances by parties to the agreement to
other parties to it. Please index this document as follows:
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-1-
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GRANTOR
City of San Rafael
State of California
by and through the
State Lands
Commission
Herbert A. Crocker &
Co., a California
Corporation; William
H. McDevitt and
Carol Anne McDevitt
Herbert A. Crocker &
Co., a California
Corporation; William
H. McDevitt and
Carol Anne McDevitt
GRANTEE
Herbert A. Crocker &
Co., a California
Corporation; William
H. McDevitt and
Carol Anne McDevitt
Herbert A. Crocker &
Co., a California
Corporation; William
H. McDevitt and
Carol Anne McDevitt
City of San Rafael
State of California
by and through the
State Lands
Commission
Agreement/Exhibit in
which Real Property
is Described
A
(Trust Termination
Parcel)
A
(Trust Termination
Parcel)
B
(Pedestrian Access
Easement)
B
(Pedestrian Access
Easement)
The parties to this Agreement, dated
1995, are the State of California, acting by and through the
State Lands Commission ("State"), the City of San Rafael
("City"), Herbert A. Crocker & Co., a California corporation,
William H. McDevitt, and Carol Anne McDevitt (collectively
"Private Party").
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R E C I T A L S
1. This Agreement concerns a parcel of real property
in the record ownership of Private Party in the City of San
Rafael, County of Marin, and referred to throughout this
Agreement as the "Trust Termination Parcel." The Trust
Termination Parcel is described in Exhibit A and is shown for
reference purposes on Exhibit C.
2. This Agreement also concerns a parcel of real
property in the City of San Rafael referred to herein as the
"Pedestrian Access Easement." It is described in Exhibit B and
shown for reference purposes only on Exhibit C. It is an
easement burdening the Trust Termination Parcel.
3. Exhibits A, B, and C are attached to this
Agreement, and incorporated as a part of it by this reference.
4. Upon its admission to the United States of America
on September 9, 1850, the State of California, by virtue of its
sovereignty, received in trust for the purposes of commerce,
navigation, and fisheries, title to all tide and submerged lands
within the boundaries of the State of California. The Private
Party asserts that the lands so received did not include tide and
submerged lands that had been granted into private ownership by
the prior sovereigns, Spain and Mexico.
5. In its last natural condition, all or part of the
Trust Termination Parcel lay within the bed of San Rafael Creek,
which was of the physical character of tide and submerged lands.
6. The State of California, by virtue of the Arkansas
Swamp Lands Act of September 28, 1850, received title from the
United States of America to certain swamp and overflowed lands
located within the State's boundaries.
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7. Pursuant to the Arkansas Swamp Lands Act and State
implementing statutes, certain lands along the San Rafael Creek
were included within the perimeter boundaries of swamp and
overflowed lands sales. These sales included Patents for Swamp
and Overflowed Survey Nos. 18 and 28, Marin County.
8. A portion of the Trust Termination Parcel was
included within the boundaries of Swamp and Overflowed Patents
for Survey Nos. 18 and 28.
9. In 1870, George Allardt surveyed the San Rafael
Canal within San Rafael Creek on behalf of the Board of Tide Land
Commissioners (BTLC). The San Rafael Canal as surveyed by
Allardt was thereafter reserved from sale to private individuals
so that it would provide a public channel for trade and
navigation. Allardt also surveyed and numbered blocks and lots
adjoining the San Rafael Canal. These lots are depicted on a
Board of Tide Land Commissioners map dated May 10, 1871, which is
titled "Map No. 2 of Salt Marsh and Tidelands Situate in the
County of Marin, State of California."
10. The San Rafael Canal as surveyed by Allardt
bisects the Trust Termination Parcel.
11. Subsequent to Allardt's survey of the San Rafael
Canal, certain of the lots along the Canal were sold by the BTLC
pursuant to Chapter 388, Statutes of 1869-70.
12. By Chapter 83, Statutes of 1923, the State of
California granted in trust to City all tide and submerged land,
whether filled or unfilled, within the boundaries of San Rafael
as those boundaries then existed. That statutory grant conveyed
any and all remaining sovereign title interests of the State of
California in the Subject Parcel, to be held by the City in trust
subject to the provisions of said statute. The City has held
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title to such lands pursuant to Chapter 83, Statutes of 1923, as
amended, and pursuant to the common law public trust, since that
time.
