HomeMy WebLinkAboutWest 15th Street, 883 (Pacifica Christian School)RECORDING REQUESTED AND Recorded in Official Records, Orange County
WHEN RECORDED RETURN TOt n^i yen, Clerk-Recorderll
NO FEE
Office of the City Clerk*$ R 0 0 0 7 0 1 8 s 3 9$
City of Newport Beach p 01400040939310:12 am 10/08/14
100 Civic Center Drive (js M10 7
PO Box 1768 00 0.00 0.00 18.00 0.00 0.00 0.00
Newport Beach, CA 92658
[Exempt from Recordation Fee - Govt. Code §§ 6103 & 27383]
i
MEMORANDUM OF LEASE AGREEMENT"i
This Memorandum of Lease Agreement ("Memorandum") is dated `,- ),E]Pr. 2V
2014, and is made between City of Newport Beach, a California municipal corporation
and charter city ("City") and Pacifica Christian High School - Orange County, a
California non-profit corporation ("Tenant"), concerning the Property described in Exhibit
"A," attached hereto and by this reference made a part hereof.
For good and adequate consideration, City leases the Property to Tenant, and Tenant
leases the Property from City, for the term and on the provisions contained in the
Agreement dated ��P, T. 21G, 2014, including without limitation provisions
prohibiting assignment, subleasing, and encumbering said leasehold without the
express written consent of City in each instance, as well as provisions for an option to
extend the Agreement for up to two (2) successive five (5) year terms and a first right of
refusal to purchase the Property subject to City's compliance with applicable surplus
property statutes, all as more specifically set forth in said Agreement, which said
Agreement is incorporated in this Memorandum by this reference.
The Agreement's term is ten (10) years, beginning and ending
C1 ZCL • -2.2'1 , unless extended by the parties.
This Memorandum is not a complete summary of the Agreement. Provisions in this
Memorandum shall not be used in interpreting the Agreement's provisions. in the event
of conflict between this Memorandum and other parts of the Agreement, the other parts
shall control. Execution hereof constitutes execution of the Agreement itself.
[Signatures on the next page]
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease as of the dates written below.
��1
City of Newport Beach
a California Municipal Corporation
Date:
Dave-Kif_i, City Manager
ATTEST:
Date: J
Leilani I. Brown
City Clerk
APPROVED
Date:
Aaron C. Har
City Attorney
TENANT
Pacifica Christian High School -Orange
County
a California non-profit corporation
Date: 1115114r
By: l W
Keith Carlson
President
By p...
David Bahnsen
Vice President/Treasurer
NOTARY ACKNOWLEDGMENT
State of California )
County of ORANGE )
On ec p 2l 2Cil-1 before mejCINNiFEv- 1)Ao�vr Notary Public,
personally appeared DAVE KIFF, who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity(ies), and that by his signature on the instrument
the person, or the entity upon behalf of which the person(s) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California
County of ORANGE
WMNN MULVEY
# 2045022
- California i
County D fires Oct 12, 2017'
NOTARY ACKNOWLEDGMENT
On before me,C/`}rI rt ts, f fSfY? Notary Public,
personal) appeared Ke144, &-tIS5 who proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that s/he executed the same in his/her authorized
capacity(ies), and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _ _
CHRISTINFIG. ANDERSON
Commission # 1979968
s s Notary Public -California z
Orange County
(Seal) My Comm. Expires May 28, 2016
j u R l �, �'I �
I
STATE OF CALIFORNIA }ss
COUNTY OF ORANGE }
On J 7277 .hW /, . 2014, before me Judi Lowenthal, Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(.t) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand a dofficiall seajr
n /ter JUDI I.OWENTNAL
Sature ��� COMM.# 1919326
ign
.. NOTARY PUBLIC- CALIFORNIA
ORANGE COUNTY
MY COMM. EXP. JAN. 25, 2015 "°
(NOTARY SEAL)
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could
prevent fraudulent attachment of this certificate to another document.
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW.
