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CM Marin History Museum Lease TerminationORIGINAL LEASE TERMINATION AGREEMENT This Lease Termination Agreement ("Agreement") is entered into this 16th day of April, 2015, by and between the City of San Rafael, a California charter city (the "City" or "Landlord") and the Marin History Museum, a California non-profit public benefit corporation (the "Museum" or "Tenant") and. WHEREAS, City and Museum are parties to that certain "Lease Agreement Between the City of San Rafael and the Marin History Museum" dated April 15, 2002 (the "Lease"), pursuant to which City, as Landlord, leased to Museum, as Tenant, for a term of fifty-five (55) years, certain real property in the City's Boyd Memorial Park consisting of the historic "Boyd Gate House" and adjacent premises, all as more particularly described in Exhibits "A" and attached hereto and incorporated herein by reference (the "Premises"); and WHEREAS, pursuant to the Lease, Museum agreed to construct and operate a new museum building and related plazas, landscaped areas, parking area and tennis structure (collectively the "Improvements"), and to repair and maintain the Premises in good condition; and WIIEREAS, Museum has not constructed the Improvements, and presently has insufficient capital and operating fronds to provide for the required ongoing maintenance and repair of the Premises; and WHEREAS, in view of Museum's inability to perform its obligations under the Lease. the parties now desire to provide for the termination of the Lease, and the return of the Premises to City, prior to the current expiration date of the Lease. NOW, THEREFORE, in consideration of mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed as follow: 1. Termination. The parties agree that in lieu of the original expiration date of April 14, 2057. the Lease shall terminate on April 16, 2015 ("Termination Date"). 2. Lease Termination Fee. On or before the Termination Date, in consideration for City's release of Museum from its obligations under the Lease on the terms set forth in this Agreement, and in place of any other right or remedy of City pursuant to the Lease, Museum shall pay to City a Lease Termination Fee of Forty -Six Thousand Dollars ($46,000.00). Payment shall be by cashier's check made payable to the "City of San Rafael" and delivered to City's City Manager. 3. Surrender of Premises; Indemnification. On or before the Termination Date, Museum shall surrender the Premises to City, in broom -clean "as is" condition. Section 13.1 of the Lease shall continue in effect after the termination of the Lease, and shall govern Museum's surrender of the Premises to City, excetut that the Museum shall surrender the Premises and improvements in "as is" condition, and the Museum shall not be liable to the City for the City's costs to remove any alterations introduced with the City's prior consent. That provision reads as follows: 13.1 Surrender of Premises. On expiration of the term, or on termination of the term as provided in the Lease, the Museum shall surrender to the City the Premises and all the Museum's improvements thereon in good condition, except for ordinary wear and tear and except for alterations that the Museum has the right to remove. The Museum shall remove all its personal property within thirty (30) days following expiration or termination of the Lease. The Museum shall perform all restoration to the Premises made necessary by the removal of any alterations or the Museum's personal property within the time periods stated in this section. The City may elect to retain, or dispose of in any manner, any alterations or the Museum's personal property that the Museum does not remove from the Premises prior to expiration or termination of the term as allowed or required by this Lease by giving at least ten (10) days' notice to the Museum. Title to any such alterations or the Museum's personal property that the City elects to retain or dispose of on expiration of the ten (10) -day period shall vest in the City. The Museum waives all claims against the City for any damage to the Museum resulting from the City's retention or disposition of any such alterations or the Museum's personal property. The Museum shall be liable to the City for g, removing, and disposing of any alterations or the the City's costs for storin Museum's personal property. If the Museum fails to surrender the Premises to the City on expiration of the term as required by this section, the Museum shall defend, indemnify, protect and hold the City harmless from all damages, claims or liabilities resulting from the Museum's failure to surrender the Premises, including, without limitation, claims made by a succeeding tenant resulting from the Museum's failure to surrender the Premises. 