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HomeMy WebLinkAboutOrdinance 1925 (Beach Park)CLERK'S CERTIFICATE I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, and Ex -Officio Clerk of the Council of said City, do hereby certify that the foregoing: ORDINANCE NO. 1925 AN ORDINANCE OF THE CITY OF SAN RAFAEL APPROVING A LEASE OF REAL PROPERTY LOCATED IN THE CITY OF SAN RAFAEL, BEING A PORTION OF ASSESSOR'S PARCEL NO. 014-152- 27 AND COMMONLY KNOWN AS "BEACH PARK", TO TERRAPIN CROSSROADS, LLP is a true and correct copy of an Ordinance of said City, and was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 2nd day of September, 2014; a SUMMARY of Ordinance No. 1925 was published as required by City Charter in the MARIN INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City, held on the 15th day of September, 2014, by the following vote, to wit: AYES: COUNCILMEMBERS: Colin, Connolly, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Bushey WITNESS my hand and the official Seal of the City of San Rafael this 18th day of September 2014 ESTHER C. BEIRNE City Clerk oe ORDINANCE NO. 1925 AN ORDINANCE OF THE CITY OF SAN RAFAEL APPROVING A LEASE OF REAL PROPERTY LOCATED IN THE CITY OF SAN RAFAEL, BEING A PORTION OF ASSESSOR'S PARCEL NO. 014-152-27 AND COMMONLY KNOWN AS "BEACH PARK", TO TERRAPIN CROSSROADS, LLP WHEREAS, the City of San Rafael owns certain real property located within the City of San Rafael, designated as Marin County Assessor's Parcel No. 014-152-27; and WHEREAS, in 1974 a portion of Assessor's Parcel No. 014-152-27 was developed and dedicated as a public park known as "Beach Park"; and WHEREAS, Beach Park historically has been underutilized and subject to vandalism; and WHEREAS, in 1997 the City entered into an agreement with Herbert Crocker and William McDevitt, owners of an adjacent restaurant facility and property, for the renovation and maintenance of Beach Park; however subsequently that agreement was abandoned and terminated for non-compliance; and WHEREAS, the condition of Beach Park has continued to decline through lack of use, misuse and vandalism, and lack of public resources for maintenance; and WHEREAS, in 2012 the property at 100 Yacht Club Drive, immediately adjacent to Beach Park, was leased by Terrapin Crossroads, LLP ("Terrapin Crossroads") for the operation of a commercial restaurant and entertainment venue; and WHEREAS, in 2013 Terrapin Crossroads approached the City with a proposal for a public/private partnership to resolve issues of vagrancy, sanitation, security, and criminal activity in Beach Park, through a lease of Beach Park from the City; and WHEREAS, the proposed Lease of Beach Park by Terrapin Crossroads allows for specific and substantial exclusive use by Terrapin Crossroads in exchange for renovation, maintenance, security, and management of Beach Park over a seven year term; and WHEREAS, the Park and Recreation Commission at its June 17, 2014 regular meeting determined that the proposed Lease provided the City with public benefit and recommended the concept to the City Council; and WHEREAS, on July 21, 2014 and September 2, 2014 the City Council held a public hearing to receive public comments and to consider the proposed ordinance and lease; and WHEREAS, the City Council finds that for all of the foregoing reasons, it is in the best interests of the City to lease Beach Park to Terrapin Crossroads; and WHEREAS, the City Council finds that approval of the requested lease is for operation, maintenance, and/or minor repairs and alterations of an existing public facility, and therefore 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 Beach Park to Terrapin Crossroads for a term of seven (7) years commencing as of September 15, 2014, at a base rental of Fifteen Thousand Dollars ($15,000) per year and on the other terms set forth in the "Lease Agreement Between the City of San Rafael and Terrapin Crossroads, LLP, September 15, 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, Co ATTEST: 2 :ate of California. , Mayor .e�1664r ESTHER BEIRNE, City Clerk The foregoing Ordinance No. 1925 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the 2nd day of September, 2014 and ordered passed to print by the following vote, to wit: AYES: Councilmembers: Bushey, Colin, Connolly, McCullough & Mayor Phillips NOES: Councilmembers: None ABSENT: Councilmembers: 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 15th day of September, 2014. . ESTHER BEIRNE, City Clerk 3 LEASE AGREEMENT BETNVEEN THE CITY OF SAN RAFAEL AND TERRAPIN CROSSROADS, LLP September 15, 2014 LEASE AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND TERRAPIN CROSSROADS, LLP September 15, 2014 THIS LEASE is made as