Title of Document Type RI v FxSg /% "Lr
Number of Pages Date of Document
Signer(s) Other Than Named Above
All Purpose Acknowledgment
EXHIBIT "A"
Property Depiction
Pacifica Christian High School - Orange County Page A-1
EXHIBIT "A"
Property Depiction
PARCEL MAP NQ 88-285
CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA
50RHAV .6 A550C INC.
aoaH o, ua 4
0. L S ll'12.p
c 19 44[CT
I �
Iv
t
HONUMCNT NOTEh
80.515 Of BEPAINGh
3
j
0
nwn+m, �a +'mmgm_n° w ro xamvsw __ .^»31_T, ,. ... .. R•'x pw-+sw. . __; 'P ,. w.pra � mmxwx'.w.n+ocnawmywwu
Pacifica Christian High School - Orange County Page A-2
EXHIBIT "A"
Property Depiction
Pacifica Christian High School - Orange County Page A-3
GROUND LEASE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
PACIFICA CHRISTIAN HIGH SCHOOL OF ORANGE COUNTY
This Lease greement ("Agreement") is made and entered into as of the
�, P1 l_
L_day of. yust1 014 ("Effective Date"), by and between the City of Newport Beach,
a California municipal corporation and charter city ("City'), and Pacifica Christian High
School - Orange County, a California non-profit corporation ("Tenant"). City and Tenant
are sometimes individually referred to as "Party' and collectively as "Parties" herein.
RECITALS
A. City is the owner of the property, structures, and improvements commonly
known as West Newport Community Center located at 883 West 15th Street, Newport
Beach, California [Assessor's Parcel Number 424-011-37] ("Property"). The Property
includes an existing 17,455 square foot, two-story building with gymnasium, on-site
parking, and play area and is depicted on Exhibit "A" attached hereto and incorporated
herein by this reference.
B. City owns fee simple title to the Property pursuant to an Agreement
between the City and Newport Campus Church dated October 10, 1988.
C. Tenant is a non-profit corporation commonly known as Pacifica Christian
High School - Orange County ("Pacifica Christian High School"). Pacifica Christian High
School is to be operated as a private school with instruction for ninth through twelfth
grade.
D. Tenant proposes to lease the Property including the existing 17,455
square foot, two-story building with gymnasium, on-site parking, and play area. Subject
to City review and approval as to scope, Tenant may make modifications and
improvements to the existing buildings, site, and equipment which may be necessary to
operate the Property as a high school. The Property is depicted and legally described
on Exhibit "A" attached hereto and incorporated herein by this reference. Tenant may
begin constructing the necessary improvements upon execution of this Agreement and
delivery of the Property, subject to receipt of necessary permits and approvals, but in no
event before September 15, 2014. Equipment (as defined in Recital "E") may not be
removed until the Shared Use Termination Date (as defined in Section 5.3), or at the
time in which new Equipment is installed on the Property by Tenant to replace the
existing Equipment, pursuant to Section 8.1.2,whichever occurs first. Construction shall
not have a material impact or prevent City's use of the various classrooms, equipment,
and associated parking on the Property (i.e. installation of partition walls to demise
Room 2 and Room 4), subject to the schedule attached as "Exhibit B" attached hereto
and incorporated herein by this reference. Further, Tenant shall insure that restrooms
are available for use during City's recreation programming. Improvements to building
and site must comply with current building code requirements (Le. ADA compliance).
E. The playground equipment ("Equipment') on the Property consists of that
which is fully depicted in "Exhibit A" attached hereto and incorporated herein by this
reference.
F. Further, all Tenant modifications and improvements to the existing
buildings, site, and Equipment, including parking restrictions, are subject to the City
Zoning Administrator approval, as resolved in Resolution No. ZA2014-031 (PA2014-
045) on August 14, 2014 and any future amendments or revisions thereto and attached
hereto and incorporated herein by this reference as "Exhibit C."
G. Pursuant to City Council Policy F -7(B), the City sought the assistance of
an appraiser to determine the fair market value rent for the Property. Under City
Council Policy F -7(E)(3) and (5), the City did not conduct an open bid process because
converting the Property to another use or changing the manager, concessionaire or
lessee of the Property would result in excessive vacancy, relocation or severance costs,
which would outweigh other financial benefits and the Property provides an essential or
unique service to the community that might not otherwise be provided were full market
value of the Property be required. Although the City did not conduct an open bid
process, the City shall charge Tenant the fair market value rent for the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
City and Tenant hereby agree as follows:
DEFINITIONS
1.1 General Definitions. As used in this Agreement, the following words and
phrases shall have the following meanings:
(a) Alteration — any improvements, additions, alterations, changes, or
modifications of the Property made by Tenant, its employees, agents, contractors, and
subcontractors.
(b) Authorized City Representative — the City Manager or his/her
designee.
(c) Commencement Date — the date the City delivers possession of the
Property to Tenant in the condition provided in Section 8.1.
(d) Expiration — the lapse of the time specified as the Term of this
Agreement, including any extension of the Term resulting from the exercise of an option
to extend.
(e) Law(s — any judicial decision, statute, constitution, ordinance,
resolution, regulation, rule, administrative order, or other requirement of any municipal,
county, state, federal, or other government agency or authority having jurisdiction over
the Parties hereto or the Property.