13. After substantial title research, the State and
the City contend that (without agreement by the Private Party as
to the arguments or facts in support of them):
A. A portion of the Trust Termination Parcel was
included within the perimeter description of Swamp and Overflowed
Patents for Survey Nos. 18 and 28, Marin County.
B. Any portion of the Trust Termination Parcel
included within the perimeter description of the Swamp and
Overflowed Patents which was, in its last natural condition,
below the line of high water is subject to a sovereign interest
held by the State and City in such portion despite its inclusion
within the perimeter description of a swamp and overflowed lands
sale.
C. The San Rafael Canal, including the reach of
it through the Trust Termination Parcel, was never sold into
private ownership by the State of California or by any other
government entity.
D. The portion of the Trust Termination Parcel
within the San Rafael Canal remains subject to sovereign
interests held by the City, subject to State reversionary or
supervisory interests.
14. For several reasons, the Private Party contends
that no State or City interests exist in the Trust Termination
Parcel (without agreement by the State or City as to the
arguments or facts stated in support of them):
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A. The State, pursuant to the Arkansas Swamp and
Overflowed Lands Act of 1850 and State statutory authority, has
identified and sold the Trust Termination Parcel by the Swamp and
Overflowed Patents referred to above and by the BTLC deed found
at Book I, Page 594, and/or Book J, Page 298 for the County of
Marin.
B. The Private Party or its predecessors in
interest have reclaimed the Trust Termination Parcel, as required
by law, and in accordance with law.
C. Any and all sovereign title held by the State
or City in the Trust Termination Parcel has been terminated by,
among other acts, the relocation of the San Rafael Canal by the
City and other governmental entities from the location surveyed
by Allardt to its present location.
D. The Private Party and its predecessors in
interest have paid all required real property taxes on the Trust
Termination Parcel.
E. The Private Party has held uninterrupted
record title to the Trust Termination Parcel by a purchase made
in 1957.
F. Private Party, since its purchase of the
Trust Termination Parcel in 1957 and until 1990, received no
notice of any claimed State or City interests in the Trust
Termination Parcel. No State or City interests were disclosed in
the initial title search or in policies of title insurance issued
to Private Party or to lenders.
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G. On two occasions in approximately 1960,
Private Party obtained City permits to build on the Trust
Termination Parcel, and City gave no notice of any title
interests it may have then claimed. Nor did the State.
15. The Trust Termination Parcel was filled above the
line of mean high tide by 1978.
16. A resolution of the parties' rights, titles, and
interests in the Trust Termination Parcel would require
protracted and vigorously disputed litigation if the controversy
could not be resolved by settlement.
17. It is in the best interests of the parties to
resolve their dispute by compromise settlement and to avoid the
anticipated substantial costs, time requirements, and
uncertainties of litigation.
18. In the interest of settlement, the State and City
have conducted a study and evaluation of the title evidence and
the principles of law and the merits of the legal positions of
the parties to the Agreement.
19. The Trust Termination Parcel has over the years
been subject to substantial artificial influences including, but
not limited to, filling, the building of structures, and other
improvements.
20. The result of these artificial processes has been
to obliterate evidence of the natural location of the tide and
submerged lands within or adjacent to the Trust Termination
Parcel, as well as to obscure the extent to which changes in the
Trust Termination Parcel are attributable to natural as opposed
to artificial processes. This has made the resolution of the
above -stated disputes substantially more difficult and uncertain.
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21. The consequent uncertainties as to the true
location, character, and boundaries of the tide and submerged
lands within or adjacent to the Trust Termination Parcel and the
existence of public trust interests are now impeding development
for either private or public use.
22. The public interest requires that the outstanding
title problems be resolved and forever laid to rest either
through lengthy, complex, and burdensome litigation, or through
agreement among the affected parties.
23. In order to avoid litigation of uncertain result,
the parties have, after extensive negotiation, decided that it is
in the best interest of all concerned to resolve this dispute as
follows:
A. The City, acting as trustee pursuant to
Chapter 83, Statutes of 1923, as amended, shall quitclaim to the
Private Party any and all sovereign interests in the Trust
Termination Parcel it may hold by virtue of that statute, as
amended.
B. The State shall quitclaim to the Private
Party any and all of the State's rights by virtue of its
sovereignty in the Trust Termination Parcel reserved to the State
by Chapter 83, Statutes of 1923, as amended.
C. The Private Party shall convey to the City a
public access easement in the Pedestrian Access Easement
described in Exhibit B. This easement shall be held by the City
as granted lands pursuant to Chapter 83, Statutes of 1923, as
amended, subject to the reversionary and supervisory rights of
the State. It is understood that the easement will be improved
for public access at the expense of the Private Party at the time
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of a renovation of the restaurant or improvement of the existing
decking.