of September 15, 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 TERRAPIN CROSSROADS, LLP, a California Limited Liability Partnership, (hereafter "TERRAPIN CROSSROADS" 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, commonly known and referred to herein as "Beach Park", being a portion of Assessor's Parcel No. 014-152-27, and more particularly described as follows: Beginning at a point on the Southerly line of the San Rafael Canal at the Northwesterly corner of the lands conveyed to Joseph B. Rice by Deed recorded February 7, 1935 in Book 292 of Official Records at page 482, Marin County Records; thence along the Westerly line of said property (292 OR 482), South 11°44'18" West, 164.00 feet; thence leaving said line (292 OR 482), North 7712'23" West, 189.95 feet; thence North 11'44'18" East, 166.00 feet to the Southerly line of the San Rafael Canal, thence along said Southerly line South 76°36'12" East, 190.00 feet to the point of beginning. Containing 0.7194 Acres more or less. B. Beach Park was designed, installed, and dedicated in May 1974 by CITY as a public serving recreation area. C. In April 1997 CITY entered into an agreement with Herbert A Crocker & Company and William R. McDevitt for the development and maintenance of two parcels of Public Real Property fronting the San Rafael Canal, including Beach Park. D. Beach Park was subsequently improved and maintained under the 1997 agreement for approximately 4 years, when the agreement was terminated de facto. E. Due to limited resources, the CITY's capacity to maintain Beach Park has diminished in recent years to the point of no regular maintenance and a substantial loss of landscape and amenities. F. The CITY's Canal Transportation Plan, the San Francisco Bay `Vater Trail, and the San Rafael General Plan 2020 each promote improvement and public use of the San Rafael Canal. G. TERRAPIN CROSSROADS operates a commercial music and entertainment venue, open to the public Tuesdays through Sundays, adjacent to Beach Park. H. TERRAPIN CROSSROADS wishes to upgrade and maintain Beach Park in exchange for a limited term of substantially -exclusive use to provide food service and entertainment on the site as defined in this Lease. I. CITY has a long-term goal to implement the land use and transportation plans referenced above, but in the interim desires to provide enhanced public use and enjoyment of Beach Park, and acknowledges that allowing TERRAPIN CROSSROADS to lease Beach Park upon the terms and conditions set forth herein would provide to the CITY and its residents the benefit of substantially upgraded park facilities and supervision and security, which CITY is presently unable to provide and which will make Beach Park more attractive and usable by the public for park purposes than it would otherwise be. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. RENTAL OF PREMISES. For valuable consideration, the CITY leases to TERRAPIN CROSSROADS and TERRAPIN CROSSROADS leases from CITY the Premises described in Exhibit `1" hereto, including any improvements located thereon, on the terms, covenants and conditions set out in this Lease (hereafter "the Premises"). 2. TERM. 2.1. Term. The term of the Lease ("Term") shall be for seven (7) years. The Term shall commence as of September 15, 2014 (the "Commencement Date") and shall expire on September 14, 2021 ('Expiration Date"). 2.2. Option. At the expiration of the Term, CITY in its sole discretion, may offer TERRAPIN CROSSROADS the option to renew this Lease for an additional period of seven (7) years or such other term as is agreeable to the parties. 3. RENT. 3.1. Base Rent. TERRAPIN CROSSROADS shall pay the CITY the sum of $15,000 per year as base 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 and credits as provided in Sections 3.2 and 3.3. 2 3.2. CPI-Adiusted Base Rent. a. The annual base rent shall be increased at the commencement of the third year of the term and every two years thereafter during the term 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 (5%); 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 term, 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. 3.3. Credit for Imnrovements. a. CITY shall provide TERRAPIN CROSSROADS with a credit against the base rent or adjusted base rent paid or payable, including a refund for improvements made during the first lease year if appropriate, for costs TERRAPIN CROSSROADS incurs in the acquisition and installation of improvements to the Premises approved by the City as required in Section 5 of this Lease, as documented by TERRAPIN CROSSROADS. Documented expenditures for City - approved improvements to the Premises in excess of $15,000 per Lease year will be credited to the following year(s) rental adjustment. b. TERRAPIN CROSSROADS shall submit to CITY an annual expenditure statement prior to the annual rent payment date to qualify for adjustments to the annual rental fee under this section. 