Pacifica Christian High School - Orange County Page 2
(f) Maintenance or Maintain — repairs, replacement, maintenance,
striping, repainting, and cleaning.
(g) Person — one (1) or more natural persons, or legal entities,
including, without limitation, partnerships, corporations, trusts, estates, associations, or
a combination of natural persons and legal entities.
(h) Provision — any term, covenant, condition, or clause in this
Agreement that defines, establishes, or limits the performance required or permitted by
either Party.
(i) Rent — includes rent, taxes, and other similar charges payable by
Tenant under the provisions of this Agreement.
Q) Successor— assignee, transferee, personal representative, heir, or
other Person succeeding lawfully, and pursuant to the provisions of this Agreement, to
the rights or obligations of either Party.
(k) Term — the Initial Term, as the same may be extended by the
Option Term pursuant to the provisions of this Agreement.
(1) Termination — the termination of this Agreement, for any reason,
prior to Expiration.
1.2 Other Definitions. — The following additional terms are defined in the
following sections of this Agreement:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
2. PROPERTY
Rent §4
Hazardous Materials §16
Indemnified Parties §10.1
Option Term(s) §3.2
Property Recitals, §A
Equipment Recitals, §E
Initial Term §3.1
Tenant Improvements §8.1
City finds it to be consistent with public facility uses to grant Tenant a right to
remodel, maintain, use and operate the existing 17,455 square foot two-story building
with gymnasium, on-site parking, and play area on the Property. Therefore, subject to
Pacifica Christian High School - Orange County Page 3
the terms and conditions set forth herein, City hereby leases to Tenant and Tenant
agrees to lease the Property in an "as is" condition as tendered from City, subject to any
representations, warranties and covenants of the City specifically set forth in this
Agreement. Tenant agrees that no representations with respect to the condition or
improvements of the Property have been made by City except as specifically set forth in
this Agreement.
3. TERM
3.1 Term of Agreement. The initial term of this Agreement shall be ten (10)
years from the Commencement Date ("Initial Term"), unless terminated sooner as
provided in this Agreement, or extended as provided in Section 3.2.
3.2 Option to Extend. Provided Tenant is not then in default under this
Agreement beyond applicable notice and cure periods, Tenant may extend the term of
this Agreement for two (2) additional successive terms of five (5) years (the "Option
Term") commencing on Expiration of the Initial Term or an Option Term, on the same
terms and conditions as contained in this Agreement. Tenant must exercise its option
by giving City written notice of its intention to extend the Term at least six (6) months
prior to Expiration of the Initial Term or an Option Term.
3.3 Purchase Option. Subject to City s obligation to first comply with the
Surplus Lands Act (Cal. Govt. Code §§ 54220, et seq.) and provided Tenant is not in
default under this Agreement beyond applicable notice and cure periods, , City shall, in
good faith and upon the same material terms as would be offered to other private
parties, grant Tenant a continuing First Right of Refusal (FROR) to purchase, should
City elect to transfer the Property. For purposes of this Agreement, "transfer" and similar
terms mean and include, without limitation, a sale or other transfer of all or any part of
the Property, or interest therein, either alone, or as part of a larger sale, provided,
however, that "transfer" shall not include the granting of an easement or similar right on
a portion of the Property that would not materially interfere, disrupt, or frustrate
Tenant's contemplated use pursuant to this Agreement.
3.4 Hold Over. Should Tenant, with City's consent, hold over and continue in
possession of the Property after Expiration of the Term or any Option Term, Tenant's
continued occupancy of the Property shall be considered a month-to-month tenancy
subject to all the terms and conditions of this Agreement, except the provisions of
Sections 3.1 and 3.2.
3.5 Redevelopment of Property. Should City redevelop the Property for City
use during the term of this Agreement, or any extensions thereof, which will materially
interfere with Tenant's ability to occupy or use all or a portion of the Property, City shall
provide Tenant with at least two (2) years' prior written notice of termination of this
Agreement, and in no event shall City commence redevelopment of the Property until at
least two (2) years after Tenant's receipt of such written notice.
Pacifica Christian High School - Orange County Page 4
! Mkgw
4.1 Rent. Tenant shall commence payment of rent upon the Commencement
Date. The "Rent," which includes the use of the Property, shall be established at Two
Hundred Eighty Nine Thousand, Fifty Four Dollars and 80/100 Cents ($289,054.80) per
year. Rent shall be paid, in advance, in equal monthly installments on the first day of
each month (e.g., Twenty Four Thousand, Eighty Seven Dollars and 90/100 Cents
($24,087.90) per month). Rent for any partial month shall be prorated in accordance
with the actual number of days in that month and shall be due on the first day of that
month that falls within the Term.
