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Home My WebLink AboutCS Yacht Club Leasen.��alt I " �� Agenda Item No: 5. a Meeting Date: February 18, 2014 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: Community Services Prepared by: Carlene McCart City Manager Approvx #4Jh SUBJECT: Consideration of an Ordinance Approving a Lease of Real Property at 200 Yacht Club Drive to the San Rafael Yacht Club RECOMMENDATION: Pass Ordinance to Print Approving a Lease of Real Property at 200 Yacht Club Drive to the San Rafael Yacht Club. BACKGROUND: The City owns 3.7 acres on the south/west end of the San Rafael Canal, APN 14-152-27. In 1983 the City entered into a 30 -year Property Lease Agreement with the San Rafael Yacht Club (Club), a California 501(C) 3 non-profit organization, for the use and improvement of the property and features. The 1983 Lease called for the Club to maintain and improve the existing buildings for boating activities and install and maintain a floating dock to secure vessels for up to 24 hours. The dock was to be available to Club members, guests and the general public. Public access was free of charge. Parking to accommodate 35 vehicles was required, and a provision was included to expand the lease terms to include more of the site if required to satisfy the parking needs. The Lease allowed that facilities were included in "existing condition"; it designated responsibility for all maintenance, repairs, alterations and improvements to the Club. Applicable permits and reviews were required for any work done over $6,000 in a given year. The Lease permitted potential improvements to Beach Park and the development of a 40 birth marina facility. The charge to the Club for use of the property was $800 per year. Over the Term the Club has made improvements to the Clubhouse, replaced the existing kitchen, restrooms, and installed ADA compliant accesses. The dock was replaced and various improvements to landscape and property features evolved. A security gate and fencing was installed at the entrance to the parking area. FOR CITY CLERK ONLY File No.: cf� --9 r1 I Council Meeting: 4 1.101ti Disposition: c9r-i (r "f1 u2 F. f 4:� d SAN P-AFAEL CITY COUNCIL AGENDA REPORT / Page: 2 As community benefit, the Club hosts over 30 events each year for local groups and nonprofit organizations as well as private parties. It provides facilities and storage for learn -to -sail programs, including a physical education course produced by San Rafael High School for its students. Visitors from the public as well as reciprocal visits from members of other yacht clubs occur regularly. City Attorney, Rob Epstein began negotiations with the Club at the expiration of the previous Lease in December 2012. A Draft lease was presented to the Park and Recreation Commission in September 2013. It was amended as a result of Commission review and approved at their October 2013 meeting for recommendation to the City Council. ANALYSIS: The proposed Lease contemporizes the terms and conditions to continue the relationship between the City and the Club. In addition to updating insurance, compliance, and permitting processes, it reflects the City commitment to General Plan 2020, and the more recently adopted Canal Transportation Plan; provides increased public benefit; memorializes the public access to the property and facilities and establishes present day value on the property. The Term is 8 years with an option to renew for an additional 8 years. The shorter tem allows for both parties to adjust and modify the Lease as changing conditions in and around the San Rafael Canal evolve. The permitted use is for the operation of a yacht club, consisting of a defined membership organized for the purpose of boating activities. It allows for the occasional rental of the Clubhouse and associated facilities to independent parties. The Lease requires the Club to assume all responsibility for maintenance and repairs for all equipment, furnishings, buildings and docks for the Term. All improvements are subject to City review, planning and permitting processes. Improvements remain the property of the City after the termination of the Lease. The featured facilities named are the Clubhouse with food service facilities, a floating dock, administration offices, parking and boat storage facilities. The Club is responsible for restoring damaged facilities at the conclusion of the Lease. The Lease memorializes the public benefit required from the Club. The facilities will be donated to community groups and organizations for use no less than 30 days per year. A dock specifically designed to launch personal water craft such as kayaks, paddle boards and canoes will be installed and open to the public on weekends, at no charge Access by the public on weekdays will be by appointment, as the Club does not have volunteer administrators on site Monday Friday and entry is regulated through a locked gate. Storage will be installed and managed by the Club for personal water craft. A fee may be charged for storage privileges. The inclusion of the new dock, and accommodation for personal watercraft was a primary issue for the Park and Recreation