D. Private Party shall pay to the City of San
Rafael the sum of $75,000 which shall be contributed to a fund
administered by the City for the acquisition of land in or along
the present San Rafael Canal, which property shall become subject
to the common law public trust and to Chapter 83, Statutes of
1923, as amended.
E. Private Party shall agree, as a covenant
running with the Trust Termination Parcel, that it shall continue
to allow free temporary mooring of vessels by the public on
water -covered lands north of the Trust Termination Parcel and
that it shall not further expand improvements into the existing
San Rafael Canal north of the Trust Termination Parcel without
prior authorization from the City and State.
24. The California Legislature has enacted
Chapter 1742 of the Statutes of 1971 to provide for the
settlement of title and boundary problems in the City of San
Rafael and to provide for the exchange of certain lands or
interests in lands which are currently located above the line of
mean high tide and which are no longer necessary or useful for
commerce, navigation, and fisheries.
25. In Section 2 of said Chapter 1742, the Legislature
found and declared that portions of the lands within San Rafael
Creek and Canal, as defined in that Chapter, have been improved
in connection with the development of San Rafael Creek and Canal
and in the process of such development have been filled and
reclaimed, and are no longer necessary or useful for commerce,
navigation, and fisheries.
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26. Chapter 1742 further provides that when such lands
have been filled, the City, upon receipt of such consideration as
is authorized in Chapter 1742, may by document, quitclaim or
conveyance, convey, release or quitclaim portions of such lands.
27. The State and City have determined that the
consideration provided by this Agreement to be received by the
City and State acting in their trust capacities is equal to or
exceeds the value of any and all sovereign interests in the Trust
Termination Parcel.
28. The State and City have determined that the
potential sovereign interest, if any, in the Trust Termination
Parcel, constitutes a relatively small parcel when considered in
connection with the reach and width of the entirety of the
San Rafael Canal and the San Pablo Bay to which it is tributary.
29. This Agreement will permit the Trust Termination
Parcel to be developed for private purposes and will provide the
City with funds to purchase real property to be used for the
purposes enumerated in Chapter 83, Statutes of 1923, as amended,
and the common law public trust for commerce, navigation and
fisheries. This Agreement will also insure public access along
the present San Rafael Canal. Access to the present San Rafael
Canal from Francisco Boulevard is already available through
properties adjoining the Trust Termination Parcel.
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A G R E E M E N T
In consideration of the foregoing recitals and the
mutual agreements contained herein, the parties agree as follows:
1. Citv's Ouitclaim of Trust Termination Parcel,. The
City, acting as trustee pursuant to the terms of Chapter 83,
Statutes of 1923, as amended, hereby quitclaims to each Private
Party according to its respective interest (50% to Herbert A.
Crocker & Co. and 50% to William H. McDevitt and Carol Anne
McDevitt) the real property described in Exhibit A hereto,
excepting the easement granted to the City in the Pedestrian
Access Easement described in Exhibit B hereto.
2. State's Ouitclaim of Trust Termination Parcel,.
The State hereby quitclaims to each Private Party according to
its respective interest (50% to Herbert A. Crocker & Co. and 50%
to William H. McDevitt and Carol Anne McDevitt) any and all of
the State's rights held by virtue of its sovereignty, or reserved
to the State by Chapter 83, Statutes of 1923, as amended, in the
real property described in Exhibit A hereto, excepting the
interest it has in the Public Access Easement described in
Exhibit B hereto.
3. Private Partv's Grant to City of Pedestrian Access
Easement. Private Party hereby grants to City an easement for
public pedestrian access in the Public Access Easement described
in Exhibit B. Said easement is to be held and administered by
the City as a property right subject to Chapter 83, statutes of
1923, as amended.
4. Private Partv's Grant to State of Riqhts Reserved.
to the State in the Public Access Easement,. Private Party grants
to the State those supervisory and reversionary rights in the
Public Pedestrian Easement described in Exhibit B of this
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Agreement reserved to the State of California by Chapter 83,
Statutes of 1923, as amended.