4. USE OF PREMISES. 4.1 Permitted Uses. This Lease shall constitute the Permit and all authorizations required by San Rafael Municipal Code Chapter 8.10 for use of the Premises as described herein. The Premises shall be used for the following uses: a. Public access to personal self-propelled watercraft launch facilities during hours of TERRAPIN CROSSROADS operation. TERRAPIN CROSSROADS shall facilitate access to the dock facilities. b. Public access to Beach Park amenities such as bocce courts and park amenities shall be granted through TERRAPIN CROSSROADS restaurant facilities, subject to 3 the reasonable management of the Premises by TERRAPIN CROSSROADS as set forth in Section 5.4. C. Food service provided b) TERRAPIN CROSSROADS during hours of TERRAPIN CROSSROADS operation. d. TERRAPIN CROSSROADS shall sponsor a minimum of seven (7) events open and free to the public annually as exemplified in Exhibit '`2" attached hereto. TERRAPIN CROSSROADS shall submit its list of planned events, and such other information as may be requested by the CITY, for review and approval by the Parks and Recreation Commission at a regularly scheduled public meeting. e. TERRAPIN CROSSROADS -sponsored entertainment events up to thirty (30) Saturdays per Lease year, between the hours of 10:00 a.m. and 10:00 p.m. Requests for exceptions to Saturday events must be submitted at least thirty (30) days in advance to CITY and are subject to CITY approval. TERRAPIN CROSSROADS may, in its discretion, charge a fee or fees for use of the Premises for these events, notwithstanding Section 5.4(a) or any other provision of this Lease to the contrary. 4.2 Limits on Use. a. TERRAPIN CROSSROADS 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. b. TERRAPIN CROSSROADS shall not allow third party events on the Premises, nor sublet all or any part of the Premises for exclusive uses by third parties. 5. INSTALLATION OF AMENITIES ON PREMISES 5.1 Value of Amenities. During the term of this Lease, TERRAPIN CROSSROADS shall spend not less than One Hundred Thousand Dollars ($100.000.00) for the acquisition and installation on the Premises of the amenities described in Sections 5.2 and 5.3. 5.2. Installation of Dock. TERRAPIN CROSSROADS 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: or CITY approved substitute. The proposed dock shall be approved by the CITY as to style and size prior to purchase, and shall be purchased from a recognized manufacturer and distributor, or fabricated utilizing approved plans and licensed contractors. The dock shall be installed off the Promenade public easement, adjacent to the TERRAPIN CROSSROADS outdoor dining area. Nothing in this section shall be deemed to excuse TERRAPIN CROSSROADS 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, 4 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. TERRAPIN CROSSROADS shall pursue applications for all such required pen -nits and approvals in an expeditious manner following execution of this Lease. TERRAPIN CROSSROADS 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. 5.3 Beach Park Amenities. TERRAPIN CROSSROADS shall provide concept plans produced by a licensed landscape architect for review and approval by the Park and Recreation Commission at a public meeting. Such plans will contain the type and location of recreation, landscape, seating, sidewalk, fencing, gate and any other element proposed for the Premises. Plans shall include design and site location of permanent signage indicating location of amenities, and hours of use, and temporary signage announcing events. Once approved frill and detailed construction documents will be submitted, reviewed as per the appropriate CITY review and permit process. A list of amenities is attached as Exhibit "Y' hereto. Nothing in this section shall be deemed to excuse TERRAPIN CROSSROADS 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 and/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. TERRAPIN CROSSROADS shall pursue applications for all such required permits and approvals in an expeditious manner following execution of this Lease. 