Commission. The Commission accepted the Lease language relating to the installation, liability, accessibility, hours and storage. Currently the gangway system that serves the existing dock will serve the new dock, which is not optimum. Replacing the gangway is a $40 -50,000 expense. The Commission recognized that the Club cannot afford the additional financial outlay and requested language to reflect that should funding become available to construct a new gangway, the Club would accept the City installing such. SAN RAFAEL CITY COUNCIL AGENDA REPORT 1 Page: 3 While it is not feasible to make available the personal water craft dock seven days a week, its inclusion expands recreation opportunities for the community, as per the Canal Transportation Plan. Two such personal watercraft docks are included in the plans for the public recreation areas within the Village at Loch Lomond. With this third option, boaters will have access to the San Rafael Canal at both the West and the East ends. The Lease updates levels of insurance requirements including general coverage of $2 mil., workers compensation of $1 mil, and fire insurance. The Club will name the City as additional insured. Standard indemnification language is included. FISCAL IMPACT: The previous Lease agreement called for an annual payment from the Club to the City of $800. Over the 30 year term the total payment to the City was $240,000. The proposed Lease requires an annual payment to the City of $25,000. Over the 8 year term the return to the City for the Club's use of the property is $200,000. The revenue will be collected and deposited to the General Fund. OPTIONS: Approve the Ordinance Reject the Ordinance with direction to staff for revision Reject the Ordinance and dissolve the relationship between the City and the Club ACTION REQUIRED: Pass Ordinance to Print Approving a Lease of Real Property at 200 Yacht Club Drive to the San Rafael Yacht Club. Encls. An Ordinance of the City of San Rafael Approving a Lease of Real Property at 200 Yacht Club Drive to the San Rafael Yacht Club Exhibit 1: Lease Agreement between the City of San Rafael and the San Rafael Yacht Club, April I, 2014 ORDINANCE NO. 1919 AN ORDINANCE OF THE CITY OF SAN RAFAEL APPROVING A LEASE OF REAL PROPERTY AT 200 YACHT CLUB DRIVE TO THE SAN RAFAEL YACHT CLUB WHEREAS, the San Rafael Yacht Club ("Yacht CIub") is a local nonprofit organization established in 1938; and WHEREAS, in 1961 the City and Yacht Club entered into a lease of certain City -owned real property located adjacent to the San Rafael Canal, west of the turning basin at the end of Yacht Club Drive, commonly known as 200 Yacht Club Drive (the "Premises"); and WHEREAS, Yacht Club thereafter constructed a building, parking lot, and boat dock on the Premises to use as a clubhouse facility for its members; and WHEREAS, the City has continued to lease the Premises to Yacht Club through a series of leases, the most recent of which was a 1983 lease that expired on March 3I, 2013; and WHEREAS, during its tenancy on the Premises, Yacht Club has been an active and valuable supporter of local boating activities and a host to visiting boaters from all over the Bay Area and beyond; and additionally has made its clubhouse and facilities available to numerous community and civic organizations for meetings and charitable events; and WHEREAS, during its tenancy, Yacht Club has continued to enhance the clubhouse and other improvements on the Premises, the ownership of which has now transferred from Yacht Club to the City pursuant to the terms of the 1983 lease; and WHEREAS, in late 2012, Yacht Club requested a new lease of the Premises and since April 1, 2013 has been leasing the Premises on a month-to-month basis during the negotiation of new lease terms with the City; and WHEREAS, the City Council finds that for all of the foregoing reasons, it is in the best interests of the City to continue to lease the Premises to Yacht Club; and WHEREAS, the City Council finds that approval of the requested lease of an existing structure is categorically exempt from environmental review, pursuant to CEQA Guidelines Section 15301. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1. The City Council hereby approves, and authorizes the Mayor to execute, a lease of the Premises to Yacht Club for a term of eight (8) years commencing as of April 1, 2014, with an option to renew for another eight (8) years, at a base rental of Twenty-five Thousand Dollars ($25,000) per year and on the other terms set forth in the "Lease Agreement Between the City of San Rafael and the San Rafael Yacht Club, April 1, 2014" attached hereto as Exhibit 1 and incorporated herein by reference. DIVISION 2: This Ordinance shall be published once, in full or in summary form, before its final passage, in a newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. If published in summary form, the summary shall also be published within fifteen (15) days after the adoption, together with the names of those Councilmembers voting for or against same, in a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State ofCalifo. O. P LLIPS, Mayor ATTEST: ESTHER BEIRNE, City Clerk The