5. Pleasure Boat Harbor Covenant. Private Party
covenants that it shall allow the water -covered land in its
record ownership north of the Trust Termination Parcel to be used
by the general public for temporary berthing of recreational
vessels and not to expand the facilities lying below the existing
and future line of mean high tide without the permission of the
State and City first had and obtained. This covenant shall be
for limited purposes and shall run with the Trust Termination
Parcel and benefit public land within the present San Rafael
Canal according to the following provisions:
(a) It shall apply to pleasure boats only;
(b) There is to be no overnight or semi-permanent
berthing;
(c) The area subject to the covenant is not to be
used for boat -repair purposes;
(d) There are to be no loud noises or other
nuisances;
(e) Children shall not be permitted to play in
the dock areas; and
(f) There is to be no swimming in the dock areas.
6. Repair and Maintenance of Improvements. Private
Party shall be responsible for the upkeep, repair, maintenance,
and the regulation of the free use of the lands subject to the
preceding paragraph, by the public and patrons of the restaurant
that is presently located on the Trust Termination Parcel as a
covenant running with the Trust Termination Parcel and
benefitting public land within the present San Rafael Canal.
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7. State Lands Commission Approvals. The STATE, upon
execution and recordation of this Agreement and pursuant to State
Lands Commission Calendar Item No. 47 (approved by the State
Lands Commission at its March 1, 1995 meeting), hereby:
A. Finds and declares, pursuant to and in
accordance with Section 2 of Chapter 1742 of the Statutes of
1971, that the Trust Termination Parcel has heretofore been
improved in connection with the development of San Rafael, and in
the process of such development has been filled and reclaimed, is
no longer below the present line of mean high tide, and is no
longer necessary or useful for commerce, navigation, or
fisheries, or for such uses or trusts as are or have been imposed
by the statutory grants of tide and submerged lands from the
State of California to the City and is hereby freed from such
statutory and common law trusts.
B. In accordance with Sections 5, 6, and 7 of
Chapter 1742 of the Statutes of 1971, approves this Agreement and
the conveyances provided for herein and approves the conveyance
to Private Party of all of the sovereign right, title, and
interest of the State and City.
C. In accordance with Sections 5, 6, and 7 of
Chapter 1742, Statutes of 1971, approves the conveyance by the
City in its trust capacity to Private Party of all right, title,
and interest of the City held by virtue of Chapter 83, Statutes
of 1923, as amended, in the Trust Termination Parcel, excepting
the Public Access Easement.
D. Further finds and declares that the
consideration to be placed in an account and to be held in trust
by City for the purchase of land pursuant to this Agreement and
the real property interests acquired hereunder have a value
equivalent to or exceeding the value of the interests of the
State and City being conveyed to Private Party in the Trust
Termination Parcel and approves the adequacy of the consideration
as determined by the City and State with respect to the
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settlement provided for herein, in accordance with Sections 5, 6
and 7 of Chapter 1742 of the Statutes of 1971.
E. Finds and declares that this Agreement will
permanently preserve public pedestrian access along the present
waterfront of the San Rafael Canal.
F. Finds and declares that the provisions of
Section 8.5, Chapter 1742, Statutes of 1971, shall not apply to
the Trust Termination Parcel. The reason for this is that the
application of Section 8.5 would prevent the settlement of this
title dispute, which settlement is in the public interest.
8. Private Partv Pavment of Monev to Land Bank Fund.
Private Party will pay $75,000 to the City which shall be
deposited by the City in the land bank fund account which has
been created by joint instructions from the City and the State.
These funds are to be released from the account only upon the
joint instruction of the City and the State for the purchase of
land in the City of San Rafael which is useful for public trust
purposes. Any property so purchased will be held as public trust
lands granted to the City pursuant to Chapter 83, Statutes of
1923, as amended. These funds are to be deposited with the
Escrow Agent as provided for in paragraph 12, who shall hold them
in an interest-bearing account pending the close of Escrow, at
which time the City shall deposit them in the land bank fund
account.
9. No Chanae in Ownership. The conveyances provided
for in this Agreement are solely for the purposes of perfecting
title to real property and do not represent a change of ownership
as that term is defined in section 62(b) of the California
Revenue and Taxation Code or any other applicable law.
Additionally, no transfer tax shall be charged, assessed, levied
or collected from the private party as a result of the
implementation of this Agreement.
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10. Effective Date of Aareement. This Agreement will
become effective upon its execution by all parties and its
recordation. Should this Agreement not be recorded by November
1, 1995, or by such later date as may be agreed to by the parties
in writing, any party may terminate this Agreement by giving
thirty (30) days' written notice of intent to do so to all other
parties.