Rent due hereunder will be subject to the rent adjustment provisions of
Section 4.2 below. Tenant shall send said rent to the mailing address or send an
electronic fund transfer via the web address provided in Section 4.5. Tenant shall be
responsible for any delays in the mode of sending the rent payment to City.
4.2 Rent Adjustments. Rent may be adjusted on the 1St anniversary of the
Commencement Date and then on the 1St of each Lease Year thereafter (the term
"Lease Year' as used herein refers to successive twelve (12) month periods,
commencing with the Commencement Date of this Agreement) to reflect increases in
the cost of living as indicated by the Consumer Price Index described below, except as
set forth in Section 4.3. Rent may be adjusted if the Consumer Price Index for the Los
Angeles — Orange County - Riverside Area, All Urban Consumers, All Items ("Index"),
as published by the United States Department of Labor, Bureau of Labor Statistics
("Bureau"), increases over the Base Period Index. The initial "Base Period Index" shall
be the Index for the calendar month which is four (4) months prior to the month of the
Commencement Date. The initial Base Period Index shall be compared with the Index
for the same calendar month for each subsequent Lease Year ("Comparison Index").
The Comparison Index used for a given year's adjustment calculation will become the
Base Period Index for purposes of the next annual Rent adjustment calculation. If the
Comparison Index is higher than the Base Period Index, then Rent for the next Lease
Year shall be increased by the amount of such percentage change. Should the Bureau
discontinue the publication of the above Index, or publish same less frequently, or alter
same in some other manner, then the Parties shall adopt a substitute Index or substitute
procedure which reasonably reflects and monitors consumer prices. City shall notify
Tenant in writing of any annual adjustment pursuant to this Section 4.2 at least thirty
(30) days prior to the effective date of such adjustment, but in no event sooner than
thirty (30) days from the notice date.
4.3 Rent Reductions (City Use of Property). Rent shall be reduced by thirty
percent (30%) during City's shared use of Rooms 2 and/or 4, the gym and Equipment,
pursuant to Section 5.3 and the schedule shown on "Exhibit B." Rent shall be reduced
by twenty percent (20%) during City's shared use of the gym and Equipment, pursuant
to Section 5.3 and the schedule shown on "Exhibit B." The rental rate shall be adjusted
to one hundred percent (100%) upon the Shared Use Termination Date as defined in
Section 5.3.
Pacifica Christian High School - Orange County Page 5
4.4 Notwithstanding the Index adjustments described above, if City, in its sole
and absolute discretion, believes that notwithstanding such adjustments pursuant to
Section 4.2, Rent, as adjusted, does not accurately reflect the fair market rental value of
the Property the "FMR"), City may elect to adjust Rent at the commencement of the
eleventh (11t ) Lease Year to reflect the FMR pursuant to this Section (which
adjustment shall be in lieu of the adjustment pursuant to Section 4.2). City shall provide
written notice to Tenant if it elects to adjust rent under this Section and such Rent
adjustment shall become effective no sooner than nine (9) months after notice. Within
thirty (30) calendar days thereafter, City and Tenant will attempt in good faith to agree
upon an adjustment in Rent based upon the FMR. If City and Tenant are unable to
agree within such thirty (30) calendar day period, the Property will be appraised to
determine its fair market rental value in accordance with this Section. City shall, within
ten (10) days after the expiration of such thirty (30) day period, submit to Tenant three
(3) California licensed appraisers experienced in commercial real estate lease
appraisal, and experience in commercial real estate in the Newport Beach, California
area; Tenant shall select one (1) appraiser from the three (3) submitted appraisers to
appraise the Property. City shall pay all costs associated with the appraiser and the
appraisal. The fair market rental value determined by the appraiser will constitute rent
for the eleventh (11th) Lease Year and each successive year remaining on the
Agreement; provided, however, that in no event will Rent so determined be less than
that otherwise payable through the annual Index adjustments described above.
4.5 Payment Location. All payments of rent shall be made in lawful money of
the United States of America and shall be paid to City in person or by United States'
mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive,
P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may
from time to time designate in writing to Tenant. If requested by City, Tenant shall make
payments electronically (at www.newportbeachca.ctov) or by wire transfer (at Tenant's
cost). Tenant assumes all risk of loss and responsibility for late charges and
delinquency rates if payments are not timely received by City regardless of the method
of transmittal.