foregoing Ordinance No.1919 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the I8th day of February, 2014 and ordered passed to print by the following vote, to wit: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: Bushey, Colin, Connolly, McCullough & Mayor Phillips None None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 3rd day of March, 2014. f1Qt&1r,9 1&U -1e6-00 ESTHER BEIRNE, City Clerk EXHIBIT 1 LEASE AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND THE SAN RAFAEL YACHT CLUB APRIL 1, 2014 LEASE AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND THE SAN RAFAEL YACHT CLUB April 1, 2014 THIS LEASE is made as of April 1, 2014, by and between the City of San Rafael, a California municipal corporation duly chartered under the laws of the state of California (hereafter "City" or "Lessor"), and the San Rafael Yacht Club, a California not -far -profit corporation (hereafter "Yacht Club" or "Lessee"). RECITALS A. The City owns that certain real property located adjacent to the San Rafael Canal in the City of San Rafael, County of Marin, State of California, bearing Assessor's Parcel No. 014-152-27 (the "City Parcel"). B. Since 1961, City has leased to Yacht Club a portion of the City Parcel commonly known as 200 Yacht Club Drive, San Rafael, California, and more particularly described as set forth in Exhibit "A" attached hereto and incorporated herein by reference ("the Premises"). During this time, Yacht Club has improved the Premises with a clubhouse, parking, and visiting docking facilities for its members, other yacht clubs, and the public. The Yacht Club also has made the facilities available on a regular basis for numerous civic, educational, and charitable uses and events. C. The San Rafael Beach Park Basin is identified by Bay access as a potential self- propelled small craft launch site for the San Francisco Bay Water Trail. D. City wishes to encourage and promote public use of the San Rafael Canal for self- propelled watercraft activities. Yacht Club is willing to assist in the development of these activities by providing docking facilities for public use. E. To continue the mutual benefits provided by Yacht Club use of the Premises, the parties desire that Yacht Club shall continue to lease the Premises from the City on the terms set out in this Lease. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. RENTAL OF PREMISES. For valuable consideration, the City leases to Yacht Club and Yacht Club leases from City the Premises described in Exhibit "A" hereto, including any improvements located thereon, on the terms, covenants and conditions set out in this Lease. 2. TERM. 2.1. Term. The term of the Lease ("Term") shall be for eight (8) years. The Term shall commence on April 1, 2014 (the "Commencement Date") and shall expire on March 31, 2022 ("Expiration Date"). 2.2. Option. Yacht Club shall have the option to renew this Lease on the same terms for an additional period of eight years, upon written notice to renew the Lease provided to City not less than six (6) months prior to the Expiration Date. 3. RENT. 3.1. Rent. The Yacht Club shall pay the City the sum of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) per year as rent during the term, payable in advance commencing on the Commencement Date of the Lease, and annually thereafter on the anniversary of the Commencement Date, with adjustments pursuant to Section 3.2. 3.2. Rent Adsustment. a. The annual rent shall be increased at the commencement of the third year of the term and every two years thereafter during the tern or any renewal term pursuant to the option granted under Section 2.2 ("adjustment date" herein) to the lesser of: a) the annual rent in effect immediately preceding the adjustment date plus five per cent (50/o); or b) the annual rent as adjusted for the change in the Consumer Price Index (CPI), as calculated in Section 3.2.b. b. The base for computing the CPI adjustment is the Consumer Price Index for all Urban Consumers (base years 1982-1984=100) for San Francisco -Oakland -San Jose, published by the U.S. Department of Labor, Bureau of Labor Statistics ("Index" herein), which is in effect on the date of the commencement of the term ('Beginning Index" herein). The Index published most immediately preceding the adjustment date in question ("Extension Index" herein) is to be used in determining the amount of the CPI adjustment. If the Extension Index has increased over the Beginning Index, the CPI adjustment shall be calculated by multiplying the annual rent by a fraction consisting of the Extension Index as the numerator and the Beginning Index as the denominator. If the Index is discontinued or revised during the tern, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would have been obtained if the index had not been discontinued or revised. 4. USE OF PREMISES. 4.1 Permitted Uses. The Premises shall be used for the following uses: a. Operation and maintenance of a yacht club, including providing boating activities and experiences to Yacht Club members and the public and the occasional rental of all or part of Premises on a per diem basis for events conducted by other organizations and individuals. 