4. Mutual Release. Except for the obligations of the Parties as set forth in this Agreement, the Parties. for themselves and their officers, employees, agencies, directors, shareholders, affiliates and respective successors and assigns, hereby frilly release and discharge each other, together with their respective officers, employees, agencies, directors, shareholders, affiliates and respective successors and assigns, from any and all claims, actions, causes of action, agreements, demands, contracts, covenants, obligations, duties, damages, losses, liabilities and expenses of whatever kind or nature, In law, equity or otherwise, whether known or unknown, suspected or unsuspected, anticipated or unanticipated, which each of the Parties have, had, or hereafter may have, directly or indirectly, arising out of, in connection with, relating to or concerning in any way the Lease. 5. Waiver of Civil Code, Section 142. Each Party understands and agrees that the Mutual Release in this Agreement extends to all claims of any nature and kind, known or unknown, suspected or unsuspected, anticipated or unanticipated, arising out of, in connection with, relating to or concerning in any way, the Lease and in that regard each Party acknowledges that its authorized representative has read, considered and understands the provisions and significance of Section 1542 of the California Civil Code, which reads as follows: SECTION 1542. GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Each Party understands and acknowledges that a risk exists that it incurred or suffered or may incur or suffer, loss or damages as a result of the matters, facts, events, occurrences, transactions, causes and things referred to in this Agreement which were unknown, unsuspected or unanticipated at the time this Agreement was executed. Each Party assumes this risk, and agrees that the foregoing release shall in all respects be effective and not subject to termination or rescission. EACH PARTY VOLUNTARILY, AND WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE, WAIVES AND RELINQUISHES ANY AND ALL RIGHTS THAT IT MAY HAVE UNDER SECTION 1542 AS WELL AS UNDER THE PROVISIONS OF ALL COMPARABLE, EQUIVALENT OR SIMILAR STATUTES AND PRINCIPLES OF COMMON LAW OR OTHER DECISIONAL LAW OF ANY AND ALL STATES OF THE UNITED STATES. 6. Final Agreement. This Agreement shall constitute the final agreement and understanding of the parties on the subject matter hereof. This Agreement may be modified only by a further writing signed by the parties. City and Museum each expressly acknowledge and state that they have consulted their respective attorneys of record herein concerning all portions of this Agreement and the mutual release set forth in paragraph 4 above, and have been fully advised by their own attorneys with respect to their rights and obligations hereunder. City and Museum each acknowledge that (1) this Agreement and its reduction to final form is the result of' extensive good faith negotiations between them through their respective counsel; (2) said counsel has carefully reviewed and examined this Agreement for execution by said parties; and (3) each of them has cooperated in the drafting and preparation of this Agreement and therefore any statute or rule of construction that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 7. Binding upon Successors and Assigns. This Agreement shall be for the benefit of and be binding upon, the parties hereto and their respective successors and assigns. 8. Attorney's Fees. If any legal action is commenced to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which the prevailing party may be entitled. 9. California Law; Illegality. This Agreement shall be governed by the laws of the State of California. In case any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been contained herein. 10. Authority to Execute Agreement. Museum expressly represents and warrants that its governing body has validly authorized the execution of this Agreement by the person signing below on Museum's behalf, and that this Agreement, as so executed, will be binding upon Museum. 11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the day and year first set forth above. l I1:7`►f17111JR0 City of San Rafael, a California charter city Nancy 94ackle City Manager Esther Beirne, City Clerk fflogt jqjFj a ffelffe-M L Lisa A. Goldfien, Ai .a— Asst. lty Attorney TENANT: Marin History Musc,;u""1i, a California non - prof t g�ublic b y„ O co ration zz By: Title: By: Title: ..._ u 4 1"Il . �,. Bank of Marin 1101 Fourth Street San Rafael, CA 94901 I 0;l' 7 ,�e `�" tars ■FORTY-SIX THOUSAND TWO HUNDRED NINETY-FOUR DOLLARS AND SEVENTEEN CENTS .......... Pay to the Order of: CITY OF SAN RAFAEL MARIN HISTORY MUSEUM Remitter 11 90-4187 Cashiers Check IT I CHECK NO. DATE 290000242 04116'2015 AMOUNT I*****$46, 294.17 DOLLARS NON-NEGOTIABLE CUSTOMER COPY d''IN 0:1!4p :G!11I D:13; 11! 9Ili"N V'li° v (. Vdq'i,.lh l: NVII $:Jj V .V"VPoIr&`. kld lFjNtalRK tl; 14 Nifl VVdGcll " !llM 14V p! hl !' l d E Iall v!1�IV " "3: iilNVN�"V l . 