11. Prohibition Aaainst Sales and Encumbrances., Upon
execution of this Agreement, neither the City, State or Private
Party shall sell, transfer, assign, mortgage, pledge or
hypothecate, whether by operation of law or otherwise, any of
their respective rights, title, or interests in or to the Trust
Termination Parcel prior to the recording of this Agreement.
12. Escrow and Recordation. An escrow shall be opened
in the offices of California Land Title Company of Marin (Escrow
Agent), 700 Irwin, Suite 100, San Rafael, California 94901. The
parties agree to deposit the following documents in the escrow
account:
A. Deposits by Parties:
(1) State shall deposit the following
documents:
(a) A letter with the seal of the
State Lands Commission embossed upon it
stating that the State Lands Commission
approved this Agreement at its March 1,
1995, meeting and that the Commission
authorized its execution on the
Commission's behalf;
(b) This Agreement, duly and properly
executed by it;
(2) City shall deposit the following
documents:
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(a) A certified copy of a resolution
of its City Council approving this
Agreement and authorizing its execution
on City's behalf and
(b) This Agreement, duly and properly
executed by it;
(3) Private Party shall deposit the
following documents:
(a) This Agreement, duly and properly
executed by them and
(b) A cashier's.or certified check in
the face amount of $75,000.00 and
payable to "the City of San Rafael as
trustee pursuant to Chapter 1742 of the
Statutes of 1971."
13. Judicial Confirmation. Within ten (10) days of
their execution of this Agreement, Private Party shall give
written notice to the escrow and to State and City whether it
intends to file an action in the Superior Court of the County of
Marin pursuant to the provisions of Chapter 1045, Statutes of
1989, for the purpose of securing a judicial determination of the
validity of this Agreement. If it so elects, the escrow shall
not record this Agreement until Judgment has been entered
validating this Agreement and the right of appeal has been waived
or terminated by the lapse of time. If Private Party fails to
give notice of election to seek judicial confirmation, the escrow
shall record this Agreement when the other pre -conditions to
closing have been met. If the election is made, an action under
Chapter 1045 must be brought within 30 days of full execution of
this Agreement. Otherwise, the Agreement shall be recorded by
the Escrow Agent, go into effect as provided herein, and any
party may subsequently, if it wishes, bring a validation action
under Chapter 1045.
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14. Recordation. Upon the receipt of all the
documents listed in paragraph 12 of this Agreement and the
written approval of all parties to this Agreement of the
condition of title to the Trust Termination Parcel and the Public
Pedestrian Easement as shown in Pro forma title commitments and a
certified copy of a judgment if one was secured through a
confirmation lawsuit, Escrow Agent, if it has not received a
written objection by a party hereto to the closing of escrow,
shall notify the parties of its intention to close escrow and to
record this Agreement and any related documents and shall set a
date certain for such recordation and closing. At 8:00 a.m., or
as early as possible on the date chosen for the close of escrow,
Escrow Agent shall record this Agreement in the Office of the
County Recorder for the County of Marin, California. Escrow Agent
shall then release the $75,000.00 check to the City of San
Rafael.
15. Terms and Covenants. The terms, provisions and
conditions contained in this Agreement are covenants that run
with the land and shall be binding upon and inure to the benefit
of the parties and each of them and their heirs, successors and
assigns.
16. No admissions made. This agreement is one of
compromise. Accordingly, the parties agree that none of its
provisions constitutes, or shall be construed as, an admission
concerning the boundaries, physical character, or character of
title to or interests in any waters or lands outside of the area
of the subject parcel. The parties also agree that nothing
contained in this Agreement shall be admissible in any litigation
other than litigation to enforce or validate its provisions.
17. Counterpart Oriainals. This Agreement may be
executed in any number of counterparts, and each of these
executed counterparts shall have the same force and effect as the
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original instrument and as if all of the parties to the aggregate
counterparts had signed the same instrument, upon execution by
all parties.
18. Acknowledgements. In the execution of this
Agreement, each party shall furnish such acknowledgements and
certifications as may be necessary to duly and properly record
this Agreement in the Office of the Recorder of the County of
Marin, California.
19. Additional Documentation. The parties shall
execute, acknowledge, and deliver such additional documents or
instruments as may be necessary to record this Agreement.
20. California Law. This Agreement is to be deemed
entered into in the State of California and shall be construed
and interpreted in accordance with the laws of the State of
California.