2 b. Club house including food service facilities. C. Floating docks. d. Administrative offices. e. Vehicle parking. f. Personal watercraft storage. 4.2 Limits on Use. Yacht Club shall not use the Premises for any purpose, other than as set forth in this Lease, nor in any manner that will constitute waste, nuisance, or unreasonable annoyance to owners or occupants of adjacent properties. 4.3 Use of Premises for Community Events. Yacht Club shall donate the Premises for use, free of charge, by community or non-profit organizations selected by Yacht Club, on at least 34 occasions during each year of the Lease term or any extension thereof. 5. INSTALLATION OF DOCK FOR SELF-PROPELLED WATERCRAFT FACILITIES. 5.1. Installation of Dock. Yacht Club shall install on the Premises, at its sole expense, a prefabricated, ADA compliant and accessible, low-rise floating dock approximately 5' by 18' with a rise of 8 inches, for launching of self-propelled watercraft onto the San Rafael Canal. The proposed dock shall be approved by the City's Community Services Director as to style and size prior to purchase, and shall be purchased from a recognized manufacturer and distributor. The dock shall be installed on the parking lot side of the existing Yacht Club dock, without interfering with the Federal turning basin. The parties acknowledge that Yacht Club is not required to install a new gangway directly from the parking lot to the low-rise floating dock; however, Yacht Club agrees that City may authorize installation of such a gangway, at no expense to Yacht Club, at any point during the term of this Lease or any extension hereof, and the use thereof in a manner not inconsistent with this Lease and/or mutually agreeable to the parties. Nothing in this section shall be deemed to excuse Yacht Club from the requirement to obtain all applicable permits and approvals required for installation of such dock from the City's Department of Public Works and/or Department of Community Development, or from any conditions imposed upon the grant of such permits and approvals, or from compliance with the Americans with Disabilities Act or any other applicable laws. Yacht Club shall pursue applications for all such required permits and approvals in an expeditious manner following execution of this Lease. Yacht Club shall install the dock within sixty (60) days following the Commencement Date, or as soon thereafter as all necessary permits and approvals have been obtained. 5.2. Storage and Amenities. Yacht Club shall provide and maintain portable secure storage racks for six (5) to eight (8) self-propelled watercraft, in the Yacht Club parking lot area. The Yacht Club may charge a reasonable fee for such storage services. Individual owners/users shall be responsible for properly securing their craft to the storage rack. Yacht Club shall provide access through the Yacht Club parking lot gate to the dock and to ADA compliant restroom facilities. Nothing in this section shall be deemed to excuse Yacht Club from the requirement to obtain all applicable permits and approvals required for installation of such storage racks from the City's Department of Public Works an/or Department of Community Development, or from compliance with any conditions imposed upon the grant of such permits and approvals, or from compliance with the Americans with Disabilities Act or any other applicable laws. Yacht Club shall pursue applications for all such required permits and approvals in an expeditious manner following execution of this Lease. 5.3. Use of Dock and Facilities. Yacht Club may provide for use of the dock, storage facilities, and restroom facilities to self-propelled watercraft users who are registered with the Yacht Club. Access to the dock and restroom facilities shall be open and available to the public on weekend hours per a schedule approved in advance by the City's Community Services Director. Such use by the public shall be free of charge or at a reasonable charge approved in advance by the Community Services Director. G. UTILITIES. Yacht Club shall make all arrangements for and shall pay for all utilities and services furnished to the Premises or used by Yacht Club, including, without limitation, gas, electricity, water, telephone service, and garbage collection, and for all connection charges. 7. IMPROVEMENTS. No improvements to the Premises shall be undertaken without prior written approval of the City, which approval shall not unreasonably be withheld. Title to all improvements constructed by the Yacht Club shall be owned by the Yacht Club until expiration of the Term or any renewal thereof, or the earlier termination of this Lease. All improvements, including the Yacht Club building, on the Premises at the expiration of the Tenn or any renewal thereof, or the earlier termination of this Lease shall, without compensation to the Yacht Club, then automatically and without any act of the Yacht Club or any third party become the property of the City. The Yacht Club agrees to execute, acknowledge, and deliver to the City any instrument reasonably requested by the City as necessary in the City's opinion to perfect the City's right, title, and interest to the improvements and the Premises, at such time and in such form as the City may request and the City Attorney shall approve. 