90-4187 Cashiers Check 121, Ak-'. Bank of Marin 1101 Fourth Street CHECK NO. 290000242 San Rafael, CA 94901 PPA ff rr �� DATE 04/16/2015 ?Ts AMOUNT 1 *****$46,294.17 ■FORTY-SIX THOUSAND TWO HUNDRED NINETY-FOUR DOLLARS AND SEVENTEEN CENTS DOLLARS Pay to the Order of: CITY OF SAN RAFAEL MARIN HISTORY MUSEUM Remitter 11'29000024211' 1: L 2 L L4 LEI 7 71: AUTHORIZED kGTHORIZEDS JNATURE 093000 511' Esther Beirne From: Nancy Mackle Sent: Friday, April 17, 2015 9:12 AM To: Carlene McCart; Esther Beirne; Mark Moses; Kevin McGowan; Leslie Blomquist; Richard Landis; Rob Epstein; Lisa Goldfien; Sarah Houghton Cc: Jim Schutz Subject: Marin History & Boyd Attachments: Marin History Payment for Lease Termination.pdf, Marin History Lease Termination.pdf Attached is a fully executed lease termination agreement with Marin History Museum for the Boyd Gate House. Also a copy of their check. Thanks to all that helped with this effort. Carlene has keys to the building and the alarm info. One original agreement will be filed with the Clerk and I will get the other mailed to MHM. The check is with Finance. Mark, Council has not taken formal action to assign this money to repairs at the Boyd Gate House, and it is not in our CIP yet, but that's where we are headed. So I would think we should create a Boyd Gate House project code so we can track these funds. But I leave that detail to you to sort out what's best in the accounting world. DPW and Carlene know this, but for the rest of you .... We have an idea about the most important work to be done on the building, but now that it is empty we (ie DPW) will need to get a more detailed inspection completed to see what the essential list is, and what the cost estimates are. The mold smell was pretty overwhelming when we walked through the building yesterday. We (ie Carlene and Richard) are also bringing our ADA consultant through to see what additional access work might be required. I will get this on an open Council agenda as soon as we have this information available. This is clearly a "money pit" and Council has not given direction regarding what level of investment we should put into the building—vs what to leave for a potential tenant ---nor have they deliberated about what to do with it in terms of a desired tenant. And on top of that, this is on the short list for the New Library site. So we have some collective work to do, and we just need to collect data and ideas now. Thanks Nancy Nancy Mackle City Manager 415-485-3070 0 Esther Beirne From: Nancy Mackle Sent: Thursday, April 16, 2015 6:07 PM To: Nancy Mackle Cc: Jim Schutz; Carlene McCart; Kevin McGowan; Leslie Blomquist; Mark Moses; Lisa Goldfien; Rob Epstein; Esther Beirne Subject: Boyd Gate House Dear City Council The Mayor, Carlene and I met Marin History at the Boyd House and the deal is done. We executed the lease termination agreement, got the keys and they gave us a check. Big kudos to the Mayor forgetting the $$ from this organization!! We have an idea about the most important work to be done on the building, but now that it is empty we will need to get a more detailed inspection completed to see what the essential list is, and what the cost estimates are. We are also bringing our ADA consultant through to see what additional access work might be required. I will get this on an open agenda as soon as we have this information available when the Council. Nancy Nancy Mackle City Manager 415-485-3070 Aug-1rP-O5 12=51P LEGAL DESCRIPTION Real property situate in the City of San Rafael, County of Marin, State of California, described as follows: Beginning at the Northwest corner of Hanson Sheet (now Mission Street) and B Street as said streets are shown on the plat of the Townsite of the Town of San Rafael, filed in the office of the County Recorder of Marin County on the 14'e day of October A.D. 1873: thence along the Westerly. line of said B Street, north 7* 13' East, 93:8 feet to the Northerly line of Sixth Street (now Mission Street); thence along the prolongation of said Westerly line of B Street, north 7* 13' East, 23.201 feet,, thence North 83° 03' West, 164.945 feet; thence North 61 57' Last, 26.00 feet; thence North 83° 03' West, 84.00 feet to a point on the Westerly line of the lands conveyed to the City of San Rafael by John F. Boyd et ux, by deed dated May 1, 1905, and recorded in Volume 92 of Deeds, Page 369, Marin County Records; thence along said Westerly line, south 6° 57' West, 143.00 feet to the Northerly line of said Hanson Street (now Mission Street); thence along the said Northerly line of Hanson Street (now Mission Street), South 83° 03' East, 248.4 feet to the point of beginning. Containing 31, 278.7 square feet. EXHIBIT "A" P_04 16_x5 3.2 ,`619 p,u'9 , ', , 0 �E- �a i w � . i `yam• •` - �, ,_ ,, +.++-•a��`� �.. ``,� ,i n, � t ly DRIVE AVENUe T �, i •,,• PLACE'` y MVS i., =�+ it2w �r. t .d • . :.` fir ,_1 �„ i i' ! Ma��'*StWo !Z ` MISSION A7. AVE- MIS$lON . " . - `. {� �;! i '�t,`:' ; '. i i ;� _ _.� •. ..f WX a .qUJ j uj Lu ul JUUA uj wl uj v 1 1 ii. ST 0.2 AA? -'5c 125 ..g, Sheet p4^116 Museum 00,51.-10 �Cp�_11 f GPA Mafno History City of San ?,?sale, ull