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HomeMy WebLinkAboutCM Marin History Museum Boyd Gate House Use Agreement____________________________________________________________________________________ FOR CITY CLERK ONLY Council Meeting: 09/02/2025 Disposition: Resolution 15451 Agenda Item No: 4.c Meeting Date: September 2, 2025 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: City Manager’s Office Prepared by: Bernadette Sullivan Senior Management Analyst II City Manager Approval: ______________ TOPIC: MARIN HISTORY MUSEUM BOYD GATE HOUSE USE AGREEMENT SUBJECT: RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A USE AGREEMENT FOR REAL PROPERTY AT 1125 B STREET (BOYD GATE HOUSE) WITH THE MARIN HISTORY MUSEUM; CEQA DETERMINATION: EXEMPT PURSUANT TO CEQA GUIDELINE 15061(b)(3) RECOMMENDATION: Staff recommends that the City Council adopt the resolution authorizing the city manager to execute a use agreement for real property at 1125 B Street (Boyd Gate House) with the Marin History Museum. BACKGROUND: The Marin History Museum (MHM) serves as the leading historical resource for Marin County. MHM curates a collection of more than 20,000 artifacts and 200,000 photographs, oral histories, and scholarly resources. It plays a central role in preserving and sharing Marin County’s history while enriching the City’s public initiatives through its programs and materials. MHM offers a range of exhibits celebrating notable Marin residents, organizes community events, and provides access to both online and on-site research materials. The Museum’s efforts to represent and promote Marin’s history represent a valuable contribution t o our community. In addition, MHM has partnered with the City on several projects requiring historical research, including access to archival photographs and documentation. From 2002 to 2015, the City leased the Boyd Gate House at 1125 B Street to the Marin History Museum (MHM). During that time, MHM offered the public a variety of exhibitions and educational programs celebrating the innovation, creativity, and traditions of Marin County residents. In 2015, the City repurposed the Boyd Gate House for internal use by the Economic Development Department and the Sustainability Division. City staff remained in the building until 2021, when they were relocated to City Hall following the completion of the Public Safety Center. Later in 2021, the City reestablished its partnership with MHM through a new lease agreement. The Museum resumed operations at the Boyd Gate House. In early 2025, following the expiration of the Marin History Museum’s lease and its transition to a month- to-month arrangement, the Museum formally approached the City to request financial relief. Recognizing SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 MHM’s strong record as a dependable tenant, the significant cultural and educational benefits they provide to the community, and the City’s established practice of utilizing similar agreements with other organizations, staff engaged with MHM to explore replacing the existing lease with a more flexible Use Agreement. The proposed agreement reflects the collaborative nature of the relationship, expands MHM’s programming to include public activities at Falkirk Mansion, and reaffirms the City’s commitment to cultural enrichment, education, and downtown revitalization. Staff believes this approach will continue to benefit the community, preserve an important cultural partnership, and conserve City resources by avoiding the need to identify and transition to a new tenant. ANALYSIS: The proposed Use Agreement establishes a non-possessory license for the Marin History Museum (MHM) to continue operations at the Boyd Gate House for a term of three years, with the option to extend for three additional one-year terms based on mutual satisfaction and agreement to terms. The agreement may also be reviewed at any time by either party. This structure provides flexibility, promotes long -term planning, and allows the City to revisit the terms as needs evolve. In exchange for rent-free use of the Boyd Gate House, MHM will provide a wide range of public benefits to the City and its residents. These include: •Installation of a quarterly exhibit of images from MHM’s collection that reflect San Rafael's history at City Hall. •Inclusion of at least one public event about San Rafael’s history in MHM’s annual Speaker Series, to be held at the San Rafael Public Library. •Assistance provided to the City in creating content for brochures, signage, and other civic collateral. •Waiver of usage fees for archival images from MHM’s collection used for City civic projects. •Creation of a tri-fold flyer for a self-guided tour of the Falkirk Mansion to be distributed at the site. •Creation of a virtual plaque tour similar to the one in the City of Petaluma, where visitors use mobile phones to scan QR codes, accessing webpages with historic content; this may include San Rafael landmarks and the interior of the Falkirk Mansion. •Coordination with designated City staff regarding matters related to MHM operations at the Boyd Gate House. MHM will operate as a self-governing, non-profit organization and will provide its own