5.4. Use of Dock and Amenities and Premises. a. Use by the public, during hours prescribed under Section 4.1.b shall be free of charge, and shall not be conditioned upon a requirement for purchase of food or beverages from TERRAPIN CROSSROADS. b. Use of the Premises shall be monitored, including but not limited to unlocking and locking facilities, accesses and site as per the proscribed schedule in Section 4.1 of this Lease, by TERRAPIN CROSSROADS representatives or contractual security services, at the sole cost of TERRAPIN CROSSROADS. C. TERRAPIN CROSSROADS may control access to the Premises during hours of public use, for the purpose of protecting and promoting the safe and peaceful enjoyment of the Premises by the public, and may refuse access to or eject from the Premises those persons deemed, in TERRAPIN CROSSROADS's reasonable discretion, to pose a safety or security risk to other guests or users of the Premises or adjacent properties. d. TERRAPIN CROSSROADS shall not allow dogs or pets to enter the Premises, nor allow smoking or loitering on the Premises. 5 e. Works of art purchased or donated and installed on the Premises are the property of TERRAPIN CROSSROADS and shall be removed from the Premises at the termination of this Lease. CITY shall have no liability for losses or damages to any works of art installed on the Premises by TERRAPIN CROSSROADS hereunder. 6. UTILITIES. TERRAPIN CROSSROADS shall make all arrangements for and shall pay for all utilities and services furnished to the Premises and or used by TERRAPIN CROSSROADS, including, \kithout 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 TERRAPIN CROSSROADS shall be owned by TERRAPIN CROSSROADS until expiration of the Term or any renewal thereof, or the earlier termination of this Lease. All improvements, including the TERRAPIN CROSSROADS dock, on the Premises at the expiration of the Term or any renewal thereof, or the earlier termination of this Lease shall, without compensation to TERRAPIN CROSSROADS, then automatically and without any act of TERRAPIN CROSSROADS or any third party become the property of the CITY. TERRAPIN CROSSROADS agrees to execute, acknowledge, and deliver to the CI`T'Y 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. For purposes of this Lease, art installations shall be considered to be "alterations" rather than "improvements to the Premises." 8. MAINTENANCE AND REPAIRS. 8.1. Lessee's Duty to Maintain Premises. At all times during the term, TERRAPIN CROSSROADS shall, at its sole cost and expense, keep and maintain the Premises and all improvements and amenities 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. TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS shall indemnify and save harmless the CITY against all actions, claims, and damages by reason of TERRAPIN CROSSROADS'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 or any extension thereof. 0 8.3. Mechanic's Liens. TERRAPIN CROSSROADS shall not suffer or permit to be enforced against the Premises, or any part thereof, any mechanic's, material man's, contractor's or subcontractor's liens arising from any work of construction, repair, restoration, replacement or improvement, or any other claim or demand; TERRAPIN CROSSROADS 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. TERRAPIN CROSSROADS 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, TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS and its authorized representatives arising out of or in connection with TERRAPIN CROSSROADS'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 TERRAPIN CROSSROADS'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, TERRAPIN CROSSROADS shall increase the insurance coverage as reasonably required by the CITY. 9.2. TERRAPIN CROSSROADS's Fire Insurance for Personal Pronerty. TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS for the replacement of said personal property or for the restoration of TERRAPIN CROSSROADS 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 insured's under the policy. C. Provide, or be endorsed to provide, that TERRAPIN CROSSROADS'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 7 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, TERRAPIN CROSSROADS shall submit to the CITY Attorney for approval as to form and sufficiency: (1) Certificates of Insurance evidencing the insurance coverage 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) excemts of tpolicv lanauaae or specific endorsements evidencinp- 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. TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS'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, 'TERRAPIN CROSSROADS'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 frill 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, TERRAPIN CROSSROADS 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, TERRAPIN CROSSROADS may elect 8 to terminate this Lease by giving notice to the CITY within thirty (30) days after determining the restoration costs and replacement value. If TERRAPIN CROSSROADS does not so elect to terminate the