4.6 Late Payment. Tenant hereby acknowledges that the late payment of
Rent or other sums due hereunder will cause City to incur costs not contemplated by
this Agreement, the exact amount of which is extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges. Accordingly,
any payment of any sum to be paid by Tenant not paid when due and then within five
(5) calendar days of its due date shall be subject to a ten percent (10%) late charge.
City and Tenant agree that this late charge represents a reasonable estimate of such
costs and expenses and is fair compensation to City for its loss suffered by such late
payment by Tenant.
4.7 Interest on Unpaid Sums. Unpaid sums due to either City or Tenant under
this Agreement shall bear interest at the rate of ten percent (10%) per annum on the
unpaid balance, including but not limited to late payment penalties, from the date due
until paid.
Pacifica Christian High School - Orange County Page 6
4.8 Additional Rent. Any provision in this Agreement that requires Tenant to
pay additional amounts classified as "additional rent" shall be paid within thirty (30)
calendar days of City's written demand therefor (unless a different time for payment is
expressly provided in this Agreement). Additional rent does not reduce or offset
Tenant's obligations to pay Rent.
5. BUSINESS PURPOSES AND USE OF PROPERTY
5.1 Business Purposes. The Property is to be used by Tenant for the
construction, maintenance, use, and operation of a high school and for no other use.
The Tenant shall be responsible for obtaining all required permits and licenses for the
construction, maintenance and operation of the high school and complying with all
applicable conditions imposed by such permits and licenses. Tenant shall have use of
the Property throughout the Term, subject to the City's shared use rights set forth in
Section 5.3
5.2 Operation of Property. Tenant shall operate and manage the Property in a
manner comparable to other private high schools providing similar uses and services.
Except with respect to any entry onto and/or use of the Property by City, its employees,
contractors, agents, customers, invitees, elected officials, and volunteers, Tenant is
responsible for the security of the Property and must close and secure all points of
access each night. Tenant use of the Property shall comply with all use permits,
conditions, laws, and terms of this Agreement.
5.3 Shared Use of Lease Property. Tenant shall continue to allow City to
use portions of the Property, including restrooms, during the times specified on "Exhibit
B", which may be amended in writing from time to time by mutual agreement of Tenant
and City, each acting reasonably and in good faith, as follows: (a) use of the gymnasium
for City's programming, (b) use of the gymnasium by local schools and youth sports
leagues, such as Carden Hall and Newport Junior Basketball League at a reasonable
rate, consistent with the City's facility rental rates; (c) use of Room Four (4) for City's
programming; and (d) use of Room Two (2) for City's programming. All of City's shared
use rights shall terminate upon the date on which City confirms in writing that it no
longer requires shared use of the Property (the "Shared Use Termination Date"). Tenant
shall have the right to use the gymnasium and Room Four (4) at any time not reserved
for City use, as specified on "Exhibit B," and at such other times as may be permitted by
City. Tenant shall be responsible for any damage to City equipment in Room Four (4)
resulting from any entry into and/or use of Room Four (4) by Tenant and/or any of its
employees, contractors, agents, representatives, customers, students, and invitees.
Tenant shall ensure that all City equipment in Room Four (4) is returned to its original
set-up or configuration, should Tenant require use of the room. City shall remove all
such equipment promptly upon termination of City's right to use Room Four (4). Tenant
shall not have use of Room Two (2) until such time the room is no longer used for
programming by City; existing gymnastics equipment must remain in place and cannot
be reconfigured for temporary use by Tenant. City may require use of Room Two (2)
outside of the times specified on "Exhibit B;" reserved through the City Recreation &
Senior Services Department. City shall not permit any use of the Property pursuant to
Pacifica Christian High School - Orange County Page 7
this Section 5.3 (i) other than strictly during the times set forth herein and as may be
amended from time to time and/or (ii) in any manner that results in unreasonable wear
and tear and/or requires janitorial or other maintenance work in excess of the type and
amount of such work that would be reasonable and customary for City's contemplated
use unless otherwise agreed upon by City and Tenant.
City shall cooperate with Tenant, act reasonably and in good faith, and
communicate with Tenant regularly and proactively regarding any potential for City's
shared use beyond the initially contemplated time periods. City shall not assign its
shared use rights under this Agreement to a third party, without Tenant's written
consent. At any time during City's exercise of the Shared Use of the Property, Tenant
shall have the option to give one (1) year's written notice to terminate this Agreement.lf
Tenant exercises this termination right, Tenant shall, at its cost, (i) surrender the
Property on the applicable termination date in a condition reasonably acceptable to the
City, that permits City to continue its use of the Property in the same manner as before
the lease and Tenant's use of the Property; and (ii) remove Tenant's signage and other
identifying marks and repair any damage caused thereby.