personnel and volunteers to produce programs, services, and activities. The Museum is solely responsible for all supplies, materials, equipment, custodial services, computers, telephones, and utilities used in its operations. The agreement also requires MHM to provide an annual report to the City by March 1st detailing activities conducted over the previous year, as well as a copy of its regularly prepared annual financial statement. This model strengthens the City’s long-standing partnership with MHM while reducing financial and operational burdens. It ensures public access to cultural programming, promotes local history, supports downtown activation, and advances the City’s strategic goals without requiring rent or ongoing City SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3 staffing. At the same time, it preserves the City’s authority to adjust use of the space as needed and protects City interests through insurance, indemnity, and audit provisions. ENVIRONMENTAL DETERMINATION: The approval of this Use Agreement is exempt from the California Environmental Quality Act ("CEQA") pursuant to section 15061(b)(3) of the State CEQA Guidelines because it can be seen with certainty that there is no possibility that the approval or implementation of this Use Agreement would have a significant effect on the environment (14 Cal. Code Regs. Section 15061(b)(3)). FISCAL IMPACT: Under the prior lease agreement, the City received $14,400 annually in rent from the Marin History Museum, which goes to the Community and Economic Development Budget. With the transition to a Use Agreement, the City will no longer receive rental income for the use of the Boyd Gate House. MHM will cover its own operational expenses. While this agreement does not provide direct revenue, the value is realized through increased public programming, preservation of local history, and enhanced community engagement. OPTIONS: The City Council has the following options to consider on this matter: 1.Adopt the Resolution to Approve the Use Agreement between the City and the Marin History Museum. 2.Reject the Use Agreement with directions to staff for revision. 3.Reject the Use Agreement. RECOMMENDED ACTION: Staff recommends that the City Council adopt the resolution authorizing the city manager to execute a use agreement for real property at 1125 B Street (Boyd Gate House) with the Marin History Museum. ATTACHMENTS: 1.Resolution 2.Use Agreement RESOLUTION NO. 15451 RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A USE AGREEMENT FOR REAL PROPERTY AT 1125 B STREET (BOYD GATE HOUSE) WITH THE MARIN HISTORY MUSEUM WHEREAS, the City of San Rafael desires to support cultural programming, promote local history, and strengthen partnerships with community-based organizations; and WHEREAS, the Marin History Museum (MHM) has long served the community by providing historical exhibits, events, and resources, including programs located at the Boyd Gate House; and WHEREAS, from 2002 to present, the City has leased, from time to time, to MHM, a portion of the Boyd Gate House, with the most recent tenancy subject to the “Lease Agreement between the City of San Rafael and the Marin History Museum” dated July 1, 2021, (referred to as the “Lease”); and WHEREAS, the parties desire to terminate the Lease in favor of a City Use Agreement, which provides greater flexibility to adjust to changing conditions, and which is the type of contractual arrangement the City favors with other community partners; and WHEREAS, City staff and MHM have negotiated the terms of a Use Agreement establishing a non-possessory license for MHM to continue operations at the Boyd Gate House for a term of three (3) years, with the option to extend for three (3) additional one-year terms upon mutual agreement; and WHEREAS, in exchange for rent-free use of the Boyd Gate House, MHM will provide a wide range of public benefits to the City and its residents, including but not limited to: •Installation of a quarterly exhibit of images from MHM’s collection reflecting San Rafael’s history at City Hall; •Inclusion of at least one public event about San Rafael’s history in MHM’s annual Speaker Series, to be held at the San Rafael Public Library; •Assistance in creating content for brochures, signage, and other civic collateral; •Waiver of usage fees for archival images from MHM’s collection used for City civic projects; •Creation of a tri-fold flyer for a self-guided tour of the Falkirk Mansion; •Creation of a virtual plaque tour with QR codes linking to webpages with historic content related to San Rafael landmarks and the Falkirk Mansion; and WHEREAS, the Use Agreement requires MHM to operate as a self-governing nonprofit organization responsible for its own staffing, supplies, and operations, and to provide annual reports to the City detailing programming and financial statements; and WHEREAS, the Use Agreement further protects City interests through provisions regarding insurance, indemnity, and audit rights; and WHEREAS, the City Council of the City of San Rafael finds that approval of this Use Agreement advances the City’s strategic goals by ensuring public access to cultural programming, promoting downtown activation, and