Lease, TERRAPIN CROSSROADS 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. TERRAPIN CROSSROADS's Restoration of the Premises. If the Premises are destroyed or damaged during the Lease Term and TERRAPIN CROSSROADS is required to restore the Premises, the restoration shall be accomplished as follows: a. TERRAPIN CROSSROADS shall complete the restoration within one hundred eight}, (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 TERRAPIN CROSSROADS's reasonable control). b. TERRAPIN CROSSROADS shall notify the CITY of the commencement date of construction related to the restoration not later than ten (10) days before commencement oI' such work. C. TERRAPIN CROSSROADS 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 (109 o) 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, TERRAPIN CROSSROADS 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. 11.5. Waiver of Civil Code Sections, TERRAPIN CROSSROADS waives the provisions of Civil Code §1932(2) and Civil Code §19'33(4) and any successor statutes with respect to any destruction of the Premises. 12. ASSIGNMENT. 12.1 Assignability. TERRAPIN CROSSROADS 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, TERRAPIN CROSSROADS's use of Premises pursuant to Sections 4 and 5 of this Lease. 0 12.2 Transfer of Lease. The Lease is specific to TERRAPIN CROSSROADS and CITY, and shall not transfer to any third party, subsequent owner, or operator of the restaurant venue or business interest. 13. DEFAULT. 13.1. TERRAPIN CROSSROADS's Default. The occurrence of any of the following shall constitute a default by TERRAPIN CROSSROADS: 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 TERRAPIN CROSSROADS. If the default is curable, but cannot reasonably be cured within thirty (30) days, then TERRAPIN CROSSROADS shall not be in default of this Lease if TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS. f. Any attaclunent, execution, levy, or seizure under legal process, of TERRAPIN CROSSROADS's interest in Premises. g. Appointment of a receiver to take possession of TERRAPIN CROSSROADS's interest in Premises, for any reason. h. Filing of a petition of bankruptcy by or against I ERRAPIN CROSSROADS. Any other event designated by this Lease as an event of default. 13.2. Notice of TERRAPIN CROSSROADS Default. Notices of default given under this section shall specify the alleged default and the applicable lease provisions and shall demand that TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS in the event of a default and are not in addition to any statutory notices required under the unlawful detainer statutes of California. 10 13.3. CITY's Remedies. a. Nature of Remedies. The CITY shall have the following remedies if TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS's RiLyht to Possession. The CITY may terminate TERRAPIN CROSSROADS's right to possession of the Premises at any time if TERRAPIN CROSSROADS fails to cure a default within thirty (30) days. No act by the CITY other than giving specific written notice to TERRAPIN CROSSROADS of the CITY's intent to terminate TERRAPIN CROSSROADS'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 TERRAPIN CROSSROADS's right to possession of the Premises. C. CITY's Right to Cure TERRAPIN CROSSROADS's Default. The CITY, at any time after TERRAPIN CROSSROADS commits a default, may, but need not cure the default at TERRAPIN CROSSROADS's cost. If the CITY at any time, by reason of the TERRAPIN CROSSROADS'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 TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS. 14. CITY'S ENTRY ON PREMISES. The CffY, 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 TERRAPIN CROSSROADS 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 allo�N ed under the provisions of this Lease or required by law. 15. NOTICE. All notices and other communications required to or permitted under this Lease 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. 11 The CITY: CITY of San Rafael Attention: CITY Clerk 1400 Fifth Avenue San Rafael, California 94901 with copv 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 TERRAPIN CROSSROADS: Phil and Jill Lesh, Owners Terrapin Crossroads 100 Yacht Club Dr. San Rafael, CA 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 part) 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, TERRAPIN CROSSROADS shall surrender to the CITY the Premises and all improvements thereon in good condition, except for ordinary wear and tear. TERRAPIN CROSSROADS shall remove all its personal property within thirty (30) days following expiration or termination of the Lease. TERRAPIN CROSSROADS shall perform all restoration to the Premises made necessary by the removal of any