4 8. MAINTENANCE AND REPAIRS. 8.1. Lessee's Duty to Maintain Premises. At all times during the term, Yacht Club shall, at its cost and expense, keep and maintain the Premises and all improvements thereon and all facilities appurtenant thereto in good order and repair and safe condition, and the whole of the Premises in a clean, sanitary, orderly, and attractive condition. Yacht Club shall make any and all additions to or alterations or repairs in and about the Premises and the improvements that may be required, and shall otherwise observe and comply with all public laws, ordinances, and regulations from time to time applicable to the Premises; and Yacht Club shall indemnify and save harmless the City against all actions, claims, and damages by reason of Yacht Club's failure to comply with and perform the provisions of this section. 8.2. No Responsibility of City_. City shall not be required or obligated to make any changes, alterations, additions, improvements, or repairs in, on, or about the Premises, or any part thereof, during the term of this Lease. 8.3. Mechanic's Liens. Yacht Club shall not suffer or permit to be enforced against the Premises, or any part thereof, any mechanic's, materialman's, contractor's or subcontractor's liens arising from any work of construction, repair, restoration, replacement or improvement, or any other claim or demand; Yacht Club shall pay or cause to be paid all of such liens, claims, or demands before any action is brought to enforce the same against the Premises. Yacht Club agrees to indemnify and hold harmless the City and the Premises from all liability for any and all such liens, claims, and demands, together with reasonable attorney's fees and costs and expenses in connection therewith. 9. INSURANCE. 9.1. Insurance. During the term of this Lease and any renewal thereof, the Yacht Club shall maintain, at its sole cost and expense: (a) Commercial General Liability insurance with limits of liability of not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) annual aggregate, insuring against all liability of the Yacht Club and its authorized representatives arising out of or in connection with the Yacht Club's use or occupancy of the Premises; and (b) 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, endorsed to waive any right of subrogation against the City. Upon Yacht Club's exercise of the option provided for in Section 2, if, in the reasonable opinion of the City, the amount of insurance coverage at the time is not adequate, the Yacht Club shall increase the insurance coverage as reasonably required by the City. 9.2. The Yacht Club's Fire Insurance for Personal Property. The Yacht Club shall, at its sole cost and expense, maintain on all the personal property located within the Premises, a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, to the extent of at least 100% of their actual cash value. The proceeds from any such policy shall be used by the Yacht Club for the replacement of said personal property or for the restoration of the Yacht Club's improvements or alterations. 9.3. Other Insurance Requirements. All the insurance required under this Lease shall: a. Be issued by insurance companies authorized to do business in the State of California, with a financial rating of at least A+ by A.M. Best as rated in the most recent edition of Best's Insurance Reports and a Standard & Poor's rating of AAA. b. Provide, or be endorsed to provide that the City, its officers, officials, employees, and volunteers are additional named insureds under the policy. C. Provide, or be endorsed to provide, that it Yacht Club's insurance shall be primary 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. d. Contain an endorsement requiring at least thirty (30) days' written notice from the insurance company to both parties before cancellation or change in the coverage, scope, or amount of any policy. e. Within thirty (30) days after the Commencement Date of this Lease, the Yacht Club shall submit to the City Attorney for approval as to form and sufficiency: (1) Certificates of Insurance evidencing the insurance coverages required in this Lease; (2) a copy of the policy declaration page and endorsement page listing all policy endorsements for the general liability policy, and 3 exce is of policy language or specific endorsements evidencing the other insurance requirements set forth in this Lease. The City shall additionally have the right to obtain a full certified copy of any insurance policy and endorsements upon reasonable request. 9.4 Broader Insurance Proceeds Available to Lessor. It shall be a requirement under this Lease 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 Lease; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. 