21. Allocation of Costs and Expenses. Private Party
shall bear any expenses and fees associated with the escrow and
the recordation of this Agreement. All other fees, costs, and
expenses for any attorney, engineer, or other person employed or
retained by a party in connection with the Agreement shall be
borne by that party.
22. No Effect Upon Other Government Jurisdiction.
This Agreement has no effect whatsoever on the regulatory,
environmental, or other jurisdiction of any federal, state,
local, or other government entity.
23. Gender. As used herein, whenever the context so
requires, the neuter gender includes the masculine and feminine
and the singular gender includes the plural and vice -versa.
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Defined terms are to have their defined meaning regardless of the
grammatical form or number of such terms.
24. Advice of Counsel. In entering into this
Agreement, the parties represent that they have relied upon the
legal advice of their attorneys who are the attorneys of their
choice. The parties further represent that the terms of this
Agreement have been completely read by and explained to them by
their attorneys, and that they fully understand and voluntarily
accept those terms.
25. Construction. Each party and counsel for each
party has reviewed and revised this Agreement, and accordingly,
the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
26. Acceptance of Conveyances and Consent to
Recordinq. By their execution of this Agreement, the parties
each authorize acceptance of and accept the conveyances of each
other party. Further, the parties consent to the recordation of
this Agreement and the conveyances in it by their execution
below.
27. Entire Agreement. This Agreement contains the
entire agreement between the parties with regard to the matters
set forth. This Agreement may be amended or modified only by an
Agreement in writing executed in the same manner as this
Agreement, with the exception of an Agreement to extend the date
by which it is to be fully executed and recorded (November 1,
1995) .
28. Releases. The parties and each of them release
and forever discharge each other, and the past and present
officers, commission members, directors, employees (as the case
8/15/95 -19-
may be) of each other from any and all claims, demands,
obligations, and causes of action of whatever nature, whether
known or unknown, which arise out of or in any way relate to the
matters resolved in this Agreement. In this connection, the
parties expressly waive any right they may have under the
provisions of California Civil Code section 1542, which reads as
follows:
A general release does not extend to claims
which the creditor does not know or suspect
to exist in his favor at the time of
executing the release, which if known by him
must have materially affected his settlement
with the debtor.
8/15/95 -20-
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year set forth below:
APPROVALS AS TO FORM
COUNSEL FOR STATE
DATED: rqc'� �— , 1995
COUNSEL FOR CITY OF SAN RAFAEL
DATED: 5 1995
COUNSEL FOR HERBERT A. CROCKER
& CO., WILLIAM H. McDEVITT,
and CAROL ANNE McDEVITT
DATED:
, 1995
8/15/95 -21-
DANIEL LUNGREN
Attorney General of the State
of California
BY'rEPH
RUSCONI
torney General
�®r"z
By:
VARY T.
City Atton
TI
WASHBURN, BRISCOE & MCCARTHY
A Professional Corporation
By:
JOHN BRISCOE
RECEIPT OF THE ESCROW INSTRUCTIONS
Receipt of this Agreement as constituting escrow
instructions is acknowledged.
DATED: , 1995 By:
CALIFORNIA LAND TITLE
COMPANY OF MARIN
8/15/95 -22-
EXECUTION
BY STATE OF CALIFORNIA
STATE OF CALIFORNIA ACTING BY
AND THROUGH THE STATE LANDS
COMMISSION
DATED: , 1995 By:
ROBERT C. HIGHT
Executive Officer
ACKNOWLEDGEMENT
STATE OF )
COUNTY OF )
On before me,
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.
8/15/95 -23-
EXECUTION
BY THE CITY OF SAN RAFAEL
THE CITY OF SAN RAFAEL
/
DATED: �/� �j , 1995 By:' AJC
ALLE T J.. ORO
Mayor
ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF MARIN
On November 8, 1995 before me, JEANNE M. LEONCINI, NOTARY PUBLIC,
personally appeared ALBERT J. BORO, 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.
JEANNE M. LEONCIM
COMM.0952490
z Nomy Pdit-- Cawma
41ARIN COUNTY
My .omm. EWkft JAN 1Z1W$
WITNESS my hand and official seal.
8/15/95 —24—
STATE OF CALIFORNIA )
) ss.
COUNTY OF SACRAMENTO )
IN APPROVAL WHEREOF, I, PETE WILSON, Governor of the
State of California, have set my hand and caused the Seal of the
State of California to be hereunto affixed pursuant to section
6207 of the Public Resources Code of the State of California.
Given under my hand at the City of Sacramento, this day of
in the year of our Lord One Thousand Nine Hundred and
Ninety-five.