After the expiration of the Shared Use term, City and Tenant shall meet in good
faith to discuss the possibility to allow other community groups to use and/or sublet the
Property
5.4 Prohibited Uses. Tenant shall not use the Property for any purpose other
than a high school. The high school is for the exclusive use of the Tenant's employees,
contractors, agents, volunteers, guests and invitees. Use of the Property for a
temporary construction yard or any construction staging is strictly prohibited, except in
connection with the construction of any tenant improvements in accordance with
Section 8. Tenant shall not hold the Property open for use by the general public. Tenant
shall not use or permit the use of the Property in any manner that: (a) creates a
nuisance; or (b) violates any Law. Further, Tenant shall limit events or activities (i.e.
deliveries, sporting events, dances, etc.) at the high school between the hours of 10:00
p.m. and 7:00 a.m., which may create noise or be disruptive to the neighboring
residential properties.
5.5 Signage. Tenant may install permanent signage upon the Property in
such locations as Tenant desires, but until the Shared Use Termination Date shall
ensure that identifying and directional signage for shared use of the Property for City
programs is maintained and installed. The existing West Newport Community Center
monument sign shall remain in place until the Shared Use Termination Date. Tenant
must obtain necessary approvals and permits for signage, which must comply with
applicable City regulations and conditions (which consent shall not be unreasonably
withheld, conditioned or delayed). All signage placed by Tenant on, in or about the
Property shall remain the property of Tenant and shall be removed by Tenant upon
termination or expiration of this Agreement at Tenant's expense, and any damage
caused by removal shall be repaired at Tenant's expense.
5.6 Parking. Tenant shall provide no less than twenty-five (25) on-site parking
Pacifica Christian High School - Orange County Page 8
stalls for City program use during school hours until notified in writing by the City that
the spaces are no longer required, or the Shared Use Termination Date, whichever
occurs first. Tenant must comply with the parking requirements outlined in the minor use
permit conditions approved and adopted by Zoning Administrator Resolution No.
ZA2014-031 (PA2014-045) on August 14, 2014 and any future amendments or
revisions thereto. Non-compliance with these conditions shall constitute a default under
this Agreement, and subject to the provisions of Section 14, City shall have the rights to
terminate this Agreement.
5.7 Personnel. Tenant shall be responsible for hiring the necessary personnel
to conduct the daily operation of a high school. Tenant shall comply with all applicable
federal, state, and local Laws related to minimum wage, Social Security,
nondiscrimination, ADA, unemployment compensation and workers' compensation.
5.8 Independent Contractor. It is understood that Tenant is an independent
contractor and not an agent or employee of City. The manner and means of operating
the Property are under the control of Tenant, except to the extent they are limited by
statute, rule or regulation and/or the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Tenant's employees.
Nothing in this Agreement shall be deemed to constitute approval for Tenant or any of
Tenant's employees or agents, to be the agents or employees of City. City
acknowledges that is has no interest in the business of Tenant.
6. TAXES, LICENSES AND OTHER OBLIGATIONS
6.1 Payment of Taxes. Tenant shall pay directly to the appropriate taxing
authorities all taxes applicable to this Agreement, fixtures and Tenant's personal
property on the Property, that are levied or assessed against Tenant during the Term.
Taxes shall be paid before delinquency and before any fine, interest, or penalty is due
or imposed by operation of law. Tenant shall, upon request, promptly furnish to the City
reasonably satisfactory evidence of payment. City hereby gives notice to Tenant,
pursuant to Revenue and Tax Code Section 107.6, that this Agreement may create a
possessory interest that is the subject of property taxes levied on such interest, the
payment of which taxes shall be the sole obligation of Tenant. Tenant shall pay, before
delinquency all taxes, assessments, license fees and other charges ("Taxes") that are
levied or assessed against Tenant's interest in the Property or any personal property
installed on the Property.
6.2 Payment of Obligations. Tenant shall promptly pay, when due, any and all
bills, debts, liabilities and obligations incurred by Tenant in connection with Tenant's
occupation and/or use of the Property.