reducing financial and operational burdens on the City; and WHEREAS, the City finds that the Use Agreement is exempt from review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guideline 15061(b)(3). NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES RESOLVE: The foregoing recitals are true and correct and the City Manager, or their designee, is hereby authorized to execute the Use Agreement on behalf of the City of San Rafael and to take all actions necessary to implement its terms. I, LINDSAY LARA, 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 of the City of San Rafael, held on the 2nd day of September 2025 by the following vote, to wit: AYES: NOES: ABSENT: Councilmembers: Bushey, Hill, Kertz, Llorens Gulati & Mayor Kate Councilmembers: None Councilmembers: None ________________ Lindsay Lara, City Clerk 1 Error! Unknown document property name. AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND THE MARIN HISTORY MUSEUM THIS AGREEMENT is made and entered into this ____ day of ________ 2025 (“Effective Date”) by and between the CITY OF SAN RAFAEL, hereinafter referred to as “City” and the MARIN HISTORY MUSEUM, a 501(C)3 Non-Profit Organization, hereinafter referred to as “MHM”. RECITALS WHEREAS, the City is the owner of certain real property in the City of San Rafael, commonly referred to as Assessor’s Parcel No. 011-131-03 (hereinafter “City Parcel”); and WHEREAS, from 2002 to present, the City has leased, from time to time, to Licensee, a portion of the City Parcel, commonly known as the “Boyd Gate House” at 1125 B Street, San Rafael, CA, referred to as the Boyd Gate House, with the most recent tenancy subject to the “Lease Agreement between the City of San Rafael and the Marin History Museum” dated July 1, 2021, (referred to as the “Lease”); and WHEREAS, MHM has a collection of some 20,000 artifacts and 200,000 historic photographs and volumes of county scholarship, oral history and only-in- Marin curiosities, which is the basis for its public programs including exhibits, lectures, walks and classroom activities, and serves as a critical resource for authors, historians, students and other researchers (referred to herein as “MHM Operations”); and WHEREAS, allowing for MHM Operations at the Boyd Gate House would be beneficial to the public health and welfare in that it would facilitate encourage and promote MHM’s public programs and service as a resource to celebrate the traditions, innovations, and creativity of the people of Marin County and to provide activity within the San Rafael downtown area; and WHEREAS, to allow for MHM’s continued operations at the Boyd Gate House and to expand public programs at the Falkirk Mansion, the parties desire to terminate the lease and enter into this Agreement to provide for greater flexibility for the Parties. Now, therefore, the City and MHM hereby agree as follows: 2 Error! Unknown document property name. AGREEMENT Section 1: Status of Lease The parties agree that for due consideration, which is hereby acknowledged, upon execution of this agreement, the Lease is hereby terminated by mutual agreement. Each party hereto this Agreement hereby releases, waives, and discharges the other party, including its officers, directors, employees, agents, successors and assigns, from any and all claims, demands, obligations, liabilities, causes of action, and damages, including any relocation assistance, arising out of the termination of the Lease. Each party expressly waives any and all rights under Section 1542 of the California Civil Code, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. Section 2: Duties and Responsibilities of City 2.1 License for Boyd Gate House 2.1.1 In consideration of the benefit to the City and/ or its residents generally, as described above, subject to the terms and conditions stated herein, the City grants to MHM, an exclusive license (hereinafter “ Boyd Gate House License”) for Boyd Gate House for the limited purposes described herein and for no other purpose. The term of the license shall be for the term of this Agreement. 2.1.2 MHM understands, acknowledges and agrees that the grant of this License does not convey any interest in real property, and that the License is personal to MHM. 2.1.3 The City grants License to MHM for the limited purpose of MHM Operations. MHM understands, acknowledges and agrees that this license to use the Boyd Gate House is for this sole purpose and for no other purpose. MHM’S use of Boyd Gate House for any other purpose, without the prior written consent of the City, shall automatically terminate this License. 2.1.4 The City grants this Boyd Gate House License subject to any and all licenses, leases, easements, conditions, restrictions, covenants, encumbrances, liens and claims of title which may affect the Boyd Gate House as of the effective date of this Agreement and to the City’s right to maintain the City 3 Error! Unknown document property name. Property, including the Boyd Gate House. The City reserves the right to use Boyd Gate House in any manner, provided that such use does not unreasonably interfere with MHM’s rights granted herein. The City agrees to cooperate with MHM in the exercise of the City’s right to use Boyd Gate House. 