By:
Governor
STATE OF CALIFORNIA
[Seal] ATTEST:
By:
SECRETARY OF STATE
8/15/95 -25-
EXECUTION
PRIVATE PARTY
Herbert A. Crocker & Co.,
a California corporation
DATED: September 11 , 1995 By:
HERBERT A. ROCKER
President
ACKNOWLEDGEMENT
STATE OF California )
COUNTY OF Marin )
On September 11, 1995 before me, Jennifer A. Craig. appeared
Herbert A. Crocker , 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.
8/15/95 -26-
WITNESS my hand and official seal.
MINiFER A. CKM1G
T
� �1\\
C0411,4. #1020013
NOTARY PUBLIC•CALII ORNIA
a
MARW GOuNTY
j
`C.
My Comrr. Dp res Nor 13 1998
v v
TQC C. /
v
v v v v
8/15/95 -26-
EXECUTION
PRIVATE PARTY
"Y DATED: , 1995 By: /.(�'/'i/_-GL.t%a
FILLIAM H. McDEVITT
ACKNOWLEDGEMENT
STATE OFL�,� )
4 )
COUNTY OF /14J,:-1_.-7
)
On �:%ty7� f > S'` before me, ��,� _4:. � r—
�1 ' �• �: �� �'�� �s �. 7L 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.
`JpFt 1 ^ DAVID A. FARki
COMM. #985187
r e NOTARY PUBLIC - CALIFORNIA " /
MARIN COUNTY `' i Lti'.✓ t��L �(�"\
+� My Comm. Expires Mar. 29, 1997
„ — — — — — — `
1C:\WPPAM\AEM\SLCAGR3.831
9/5/95 —27—
MAY-j1-ub WED 1u;bI
DATED:
d1LL P-'ILVIII
STATE OF CALIFORNIA
COUNTY OF MARIN
rhA Nu. JJLJ-i' +
.- ()
1995 By:
CAROL ANNE McDEVITT
Acknowledament
ss.
i
r. ue
On June 1, 1995 before me, Jennifer A_
Craiq personally appeared
CAROL ANNE McDEVITT, 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.
r b( ^ ^� JENNIFER A. CRAIG D
,,..,
Q ri4: �r COMM. #1020083
I��s
NOTARY PUBLIC -CALIFORNIA 0
Y MARIN COUNTY
My Comm. Cxppres Mar 13. 1998 '1
5/19/95 -21-
EXHIBIT "A"
W 24558
LAND DESCRIPTION
(TRUST TERMINATION PARCEL)
That certain real property situate in the City of San Rafael, County of Marin, State of
California, described as follows:
A portion of that parcel of land described in the deed to William H. McDevitt, recorded
August 5, 1960, in Book 1388 Official Records at page 316, Marin County Records.
COMMENCING at a point on the southerly line of the San Rafael Canal, conveyed to
the City of San Rafael, recorded March 3, 1920 in Liber 211 of Deeds at Page 389,
Marin County Records, said point is situated on the easterly line of that parcel
conveyed to the City of San Rafael, recorded December 19, 1913 at Liber 155 Deeds
at Page 445, Marin County Records, said point also being the northwesterly corner of
said McDevitt parcel (1388 Deeds 316), thence from said point along the easterly
line of said City of San Rafael parcel (155 Deeds 445), South 11 ° 55' West (South
11 ° 45' West in said McDevitt deed) 12.79 feet to the waterward face of the existing
wooden Bulkhead, also being the northerly line of the herein described Trust
Termination Parcel and the POINT OF BEGINNING; thence South 110 55' West
534.69 feet continuing along said easterly line to a point in the northeasterly line of the
San Rafael Canal as shown on Record of Survey, filed May 14, 1974, in Book 12
Official Surveys at page 25, Marin County Records, entitled "RESURVEY OF THE
SAN RAFAEL CANAL AS SHOWN ON "MAP NO. 2 OF THE SALT MARSH AND
TIDELANDS SITUATE IN THE COUNTY OF MARIN" AS ORIGINALLY SURVEYED
UNDER THE DIRECTION OF G. F. ALLARDT IN 1870"; thence continuing along said
easterly line South 11 ° 55' West 110.88 feet to a point in the southwesterly line of said
Allardt's Survey of San Rafael Canal (12 OS 25), thence continuing along said
easterly line South 110 55' West 63.34 feet to a point in the northeasterly line of
Francisco Boulevard, as said northeasterly line is described in the document to the
State of California, recorded July 24, 1950 in Liber 658 of Official Records at Page 76
and in the McDevitt deed exception (1388 Deeds 316), and the northeasterly line of
Francisco Boulevard as shown on Parcel Map of Lands of Dexter, recorded January 8,
1986, Book 23 of Parcel Maps at Page 2, Marin County Records, thence along said
northeasterly line of Francisco Boulevard, South 530 10' 35" East 147.26 feet (South