6.3 Challenge to Taxes. Tenant shall have the right in good faith, at its sole
cost and expense, to contest the amount or legality of any Taxes on or attributable to
this Agreement, the Property, Tenant's personal property, or Tenant's occupation and/or
use of the Property, including the right to apply for reduction. If Tenant seeks a
reduction or contests such Taxes, Tenant's failure to pay the Taxes shall not constitute
Pacifica Christian High School - Orange County Page 9
a default under this Agreement as long as Tenant complies with the provisions of this
Section. City shall not be required to join in any proceeding or contest brought by
Tenant unless the provisions of any Law require that the proceeding or contest be
brought by or in the name of City. In that case, City shall join in the proceeding or
contest or permit it to be brought in City's name as long as City is not required to bear
any cost. If requested by Tenant, City shall execute any instrument or document
necessary or advisable in connection with the proceeding or contest. Tenant, on final
determination of the proceeding or contest, shall immediately pay or discharge any
decision or judgment rendered, together with all related costs, charges, interest and
penalties. Tenant shall indemnify, defend and hold harmless the City, its council
members, boards, commissions, committees, officers, employees, Authorized City
agents and volunteers ("Indemnified Parties," as defined in Section 10.1) from and
against any liability, claim, demand, penalty, cost or expense arising out of or in
connection with any contest by Tenant pursuant to this Section.
6.4 No Rent Offset. Any payments under this Section 6 shall not reduce or
offset Rent payments. City has no liability for such payments.
7. UTILITIES.
Tenant shall be responsible for all utility connection fees and ongoing monthly
costs. Consideration for the City's pro rata share of utility costs is included in the rent
reductions discussed in Section 4.3 above.
8. ALTERATIONS TO THE PROPERTY.
8.1 Tenant Improvements. On the Commencement Date City shall deliver
possession of the Property to Tenant free and clear of any prior tenants or occupants
(including, without limitation, their equipment and personal property), generally free of
any rubbish and debris, free of any construction materials and equipment, and
otherwise in its "as -is" condition, subject to any representations, warranties and
covenants of the City specifically set forth in this Agreement. Subject to compliance
with all Laws, Tenant may construct improvements consistent with those shown on
Exhibit "C," as attached hereto and incorporated herein, as may be revised or modified
in order to obtain entitlements and/or building permits from the applicable local and
state agencies. Tenant shall obtain all necessary entitlements and permits in order to
construct. Tenant shall pay for all costs associated with construction to reconfigure the
site to use as a high school including but not limited to addition/removal of demising
walls in classrooms, addition/removal of wall coverings, flooring, lighting, and any
addition/removal of restrooms, locker rooms, HVAC/mechanical equipment, electrical,
plumbing, etc. Subject to compliance with all applicable Laws, all improvements by the
Tenant must be submitted for review of improvement plans and permitting, and
construction shall be subject to the prior written approval of the City Manager or his/her
designee, which approval shall not be unreasonably withheld, conditioned or delayed so
long as the improvements are consistent with those shown on Exhibit "C" as may be
revised or modified as set forth above. Improvements shall be performed between 7:00
a.m. and 6:00 p.m. on non -holiday weekdays. Any contractors hired by Tenant shall be
Pacifica Christian High School - Orange County Page 10
fully licensed and bonded. Tenant's contractors and any subcontractors shall obtain
insurance in an amount and form to be approved by City's Risk Manager, including
workers compensation insurance as required by law, general liability, automobile liability
and builder's risk insurance covering improvements to be constructed accordance with
the applicable requirements set forth in Exhibit "D," all pursuant to standard industry
custom and practice. City shall be named as an additional insured on the contractor's
and any subcontractor's policies.
8.1.1 Early Occupancy: Tenant may enter and occupy the Property as
early as thirty (30) calendar days prior to the Commencement Date provided that
Tenant does not interfere with City's relocation efforts at the Property and allows City
and it's agents and employees to enter the Property to continue its relocation efforts up
to thirty (30) calendar days past the Commencement Date. All entries on to the Property
by Tenant prior to the Commencement Date shall be subject to all of the terms,
covenants and conditions of this Agreement, including, but not limited to, Tenant's
insurance obligations and Tenant's indemnity obligations contained in Section 10, but
excluding the obligation to pay Rent.
8.1.2 Playground Equipment: The Equipment that currently exists on the
Property shall only be removed at the time in which City purchases new Equipment and
the new Equipment is installed by Tenant at a location on the Property that is mutually
agreeable to the Parties. Tenant shall be responsible for the removal and disposal of
the currently existing Equipment and installation of the new replacement Equipment
purchased by the City.
8.2 Tenant's Architects and Contractors. All improvements and landscaping
on the Property and any subsequent repairs, alterations, additions or improvements to
any of the foregoing shall be designed, selected or constructed, as applicable, by
qualified and licensed (where required) architectural, design, engineering and
construction firms selected by Tenant.