10. INDEMNIFICATION. Yacht Club shall defend, protect, indemnify and hold harmless the City against and from any and all claims, suits, liabilities, judgments, costs, demands, causes of action and expenses (including, without limitation, reasonable attorneys' fees, costs and disbursements) (collectively "Claims") arising in any way out of the Yacht Club's operations on or use of the Premises under this Lease, including any Claims under any Federal or State regulations related to accessibility, regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City. However, to the extent that liability is caused by the active negligence or willful misconduct of the City, Yacht Club's indemnification obligation shall be reduced in proportion to the City's share of liability for the active negligence or willful misconduct. The defense and indemnification obligations of this Lease are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Lease, and shall survive the termination or completion of this Lease for the full period of time allowed by law. 11. DESTRUCTION. 11.1. Destruction Due to Risk Covered by Insurance. If, during the term, the Premises are totally or partially destroyed or damaged from a risk which has been insured against, rendering the Premises totally or partially inaccessible or unusable, the Yacht Club shall be entitled to receive the proceeds of the insurance and shall, with due diligence, restore the Premises to substantially the same condition as immediately before such destruction. 11.2. Destruction Due to Risk Not Covered by Insurance. If, during the term, the Premises are totally or partially destroyed or damaged from a risk not insured against rendering the Premises totally or partially inaccessible or unusable, the Yacht Club may elect to terminate this Lease by giving notice to the City within thirty (30) days after determining the restoration costs and replacement value. If the Yacht Club does not so elect to terminate the Lease, the Yacht Club shall, at its sole cost and expense (except as otherwise provided herein) and with due diligence, restore the Premises to substantially the same condition as they were in immediately before such destruction. Such destruction shall not terminate this Lease. 11.3. The Yacht Club's Restoration of the Premises. If the Premises are destroyed or damaged during the Lease Term and the Yacht Club is required to restore the Premises, the restoration shall be accomplished as follows: a. The Yacht Club shall complete the restoration within one hundred eighty (180) working days after final plans, specifications, and working drawings have been approved by the City and all other appropriate government bodies, all permits required to commence construction of the restoration have been obtained and all construction contracts have been awarded (subject to a reasonable extension for delays resulting from causes beyond the Yacht Club's reasonable control). b. The Yacht Club shall notify the City of the commencement date of construction related to the restoration not later than ten (10) days before commencement of such work. C. The Yacht Club shall accomplish the restoration in a manner that will cause the least inconvenience, annoyance, and disruption at the Premises and to adjacent property owners and users. 11.4. Loss During Last Part of Term. If destruction or damage in an amount greater than ten percent (10%) of the total value of the Premises occurs during the last year of the Lease Term, whether or not the loss is covered by insurance, the Yacht Club shall have the option to terminate this Lease by giving notice to the City not more than thirty (30) days after the event which causes such destruction or damage, in which event the City shall be entitled to receive any insurance proceeds payable with respect to the damage or destruction. 7 11.5. Waiver of Civil Code Sections. The Yacht Club waives the provisions of Civil Code §1932(2) and Civil Code §1933(4) and any successor statutes with respect to any destruction of the Premises. 12. ASSIGNMENT. The Yacht Club shall not voluntarily assign or encumber its interest in this Lease or in the Premises, or sublease all or any part of the Premises, without first obtaining the City's written consent. Any assignment, encumbrance or sublease without the City's consent shall be void, and shall constitute a default. No consent to any assignment, encumbrance or sublease shall constitute consent to a subsequent assignment, encumbrance or sublease. Nothing in this section shall prohibit, or require the City's consent for, the Yacht Club's use of Premises pursuant to Sections 4 and 5 of this Lease. 13. DEFAULT. 13.1. Yacht Club's Default. The occurrence of any of the following shall constitute a default by the Yacht Club: a. Failure to pay any amount under this Lease when due, if such failure continues for thirty (30) days. b. Failure to perform any other provision of this Lease if such failure to perform is not cured within thirty (30) days after notice of such failure has been given by the City to the Yacht Club. If the default is curable, but cannot reasonably be cured within thirty (30) days, the Yacht Club shall not be in default of this Lease if the Yacht Club commences to cure the default within the thirty (30) -day period and diligently and in good faith continues to pursue the cure of such default. C. An assignment, encumbrance, or sublease without obtaining the City's written consent pursuant to Section 12. d. Abandonment or surrender of Premises by Yacht Club. f. Any attachment, execution, levy, or seizure under legal process, of Yacht Club's interest in Premises. g. Appointment of a receiver to take possession of Yacht Club's interest in Premises, for any reason. h. Filing of a petition in bankruptcy by or against Yacht Club. i. Any other event designated by this Lease as an event of default. 