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ED 750 Grand Avenue Settlement & Release Agr.SETTLEMENT AND RELEASE AGREEMENT This SETTLEMENT AND RELEASE AGREEMENT (this "Agreement") is made and entered into as of 2016 (the "Effective Date"), by and between the MARIN AUTO GROUP ("Tenant"), and the CITY OF SAN RAFAEL, a California municipal corporation ("Purchaser"). Tenant and Purchaser may collectively be referred to as the "Parties." RECITALS A. Tenant is the current subtenant in possession of land and improvements located at APN 014-132-10, commonly known as 750 Grand Avenue, San Rafael, California, 94901, as more specifically described on Exhibit A ("Property"). B. Purchaser desires to purchase the Property, in order to construct the Grand Avenue Improvement Project (the "Project"). C. Purchaser's relocation agent has been assisting Tenant with relocation from the Property pursuant to California's Relocation Assistance Act and the federal Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, and any other relocation assistance under federal law, federal regulations, state law, state regulations and the City's relocation guidelines (collectively "Relocation Acts"). D. Tenant contents that it is entitled to compensation from the Purchaser for loss of business goodwill as a result of the Purchaser's acquisition of Tenant's interests in the Property. E. On August 15, 2016, Purchaser adopted a Resolution of Necessity authorizing the acquisition of the Property by eminent domain for the Project. F. In lieu of proceeding with eminent domain proceedings for the acquisition of the Property, the Parties desire to enter into this Agreement. IT IS HEREBY MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS: 1. Obligations of Purchaser. Within thirty (30) days of the Effective Date of this Agreement, Purchaser will deliver to Tenant a check made out to Marin Auto Group, in the amount of $80,000 ("Payment"). The Payment includes, but is not limited to, Tenant's payment pursuant to the Relocation Acts of $40,000. 2. Obligations of Tenant. 2.1 Simultaneously as receiving the Payment from Purchaser, Tenant will deliver an executed Tenant Waiver and Release, in the form of Exhibit B, to Purchaser and to Stewart Title Company, C/O Jackie Boccabella, at 300A Drake's Landing Rd., Suite 100, Greenbrae, CA 94904. OAK #4840-1898-2457 v 2.2 Tenant agrees to vacate the Property on or before November 1, 2016. Any personal property or improvements remaining on the Property after November 1 may thereafter be disposed of by Purchaser. 2.3 Waiver of Pror)ertv Rights and Interests. Tenant for itself and for its agents, successors and assigns fully releases, acquits and discharges Purchaser and its officers, officials, council members, employees, attorneys, accountants, other professionals, insurers, and agents, and all entities, boards, commissions, and bodies related to any of them (collectively, the "Released Parties") from all claims that Tenant, its agents, successors and assigns has or may have against the Released Parties arising out of or related to Purchaser's acquisition of the Property and the grant of any right -of -entry, including, without limitation, all of Tenant's property rights and interests in the Property, including but not limited to (i) any improvements, including improvements pertaining to the realty, furniture, fixture, and equipment, (ii) business goodwill and lost income (past or future) relating to the Property, (iii) lost income, (iv) relocation benefits pursuant to the Relocation Acts and/or any other relocation obligations, (v) severance damages, if any, (vi) economic or consequential damages, (vii) professional consultant fees and attorney's fees and costs, and (viii) all other costs, and any and all compensable interests, and/or damages, and/or claims, of any kind and nature, claimed or to be claimed, suffered or to be suffered, by Tenant, its agents, successors and assigns by reason of Purchaser's acquisition of the Property, provided that nothing herein shall release Purchaser from any liability resulting from Purchaser's breach of any agreement, warranty, or covenant for which it is responsible under this Agreement. 2.4 Waiver of Civil Code Section 1542. Tenant, on behalf of itself and its agents, successors and assigns, expressly waives all rights under Section 1542 of the Civil Code of the State of California ("Section 1542"), or any other federal or state statutory rights or rules, or principles of common law or equity, or those of any jurisdiction, government, or political subdivision thereof, similar to Section 1542 (hereinafter referred to as a "Similar Provision"). Thus, Tenant and its agents, successors and assigns, and any business, enterprise, or venture in which they are involved, may not invoke the benefits of Section 1542 or any Similar Provision in order to prosecute or assert in any manner the matters released in Section 2.3 above. Section 1542 provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING TF Ili RELEASE, WHICH IF KNOWN BY HIM OR HER MUST I [AVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Tenant's Initials: �m 3. Right to Enter Unon Land. Tenant hereby grants to Purchaser and its agents and employees a license to enter upon the Property during the term of this Agreement for the purpose of conducting feasibility studies and physical examinations of the Property, including soils and environmental tests. Purchaser shall not unreasonably interfere with Tenant's use of the Property. OAK 94840-1898-2457 v 4. Authority. Each party executing this Agreement on behalf of Tenant represents and warrants that such person is duly and validly authorized to do so on behalf of Tenant. 