2.1.5 Conditions of License a. The City reserves the right to modify or change MHM use of space based on program needs. b. MHM shall be responsible for providing all equipment, furnishings, materials, supplies and personnel necessary for the management and operation of MHM Operations at Boyd Gate House. c. All City personnel that the City assigns to assist the MHM programs shall be employees of the City and, as such, shall be completely under the direction, control, and responsibility of the City. d. MHM shall provide custodial services, maintenance, computers, telephones, and utilities for the MHM Operations at the Boyd Gate Gouse, at no cost to the City. e. MHM shall conduct MHM Operations at the Boyd Gate House and fulfill its duties and responsibilities as set forth in Section 3. Section 3. Duties and Responsibilities of MHM 3.1 MHM is and shall operate as a self-governing, non-profit organization with elected officers and members. 3.2 MHM membership is open to all persons regardless of gender, sexual orientation, creed, religion, race, residency, physical ability, or national origin. 3.3 For the benefit of the City and its residents, MHM Operations shall include : 3.3.1 City Hall Display. Installation of a quarterly exhibit of images from MHM’s collection that reflect San Rafael history. 3.3.2 Historical Talks. MHM will include as part of its annual Speaker Series at least one public event about San Rafael’s history over the last 151 years, held at the San Rafael Public Library. 4 Error! Unknown document property name. 3.3.3 City Collateral Support. Assistance to the City in creating content for brochures, signage, etc. related to MHM Operations at Boyd Gate House. 3.3.4 Archival Image Access. MHM will waive all usage fees for images from its collection for City civic projects. 3.3.5 Self-Guide Tour Creation. MHM will create a tri-fold flyer about the Falkirk Mansion to be distributed at the location. 3.3.6 Plaque Tour Research. Creation of a virtual tour that is similar to the one in the City of Petaluma, where visitors use their mobile phones to scan QR codes to access webpages with content about historic buildings, landmarks, or neighborhoods. These codes can be displayed in windows or on small signs attached to parking meters or light poles. The content (text, photos, etc.) will be provided by MHM. This could be expanded to include the interior of the Falkirk Mansion. All of this content can also be arranged for viewing on a dedicated website. 3.4 MHM shall coordinate with designated City staff regarding matters concerning the operation of the MHM Operations at the Boyd Gate House. 3.5 All MHM personnel and volunteers coordinated by the MHM shall be completely under the direction, control and responsibility of the MHM. MHM is solely responsible for furnishing its own personnel and volunteers to produce programs, services, and activities. MHM is not authorized to offer fee-based activities, classes or programs instructed by third-party contractors, outside organizations, or individuals not associated with the MHM at Boyd Gate House. 3.6 MHM shall, at its sole cost, provide independent supplies, materials, equipment, and all consumable materials necessary for the conduct of MHM Operations, its programs, services, activities, and events. 3.7 Equipment (not including computers/monitors, modems/routers, loaned or leased equipment, or items that are part of MHM’s collection), and furnishings purchased by the MHM expressly for use at the Boyd Gate House shall become permanent property of the Boyd Gate House and shall be shared with other individuals, groups and organizations utilizing the Boyd Gate House for other activities, with permission of the MHM during the term of this and any subsequent agreements between the City and the MHM. MHM shall permit other individuals, groups and organizations to access a computer set up for the purposes of conducting historical research at the Boyd Gate House. 5 Error! Unknown document property name. 3.8 MHM shall abide by and follow all policies, procedures, rules and regulations set forth by the City for the administration and operation when fulfilling its duties at locations other than the Boyd Gate House. Section 4. Compensation 4.1 The City agrees that there are no fees due to the City for the activities and use of the Boyd Gate House described in this Agreement, unless the Agreement requires otherwise. 4.2 MHM agrees to pay fees, to be agreed upon by the parties in advance of any assignment, for City personnel assigned to support MHM activities at the Boyd Gate House. 4.3 MHM agrees that the City will not furnish personnel assigned to coordinate or direct MHM programs as part of this Agreement. MHM agrees to furnish their own personnel, at its own expense, to coordinate MHM programs. Section 5. Reports and Audits By March 1st of each year, MHM shall provide to the City a comprehensive status report describing all organized activities conducted and supervised during the previous year at Boyd Gate House. MHM shall provide to the Assistant City Manager, or their designee, a copy of its annual financial statement as regularly prepared. Section 6. Term This Agreement shall commence on the date written above and shall expire three years from the Effective Date. This Agreement may be extended for three (3) additional one (1) year terms based on mutual satisfaction and agreement to terms. Section 7. Termination of Agreement 7.1 Discretionary. Either party may terminate this Agreement without cause upon ninety ( 90) days written notice mailed or personally delivered to the other party. 