13.2. Notice of Yacht Club Default. Notices of default given under this section shall specify the alleged default and the applicable lease provisions and shall demand that the Yacht Club perform the provisions of this Lease, within thirty (30) days, or quit the Premises. No such notice shall be deemed a forfeiture or a termination of this Lease unless the City so elects in the notice. The purpose of the notice requirements set forth in this section is to extend the notice requirements of the unlawful detainer statutes of California. Such notices are the only notices required to be given by the City to the Yacht Club in the event of a default and are not in addition to any statutory notices required under the unlawful detainer statutes of California. 13.3. City's Remedies. a. Nature of Remedies. The City shall have the following remedies if the Yacht Club commits a default. These remedies are not exclusive; they are cumulative and in addition to any other remedies now or later allowed by this Lease or by law. b. Termination of the Yacht Club's Right to Possession. The City may terminate the Yacht Club's right to possession of the Premises at any time if the Yacht Club fails to cure a default within thirty (30) days. No act by the City other than giving specific written notice to the Yacht Club of the City's intent to terminate the Yacht Club's right to possession of the Premises shall be necessary to terminate this Lease. Acts of maintenance to protect the City's interest under this Lease shall not constitute a termination of the Yacht Club's right to possession of the Premises. C. City's Right to Cure the Yacht Club's Default. The City, at any time after the Yacht Club commits a default, may, but need not cure the default at the Yacht Club's cost. If the City at any time, by reason of the Yacht Club's default, pays any sum or does any act that requires the payment of any sum, the sum paid by the City shall be due immediately from the Yacht Club to the City at the time the sum is paid, and if paid at a later date shall bear interest at the maximum rate an individual is permitted by law to charge from the date the sum is paid by the City until the City is reimbursed by the Yacht Club. 14. CITY'S ENTRY ON PREMISES. The City, its officers, employees, agents & volunteers shall have the right to enter the Premises at all reasonable times and on reasonable notice for any of the following purposes: a. To determine whether the Premises are in good condition and whether the Yacht Club is complying with its obligations under this Lease. b. To perform any necessary construction or maintenance and to make any restoration to the Premises that the City has the right or obligation to perform. C. To serve, post, or keep posted any notices required or allowed under the provisions of this Lease or required by law. 15. NOTICE. All notices and other communications required to or permitted under this Agreement 9 shall be in writing and shall be conclusively deemed to have been duly given (1) when hand delivered to the other party; or (2) three (3) business days after the same has been deposited in a United States post office with first class or certified mail return receipt requested postage prepaid and addressed to the parties as set forth below. The Ci City of San Rafael Attention: City Clerk 1400 Fifth Avenue San Rafael, California 94901 _with copy to: City of San Rafael, Office of the City Attorney 1400 Fifth Avenue San Rafael, CA 94901 City of San Rafael, Community Services Department 618 "B" Street San Rafael, CA 94901 The Yacht Club: San Rafael Yacht Club Attention: Commodore 200 Yacht Club Drive San Rafael, California 94901 Each party shall make an ordinary, good faith effort to ensure that it will accept or receive notices that are given in accordance with this paragraph, and that any person to be given notice actually receives such notice. A party may change or supplement the addresses given above by giving the other party written notice of the new address in the manner set forth above. 16. NONWAIVER. No delay or omission in the exercise of any right or remedy of either party shall impair such a right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of the Lease. 