5. Survival. Any covenants, agreements, and indemnifications that this Agreement does not require to be fully performed prior to Tenant's vacation of the Property shall survive this Agreement and shall be fully enforceable. 6, Waiver. Consent and Remedies. Each provision of this Agreement to be performed by Purchaser and Tenant shall be deemed both a covenant and a condition and shall be a material consideration for Tenant's and Purchaser's performance hereunder, as appropriate, and any breach thereof by Purchaser or Tenant shall be deemed a material default hereunder. Either party may specifically and expressly waive in writing any portion of this Agreement or any breach thereof, but no such waiver shall constitute a further or continuing waiver of a preceding or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require further compliance by the other party with any breach or provision so waived. The consent by one party to any act by the other for which such consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or any similar acts in the future. No waiver or consent shall be implied from silence or any failure of a party to act, except as otherwise specified in this Agreement. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement shall be cumulative and no one of them shall be exclusive of any other. Except as otherwise specified herein, either party hereto may pursue any one or more of its rights, options or remedies hereunder or may seek damages or specific performance in the event of the other party's breach hereunder, or may pursue any other remedy at law or equity, whether or not stated in this Agreement. 7. Attorneys' Fees. In the event any declaratory or other legal or equitable action is instituted between Tenant and Purchaser in connection with this Agreement, then as between Purchaser and Tenant, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses, including court costs and reasonable attorneys' fees, and all fees, costs and expenses incurred on any appeal or in collection of any judgment. 8. Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by reputable overnight courier, or sent by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if mailed, three business days after the date of posting by the United States post office; or (iii) if delivered by Federal Express or other overnight courier for next business day delivery, the next business day. Notice of change of address shall be given by written notice in the manner described in this Section. Rejection or other refusal to accept or the inability to deliver because of a change in address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Unless changed in accordance herewith, the addresses for notices given pursuant to this Agreement shall be as follows: OAK x'4840-1898-2457 v1 If to Tenant: MAG Auto Group Inc. 2196 American Avenue Hayward, CA 94545 Attention: Peter Mozaffari If to Purchaser: City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 Attention: Thomas Adams Telephone: (415) 485-3134 With a copy to: Burke, Williams & Sorensen, LLP 181 Third Street, Suite 200, San Rafael, CA 94901 Attention: Benjamin Stock Telephone: (415) 755-2605 9. Default. Failure or delay by either party to perform any covenant, condition or provision of this Agreement within the time provided herein constitutes a default under this Agreement. The injured party shall give written notice of default to the party in default, specifying the default complained of. The defaulting party shall immediately commence to cure such default and shall diligently complete such cure within ten days from the date of the notice. The injured party shall have the right to terminate this Agreement by written notice to the other party in the event of a default which is not cured within such ten-day period. 10. Interpretation. In this Agreement (unless the context requires otherwise), the masculine, feminine and neuter genders and the singular and the plural shall be deemed to include one another, as appropriate. The words "include" and "including" shall be interpreted as though followed by the words "without limitation." This Agreement shall be interpreted as though jointly prepared by both parties. 11. Entire Agreement. This Agreement and its exhibits constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the terms and conditions thereof. All prior agreements, representations, negotiations and understanding of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein. 12. Captions. The captions used herein are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof. 13. Governing Law. This Agreement and the exhibits attached hereto have been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California without reference to its choice of laws rules. 14. Invaliditv of Provision. If any provision of this Agreement as applied to any party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way effect (to the maximum extent permissible by law) any other provision of this Agreement, the application of any such provision OAK 44840-1898-2457 v under circumstances different from those adjudicated by the court, or the validity or enforceability of this Agreement as a whole. 15. Amendments. No addition to or modification of any provision contained in this Agreement shall be effective unless fully set forth in writing by Purchaser and Tenant. 16. Counterparts. This Agreement may be executed in any number of identical counterparts and each counterpart shall be deemed to be an original document. All executed counterparts together shall constitute one and the same document, and any counterpart signature pages may be detached and assembled to form a single original document. This Agreement may be executed by signatures transmitted by facsimile, adobe acrobat or other electronic image files and these signatures shall be valid, binding and admissible as though they were ink originals. 