7.2 Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) days' time period. 6 Error! Unknown document property name. 7.3 Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. City shall cooperate with MHM for the safe temporary storage and access to the Boyd Gate House to allow for the orderly removal of MHM’s collection pieces and equipment. 7.4 Return of Documents. Upon termination, any and all City documents or materials provided to MHM and any and all of MHM's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to the City as soon as possible, but not later than thirty (30) days after termination. Section 8 Indemnification 8.1 MHM shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by the City, and hold harmless the City, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "Claims"), arising out of MHM's performance of its obligations or conduct of its operations under this Agreement. MHM 's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the MHM 's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of MHM's work or work product by the City or any of its directors, officers or employees shall not relieve or reduce MHM's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from MHM'S performance of or operations under this Agreement, MHM shall provide a defense to the City Indemnitees or at the City’s option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. 8.2 The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. Section 9. Insurance. 7 Error! Unknown document property name. 9.1 Scope of Coverage. During the term of this Agreement, MHM shall maintain, at no expense to the City, the following insurance policies: a) A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. b) An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. c) If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the MHM's performance of services under this Agreement. Where MHM is a professional not required to have a professional license, The City reserves the right to require MHM to provide professional liability insurance pursuant to this section. d) If it employs any person, MHM shall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. MHM's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against The City. 9.2 Other Insurance Requirements. The insurance coverage required of the MHM in this section, shall also meet the following requirements: a) Except for professional liability insurance or worker's compensation insurance, the insurance policies shall be specifically endorsed to include the City, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. b) The additional insured coverage under MHM's insurance policies shall be "primary and non-contributory" with respect to any insurance or coverage maintained by The City and shall not call upon The City's insurance or self- insurance coverage for any contribution. The "primary and non-contributory" coverage in MHM's policies shall be at least as broad as ISO form CG20 01 04 13. c) Except for professional liability insurance or worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 8 Error! Unknown document property name. d) By execution of this Agreement, MHM hereby grants to the City a waiver of any right to subrogation which any insurer of MHM may acquire against the City by virtue of the payment of any loss under such insurance. MHM agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. e) If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. f) The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. g) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City (if agreed to in a written contract or agreement) before the City's own insurance or self- insurance shall be called upon to protect it as a named insured. h) It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to The City or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the obligations of the MHM under this agreement. i) The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to the Assistant City Manager. 9.3 Deductibles and SIR's. Any deductibles or self-insured retentions in MHM' insurance policies must be declared to and approved by the City’s Risk Manager, and shall not reduce the limits of liability. Policies containing any self- insured retention (SIR) provision shall provide or be endorsed to provide that the 9 Error! Unknown document property name. SIR may be satisfied by either the named insured or the City or other additional insured party. At the City's option, the deductibles or self- insured retentions with respect to the City shall be reduced or eliminated to the City's satisfaction, or MHM shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. 9.4 Proof of Insurance. MHM shall provide to the City’s Project Manager all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. The City reserves the right to obtain a full certified copy of any insurance policy and endorsements from MHM. