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Home My WebLink AboutPW Fire Station #57 Lease Agreement AmendmentFIRST AMENDMENT TO LEASE AGREEMENT THIS FIRST AMENDMENT TO LEASE AGREEMENT (First Amendment), is made and entered into this ~ day of December 2018, by and between the COUNTY OF MARIN, hereinafter referred to as "COUNTY", COUNTY SERVICE AREA 19 OF THE COUNTY OF MARIN, hereinafter referred to as "CSA", and the CITY OF SAN RAFAEL, hereinafter referred to as ''CITY". WHEREAS, the parties entered into a Lease Agreement dated June 21, 2016 (Lease) for the property where Fire Station #57 is located, more fully described in Paragraph 4 of the Lease Agreement (Property); WHEREAS, CITY is in the process of constructing a new Fire Station #57 on the Property (the ''Project"); WHEREAS, pursuant to Paragraph 1 of the Lease, the total project costs were estimated to be $12.0 million, with CITY to bear 54.0% of the project costs and all project costs in excess of$12.0 million, and CSA to bear 46.0% of the project costs, not to exceed $5,520,000; and WHEREAS, during construction CITY encountered unexpected site conditions at the Property owned by County as lessor that required additional City construction costs, which also delayed the Project; WHEREAS, the total additional costs of said Project are estimated to total at least $1,425,000; WHEREAS, the parties desire to work together to ensure timely completion of Fire Station #57 for mutual benefit and share in said additional costs. NOW THEREFORE, it is mutually agreed that the Lease shall be amended as follows: I. Paragraph 1 of the Lease shall be amended to increase the total estimated project budget from $12.0 million to $13.425,000 to reflect the unanticipated additional project costs; to increase the cap on the CSA's contribution from $5,520,000 to $6.175.500, and to reflect that CITY shall bear all project costs in excess of$13.425.000. 2. Except as expressly modified by this First Amendment, all other terms and conditions of the Lease, not specifically modified, amended or superseded herein, shall continue in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed by their duly authorized agents on the day and year first written above. CITY OF SAN RAFAEL ATTEST: LINDSAY LARA, City Clerk APPROVED AS TO FORM: 2 COUNTY OF MARIN and COUNTY SERVICE AREA 19 President of the Board of Supervisors ATTEST: Co unty Clerk APPROVED AS TO FORM: BRIAN WASHINGTON, County Counsel JENNA BRADY, Deputy County Counsel SETTLEMENT AGREEMENT AND RELEASE BETWEEN COUNTY OF MARIN, COUNTY SERVICE AREA 19, AND CITY OF SAN RAFAEL THIS SETTLEMENT AGREEMENT AND RELEASE (Agreement), is made and entered into this_£_ day of December, 2018, by and between the COUNTY OF MARIN, hereinafter refe1Ted to as "COUNTY", COUNTY SERVICE AREA 19 OF THE COUNTY OF MARIN, hereinafter referred to as "CSA", and the CITY OF SAN RAFAEL, hereinafter refen-ed to as "CITY". WHEREAS, the pm1ies entered into a Lease Agreement dated June 21, 2016 (Lease Agreement) for the prope11y where Fire Station #57 is located, more fully described in Paragraph 4 of the Lease Agreement (Property); WHEREAS, the Lease Agreement provides that CITY shall be responsible for the disposal of any hazardous materials placed on the Property by CITY or CITY's agents and that COUNTY shall be responsible for any other hazardous materials found on the Prope11y; WHEREAS, CITY is in the process of constructing a new Fire Station #57 on the Property; "VHEREAS, during construction CITY encountered unexpected site conditions that included inadequate soil conditions at the Property; WHEREAS, CITY estimates that the cost related to these unexpected site conditions, including site preparation and costs relating to delay, total approximately $1,425,000; and WHEREAS, the parties desire to work together to resolve this issue and ensure timely completion of Fire Station #57; NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS CONTAINED HEREIN, the pm1ies hereto do agree as follows: 1. COUNTY, by and through the CSA, shall increase the cap of $5,520,000 set fo11h in Paragraph l.D of the Lease Agreement by $655,500 for a new cap of $6,175,500 to contribute to the increased cost of the project due to soil conditions at the Property. The parties will reflect the increased cap through an amendment to the Lease Agreement, and COUNTY may request documentation or certification by City that City has incurred and paid additional and unexpected project costs, causing said project to total at least $13,425,000. 2. The parties understand and agree that the COUNTY's payment of any amounts pursuant to this Agreement are not to be construed as an admission of liability by COUNTY, its employees, agents or servants, by whom liability is expressly denied. 3. CITY agrees that for and in consideration of COUNTY' s increased contribution to the project pursuant to Paragraph 1 of this Agreement that CITY does hereby release, acquit and forever discharge COUNTY and CSA and its agents, servants and employees from any and all actions, causes of action, claims, demands, damages, costs, expenses, and compensation, on account of, or in any way growing out of, any and all known and unknown damages resulting or alleged to result from any and every aspect of the soil conditions at the Prope1iy that were discovered and remediated by CITY in 201 7, including, but not limited to, costs related to removal of the soil, delays, consulting, administration, testing and/or attorneys' fees. 4. In entering into this Agreement, and the release provided for herein, CITY expressly acknowledges and agrees that the release contained in this Agreement includes a waiver of all rights under Section 1542 of the California Civil Code. California Civil Code Section 1542 provides: 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 THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. CITY acknowledges that there is a risk that the damages it believes it has suffered, the claims it believes it holds, and other facts upon which it may be relying in entering into this Agreement, may later turn out to be other than, or different from, those now known, suspected or believed to be true. CITY acknowledges that in entering into this settlement and the release provided for in this Agreement, CITY expressly agrees to accept the risk of such possible unknown damages, claims, demands, actions, causes of action or issues of fact related to the soil conditions at the Property that were discovered and remediated by CITY in 2017, which the pa1iies agree shall not include any future soil conditions discovered at the Property unrelated to the 2017 soil conditions that are subject to Section 13 of the Lease Agreement. CITY acknowledges, represents and wmTants that in waiving all rights or benefits which any of it may have had under California Civil Code Section 1542, it has had the advice of counsel, and it fmiher represents, wmTants and agrees that this Agreement shall remain in full fore~ and effect, notwithstanding the occurrence of any such possible changes or differences in material fact. 2 5. Except as expressly set f011h herein, CITY and COUNTY agree that nothing contained in this Agreement alters or amends the terms of the Section 13 of the Lease Agreement entitled "Hazardous Materials" or the respective rights and obligations of the pai1ies pursuant thereto. IN WITNESS WHEREOF, the parties have executed and delivered this Agreement consisting of 3 pages, including signatures. Dated: \ i.. \ -S} 1.-o \ 'b Dated: ------ APPROVED AS TO FORM: Dated: /.2. / 4 /1 b- l l Dated: ------ COUNTY OF MARIN By: By: By: 3 Damon Connolly, President Board of Supervisors Jenna Brady, Deputy County Counsel County of Marin