17. Time of Essence. Time is of the essence of each provision of this Agreement. 18. Binding Ui)on Successors. The terms and conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties hereof. 19. Offer. Any delivery of unsigned copies of this Agreement is solely for the purpose of review by the party to whom delivered, and neither the delivery nor any prior communications between the parties, whether oral or written, shall in any way be construed as an offer by Purchaser or Tenant, nor in any way imply that Purchaser or Tenant is under any obligation to enter the transaction which is the subject of this Agreement. The signing of this Agreement by Tenant constitutes an offer which shall not be deemed accepted by Purchaser unless and until this Agreement has been executed on behalf of Purchaser by its City Manager or his/her designee after adoption of a resolution or minute action by the City Council of the City of San Rafael. Tenant agrees that this offer shall be acceptable and cannot be revoked for a period of 30 days following presentation by Tenant. 20. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the fust day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in sections 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time. 21. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees. or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. OAK 44840-1898-2457 v1 22. Cooperation. Eachparty agrees to cooperate with the other in the closing of this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement. 23. Reservation of Citv's Right to File Suit. Tenant understands and acknowledges that if for any reason this Agreement is terminated, Purchaser expressly reserves its rights to bring an action in the Superior Court of the State of California, County of Marin, pursuant to the requirements set forth in the eminent domain statutes of the State of California. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. TENANT: MARIN AUTO GROUP By: Name: Its: Date io , io PETER MOZ By: Date Ick, i31 ![o OAK #4840-1899-2457 v PURCHASER: CITY OF SAN RAFAEL, a California municipal corporation By: Name: Its: Date: Approved as to form. .XRE5 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY OAK 44840-1898-2457 vl EXHIBIT "A" DESCRIPTION FEE ACQUISITION APN: 014-132-10 All that land as deeded to Harold Geister and Aurelia Gelster in Instrument Number 91-07185 of Official Records, recorded February 4, 1991, Marin County Recorder's Office, said land referred to herein is located in the City of San Rafael, County of Marin, State of California, more particularly described as follows: Beginning at the Northwest corner of said land as deeded to Harold Geister and Aurelia Geister, said corner lying along the easterly right of way line of Grand Avenue; thence S 15°05'46"W 192.09 feet along said easterly right of way line, said easterly right of way line being coincident to the westerly of said land deeded to Geister, to the Southwest comer thereof, said Southwest comer lying along the northerly line of a 100 foot wide right of way for San Rafael Canal; thence S74°46'36"E 45.20 feet along the southerly line of said land, said southerly line being coincident to said northerly line of San Rafael Canal, to the Southeast corner of land thereof; Thence N08140'53"E 196.09 feet along the easterly line of said land to the Northeast corner thereof; thence N81 °27'06"W 23.45 feet along the northerly line of land thereof to the point of beginning. END OF DESCRIPTION Basis of Bearing: The easterly line of Grand Avenue which bears NI5°05'46"E as per Record of Survey filed in Book 12 of surveys, at Page 27, Marin County Records. The property described herein is shown on the attached plat, Exhibit B, and by this reference made a part thereof. \ANAL LANA\ oSP tiL0 ZsGp` a v o 0 No. B 4T � IZ ,F EXP i7 X4 7 11176 02/13/2015 OF CALSF���\P - LASZL-O ZOL-D, P S #8 -2 -47 - LICENSE EXPIRES: 12/31/2015 F:\' Iccd\11176 Grand Avenue Bridge\survey\RW Dedtcc11ons\l 1176_R'N Desc. 014-132-10 .doc Pagel of I Siegfried Engineering, irc. EXHIBIT B TENANT WAIVER AND RELEASE PETER MOZAFFARI and VICTORIA MOZAFFARI ("Tenant"), for themselves and for their agents, successors and assigns, fully release, acquit and discharge MICHAEL GEISTER and JOAN G. JOHNSON, Co -Trustees of The Geister Family Trust of 1991 (aka The Second Amended Geister Family Trust of 1991) and the City of San Rafael and its officers, officials, council members, employees, attorneys, accountants, insurers, and agents, and all entities, boards, cominissions, and bodies related to any of them from any and all claims, actions, demands, liabilities or costs ("Claims") arising out of or related to the City of San Rafael's acquisition of 750 Grand Avenue, San Rafael, California (the "Property") for the Grand Avenue Improvement Project (the "Project"), including, without limitation, Claims for compensation, business goodwill and lost income (past or future), relocation costs or benefits, severance damages, economic or consequential damages, and other Claims of any kind and nature, claimed by Tenant, its agents, successors and assigns, by reason of the City of San Rafael's acquisition of the Property. In connection with this Waiver and Release, Tenant expressly waives all rights under California Civil Code Section 1542, which provides that: 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. `%/'n V M (Tenants' Initials) TENTMOZ Dated PETARI Dated VI&bRIA M1aZAFFARI 6" Exhibit B