530 00' 30" East 147.09 feet in said McDevitt deed exception 1388 Deeds 316) to the
the southwesterly corner of Parcel One as described in the deed to George H. Dexter,
Jr., et ux, recorded in Book 2594, Official Records, Page 169, Marin County Records,
said corner being also the southwesterly corner of Record of Survey "Lands of
Dexter', filed July 18, 1988, in Book 24 of Surveys at Page 79, Marin County, thence
along the westerly line of said Parcel One North 11 ° 50' East 22.34 feet (North 11 °
45' East in said McDevitt deed 1388 Deeds 316) to the southwesterly line of said
TRUST TERMINATION PARCEL—CONTINUED
Allardt's Survey of San Rafael Canal (12 OS 25); thence continuing along said
westerly line North 110 50' East 100.15 to the northeasterly line of said Allardt's
Survey of San Rafael Canal, thence continuing along said westerly line North 11 ° 50'
East 589.01 feet to the waterward face of the existing wooden Bulkhead; thence
leaving said westerly line, along the waterward face of said Bulkhead North 780 03'
West 92.72 feet; thence North 130 00' East 58.38 feet; thence North 76° 41' West
40.92 feet to the point of beginning.
Basis of Bearings is the same as that Record of Survey, filed July 18, 1988, in Book 24
of Surveys at Page 79, Marin County Records.
Said Trust Termination Parcel is subject to a Pedestrian Access Easement as
described in Exhibit "B" of this agreement.
END OF DESCRIPTION
EXPIRES
8o-8
OpC�A
FaP
2
sic 8/31/95
EXHIBIT "B"
W 24558
LAND DESCRIPTION
(PEDESTRIAN ACCESS EASEMENT)
That certain real property situate in the City of San Rafael, County of Marin, State of
California, said property being a six (6) foot strip, the exterior described as follows:
A portion of that parcel of land described in the deed to William H. McDevitt, recorded
August 5, 1960, in Book 1388 Official Records at page 316, Marin County Records.
COMMENCING at a point on the southerly line of the San Rafael Canal, conveyed to
the City of San Rafael, recorded March 3, 1920 in Liber 211 of Deeds at Page 389,
Marin County Records, said point is situated on the easterly line of that parcel
conveyed to the City of San Rafael, recorded December 19,1913, at Liber 155 Deeds
at Page 445, Marin County Records, said point also being the northwesterly corner of
said McDevitt parcel (1388 Deeds 316), thence from said point along the easterly
line of said City of San Rafael parcel (155 Deeds 445), South 11 ° 55' West (South
11 ° 45' West in said McDevitt deed) 12.79 feet to the waterward face of the existing
wooden Bulkhead and the POINT OF BEGINNING; thence along the waterward face
of said Bulkhead, South 760 41' East 40.92 feet, thence South 130 00' West 58.38
feet, thence South 780 03' East 92.72 feet to the westerly line of Parcel One as
described in the deed to George H. Dexter, Jr., et ux, recorded in Book 2594, Official
Records, Page 169, Marin County Records, said line also being the westerly line of
Record of Survey of the "Lands of Dexter", filed July 18, 1988, in Book 24 of Surveys
at Page 79, Marin County Records, thence along said westerly line , leaving the
waterward face of the existing wooden Bulkhead, South 11 ° 50' West (South 11 ° 45'
West in said McDevitt deed 1388 Deeds 316) 6.00 feet, thence leaving said westerly
line North 780 03' West 98.84 feet, thence North 130 00' East 58.52 feet, thence North
760 41' West 34.81 feet to a point in the easterly line of said City of San Rafael parcel
(155 Deeds 445), thence along said easterly line North 11 ° 55' East (North 11 ° 45'
East in said McDevitt deed) 6.00 feet to the point of beginning.
Basis of Bearings is the same as that Record of Survey, filed July 18, 1988, in Book 24
of Surveys at Page 79, Marin County Records.
END OF DESCRIPTION
sic 8/31/95 '
Cv " o.,
EXFfR S
8- 9E
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