17. ATTORNEYS' FEES. If either party commences an action or suit against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys' fees and costs of suit. 18. SURRENDER OF PREMISES; HOLDING OVER. 18.1. Surrender of Premises. On expiration of the term, or on termination of the term as provided in the Lease, the Yacht Club shall surrender to the City the Premises and all improvements thereon in good condition, except for ordinary wear and tear. The Yacht Club shall remove all its personal property within thirty (30) days following expiration or termination 10 of the Lease. The Yacht Club shall perform all restoration to the Premises made necessary by the removal of any alterations or the Yacht Club'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 Yacht Club's personal property that the Yacht Club 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 Yacht Club. Title to any such alterations, or the Yacht Club'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 Yacht Club waives all claims against the City for any damage to the Yacht Club resulting from the City's retention or disposition of any such alterations or the Yacht Club's personal property. The Yacht Club shall be liable to the City for the City's costs for storing, removing, and disposing of any alterations or the Yacht Club's personal property. If the Yacht Club fails to surrender the Premises to the City on expiration of the tern as required by this section, the Yacht Club shall defend, indemnify, protect, and hold the City harmless from all damages, claims, or liabilities resulting from the Yacht Club's failure to surrender the Premises, including, without limitation, claims made by a succeeding tenant resulting from the Yacht Club's failure to surrender the Premises. 18.2. Holding Over. If the Yacht Club, with the City's prior consent, remains in possession of the Premises after expiration or termination of the term, or after the date in any notice given by the City to the Yacht Club terminating this Lease, such possession by the Yacht Club shall be deemed to be a month-to-month tenancy terminable on thirty (30) days' notice given at any time by either party. All provisions of this Lease shall apply to the month-to-month tenancy. 19. MISCELLANEOUS PROVISIONS. 19.1. General Conditions. a. Time of Essence. Time is of the essence of each provision of this Lease. b. Consent of Parties. Whenever consent or approval of either party is required and no standard for that approval is specified herein, that party shall not unreasonably withhold or delay such consent or approval. C. Successors. This Lease shall be binding on and inure to the benefit of the parties and their successors and assigns. C. Non -Discrimination. The Yacht Club shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Lease. 19.2. Interpretation of Lease. a. California Law; Venue. This Lease shall be construed and interpreted in accordance with the laws of the State of California. Any and all actions to enforce this agreement I1 shall be conducted in the County of Marin, California. b. Integrated Agreement; Modification. This Lease contains all the agreements of the parties and cannot be amended or modified except by a written agreement signed by the parties. C. Captions; Table of Contents. The captions and the table of contents of this Lease shall have no effect on its interpretation. d. 'Singular and Plural. When required by the context of this Lease, the singular shall include the plural. e. Severability. The unenforceability, invalidity, or illegality of any provision of this Lease shall not render the other provisions unenforceable, invalid, or illegal. 19.3. Taxes. Yacht Club is advised that this Lease may create a possessory interest, or some other interest subject to taxation or assessment. Yacht Club understands, acknowledges, and agrees that it is solely responsible for payment of any and all applicable taxes. 19.4. Compliance with all Laws. Yacht Club shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. Yacht Club shall perform all services under this Lease in accordance with these laws, ordinances, codes and regulations. 20. PROCEDURE FOR DISPUTES. 20.1. Mediation. Any dispute between the parties relating to the interpretation of the Lease and/or enforcement of their rights and obligations under this Lease shall be referred to mediation within thirty (30) days written notice of one party to the other. Mediation shall be conducted by a mediator mutually agreed upon by the parties. If the parties cannot agree within ten (10) calendar days of receipt of the Notice to Mediate, the presiding judge of the Marin Superior Court shall appoint a mediator. The mediation shall be conducted within ninety (90) days of appointment of the mediator. Costs of mediation shall be divided equally between the two parties. 20.2. Judicial Action. Should mediation not resolve the dispute between the parties, either party may pursueJud' 'al remedies in the appropriate court. The prevailing party in any judicial action shall recove eir reasonable attorneys' fees and costs. Initials: The City The Yacht Club W1 21. COUNTERPARTS. 4n This Lease has been executed by the parties in counterparts, each of which shall be deemed to be an original copy. I? IN WITNESS WHEREOF, this Lease is hereby executed as of the date first above written. CITY OF SAN RAFAEL A California municipal corporation By: G . PH _ aLlMayor Dated: Ar 04110:1.119 ESTHER BEIRNE, City Clerk APPROVED AS TO FORM: 4 0,&d L-,,-, g ROBERT F. EPSTE , City A ey 13 SAN RAFAEL YACHT CLUB A California non-profit corporation ? rz i2 G J-0 s 6-P By: _ rVU4." (IV Title: La h4ol dP(jRI= .. Dated: .Ji 91 b4 •m•' i Exhibit A CD ID 41 CD 4 _Vaa -. x � s r