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by the City’s Risk Manager. Section 10. Possessory Interest. MHM recognizes and understands that this Agreement may create a Possessory interest subject to property taxation and that MHM may be subject to the payment of property taxes levied on such interest. Section 11. Independent Contractor. It is understood and agreed that MHM, its employees, agents and volunteers, in performance of the duties and obligations under this Agreement, shall act as and shall be an independent contractor and not an agent or employee of the City. As such, MHM, its employees, agents and volunteers shall obtain no rights or benefits, which accrue to the City employees. MHM expressly waives any claims it, its employees, agents, or volunteers may have to any such rights or benefits. Section 12. Assignment: No Third Party Beneficiaries. 12.1 MHM shall not assign or transfer any interest in this Agreement, nor its duties and obligations under this Agreement, without the prior written consent of the City, and any attempt by MHM to so assign this Agreement, or any rights, duties or obligations arising hereunder, shall be void and of no effect. 12.2 Neither party shall assign or transfer its rights to enforce any part of this Agreement. The obligation of the City and the obligations of the MHM stated in this Agreement are not intended to, and do not, create any rights to any other 10 Error! Unknown document property name. person or entity which such person or entity would not otherwise have in the absence of this Agreement. Section 13: Compliance With All Laws & Non-discrimination. MHM shall comply with all applicable laws, ordinances, codes and regulations of the State, Federal and local governments in the performance of its duties and obligations under this Agreement. MHM shall not discriminate, in any way against any person on the basis of age, sex, race, color, creed, religion, sexual orientation, physical ability, or national origin in connection with or related to the performance of this Agreement. MHM shall release, defend, indemnify, and hold harmless the City, its officers, agents, and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. Section 14. Authority. 14.1 Each party represents that it has duly approved the signing of this Agreement and has duly authorized the person named below to sign this Agreement on its behalf in accordance with applicable law. Each such named person personally warrants that he/she has such approval and authority. 14.2 Minor variations in the provision of services pursuant to this Agreement may be made with written concurrence by the Assistant City Manager and MHM. With this exception, this Agreement may only be modified by a written amendment executed by the parties to this Agreement. Section 15. Waiver. MHM understands and agrees that waiver by the City of any breach or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by the City of the performance of any duty or obligation by MHM shall not be deemed to be a waiver of any term or condition of this Agreement. Section 16. Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid, addressed to the responsive parties as follows: To The City: 11 Error! Unknown document property name. Assistant City Manager 1400 Fifth Street San Rafael, CA 94901 To MHM: Marin History Museum P.O. Box 150727 San Rafael, CA 94915 Notice shall be deemed effective on the date personally delivered or, if mailed, upon deposit in the mail, properly addressed and with required postage. Section 17. Whole Agreement. 17.1 The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. 17.2 This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the MHM and the City. 17.3 No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. 17.4 If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. Section 18. Set-Off Against Debts. MHM agrees that City may deduct from any payment due to MHM under this Agreement, any monies which MHM owes the City under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. Section 19. Attorney's Fees. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 12 Error! Unknown document property name. Section 20. Survival of Terms. Any terms of this Agreement that by their nature extend beyond the term (or termination) of this Agreement shall remain in effect until fulfilled and shall apply to both Parties' respective successors and assigns. Section 21. Applicable Law. The laws of the State of California shall govern this Agreement. Section 22. Counterparts and Electronic Signature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF the parties hereto have executed this written AGREEMENT the day and year first above written. CITY OF SAN RAFAEL MARIN HISTORY MUSEUM ____________________ _________________________________ Cristine Alilovich, City Manager Heather McPhail Sridharan, President, Board of Directors ATTEST Date_____________________________ _________________________ Lindsay Lara, City Clerk APPROVED AS TO FORM: __________________________ Date: ____________________________ Andrea Visveshwara, Chief Assistant City Attorney