alterations or TERRAPIN 12 CROSSROADS"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 TERRAPIN CROSSROADS's personal property that TERRAPIN CROSSROADS 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 TERRAPIN CROSSROADS. Title to any such alterations, or TERRAPIN CROSSROADS'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. TERRAPIN CROSSROADS waives all claims against the CITY for any damage to TERRAPIN CROSSROADS resulting from the CITY's retention or disposition of any such alterations to TERRAPIN CROSSROADS's personal property. TERRAPIN CROSSROADS shall be liable to the CITY for the CITY's costs for storing, removing, and disposing of any alterations or TERRAPIN CROSSROADS's personal property. If TERRAPIN CROSSROADS fails to surrender the Premises to the CITY on expiration of the term as required by this section, TERRAPIN CROSSROADS shall defend, indemnify, protect, and hold the CITY harmless from all damages, claims, or liabilities resulting from the TERRAPIN CROSSROADS's failure to surrender the Premises, including, without limitation, claims made by a succeeding tenant resulting from the TERRAPIN CROSSROADS's failure to surrender the Premises. 18.2. Holdinp- Over. If TERRAPIN CROSSROADS, with the CITY's prior consent, remains in possession of the Premises after expiration or termination of the term, or atter the date in any notice given by the CITY to TERRAPIN CROSSROADS terminating this Lease, such possession by TERRAPIN CROSSROADS 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 part), 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. d. Non -Discrimination. TERRAPIN CROSSROADS 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 Lav; Venue. This Lease shall be construed and interpreted in 13 accordance with the laws of the State of California. Any and all actions to enforce this Lease shall be conducted in the County of Marin, California. b. Inteerated Atzreement; 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. f. Severabilit`•. The unenforceability, invalidity, or illegality of any provision of this Lease shall not render the other provisions unenforceable, invalid, or illegal. f. Compliance. On behalf of CITY the San Rafael Park and Recreation Commission shall annually revie�� with TERRAPIN CROSSROADS the performance of both parties for compliance and to resolve outstanding issues. 19.3. Taxes. TERRAPIN CROSSROADS is advised that this Lease may create a possessor, interest, or some other interest subject to taxation or assessment. TERRAPIN CROSSROADS understands, acknowledges, and agrees that it is solely responsible for payment of any and all applicable taxes. 19.4. Compliance with all Laws. TERRAPIN CROSSROADS 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 Lease. TERRAPIN CROSSROADS 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 e wally between the two parties. J Initials: CITY TERRAPIN CROSSROADS IN WITNESS WHEREOF, this Lease is hereby executed in duplicate as of the date first 14 above written. CITY OF SAN RAFAEL A California Municipal Corporation By: G 0. P 7 I LIPS, Mayor Dated: � � � `ID—� ATTEST : ESTHER BEIRNE, CITY Clerk APPROVED AS TO FORM: ROBERT F. I:PS I'EI1k, CITNI ttorney 15 TERRAPIN CROSSROADS, LLP A California Limited Liability Partnerslrifr Title: Dated: --- Exhibit 2 Lease Agreement Behveen City of San Rafael and Terrapin Crossroads List of Sample Free Public Events to be provided by Terrapin Crossroads at Beach Park I. Family Movie Nights 2. Sunday Afternoon Kid's Events (arts and crafts, music, hula hoops, bubbles, games) 3. Festival of Kites - Make and fly your kite 4. Regular Children's Story Hour 5. Saturday afternoon Jazz 6. Remote Controlled Motor Sailboat Workshop and exhibition 7. Bocce Tournaments 8. Dog Shows 9. Campfire Sing-Alongs 10. Oktoberfest with dancers, singers and games 11. Easter Egg Hunt 12. Parade of Lights Viewing Party t7 Exhibit 3 Lease Agreement BetNveen Cit} of San Rafael and Terrapin Crossroads List of Improvements to Beach Park provided by Terrapin Crossroads 1. Renovation plan, submitted for approvals and permits, by a licensed Landscape Architect 2. Installation of a site perimeter construction fence I Demolition of existing bocce courts, volleyball posts, failing wood structures on site 4. Removal of dead palm trees 5. Removal of contaminated sand, replacement with decomposed granite surface 6. Installation of gated, ADA accessible personal water craft dock 7. Installation of two (2) bocce courts 8. Installation of seating and picnic facilities 9. Installation of permanent security fencing on site 10. Installation of children's swings, and/or play features with safety surfacing 11. Installation of landscape and irrigation system 18