8.3 Costs of Construction. Tenant shall bear all costs and expenses
associated with the design, use, construction, and maintenance of the Property and
Tenant Improvements (except for any costs and expenses incurred as a result of any
negligence or willful misconduct by City or any of its officers, agents, contractors, or
employees), which costs and expenses include without limitation: (i) relocation of
existing City facilities (e.g., driveways, points of access, etc.), utility relocation, hook-up,
and connection fees and all distribution facilities, conduits, pipelines and cables legally
required in connection with the Property and Tenant Improvements, (ii) all design,
engineering, financing and construction costs; and (iii) all necessary studies and
appraisals, use permits or variances, and all grading, building and like permits required
to construct and operate the Property and Tenant Improvements, including any fees
assessed on the Property by any governmental, or quasi -governmental agency or
authority in connection with any regional transportation or other public improvements
Pacifica Christian High School - Orange County Page 11
and school district taxes, development fees and assessments.
Notwithstanding the above payment obligations of Tenant, City and Tenant shall
equally share the cost of waterproofing the basement in the existing building on the
Property. The City's share of the costs for waterproofing the basement shall be capped
at Fifteen Thousand Dollars and No Cents ($15,000).
8.4 Permits. Unless restricted by law, Tenant shall obtain, and be responsible
for the costs for all building permits and other required permits necessary for the
Property. If applicable, Tenant shall be responsible, at its sole cost and expense, for
compliance with the California Environmental Quality Act ("CEQA") in connection with
Tenant's operation and use of the Property.
8.5 Quality of Work Performed. All construction, maintenance and other work
shall be performed in a good and workmanlike manner, shall comply with the plans and
specifications submitted to City, and shall comply with all applicable governmental
permit requirements and Laws in force at the time permits are issued.
8.6 Payment of Costs. Tenant shall pay all costs related to the construction of
the Tenant Improvments and any alterations and/or improvements by Tenant or its
agents, except for any costs incurred as a result of any negligence or willful misconduct
by City or any of its officers, agents, contractors, or employees.
8.7 Liens Prohibited: Tenant shall not permit to be imposed, recorded or
enforced against the Property, any portion thereof or any structure or improvement
thereon, any mechanics, materialmen's, contractors or other liens arising from, or any
claims for damages growing out of, any work or repair, construction or alteration of
improvements on the Property.
8.7.1 Release/Removal of Liens: In the event any lien or stop notice is
imposed or recorded on the Property, or an improvement permanently affixed to the
Property, during the Term, Tenant shall pay or cause to be paid all such liens, claims or
demands before any action is brought to enforce the same against the Property or the
improvement. Notwithstanding the foregoing, if Tenant legitimately contests the validity
of such lien, claim or demand, then Tenant shall, at its expense, defend against such
lien, claim or demand provided that it provide City the indemnity in this Agreement and
provided Tenant shall pay and satisfy any adverse judgment that may be rendered
before any enforcement against City or the Property.
8.8 Disposition of Alterations at Expiration or Agreement Termination. Any
alterations made to the Property shall remain on, and be surrendered with, the Property
on expiration or termination of this Agreement (excluding Tenant's moveable personal
property). Prior to expiration or within thirty (30) calendar days after termination of this
Agreement, Tenant may remove any moveable machinery, equipment, and other
personal property installed by Tenant, provided that Tenant repairs any damage to the
Property caused by removal and restore the Property to good condition.
Pacifica Christian High School - Orange County Page 12
Fa�ure�nrr�ere��ry�•»r:I�sz•»:�uu
9.1 Maintenance and Repair by Tenant and City. Tenant shall be responsible
for maintenance of the Property, including routine janitorial and housekeeping costs.
Tenant agrees that it will keep the Property in good condition, free of trash and debris,
with reasonable wear and tear and damage by casualty and condemnation excepted.
Tenant may enter upon areas of the Property still used by the City, as defined in Section
5.3, in order to conduct routine maintenance and repair upon portions of the facility
which may be shared between City and Tenant, including all utilities, roof, etc. City may
perform maintenance or repairs in the event Tenant fails to commence any
maintenance or repairs required to keep the Property in the condition described in this
Agreement within the time provided by City in the written notice requesting such
maintenance or repair (which shall not be less than thirty (30) calendar days after the
date of such notice). The cost of any maintenance or repairs performed by the City
pursuant to this Section shall be payable as additional rent. City may perform required
cleaning and charge the costs to Tenant if the Tenant fails to perform said cleaning
within the time provided by City in the written notice requesting the cleaning (which shall
not be less than ten (10) calendar days after the date of such notice) and if City
performs such cleaning on Tenant's behalf more than two (2) times during the Term,
City may take over such obligation by providing written notice thereof to Tenant and
thereafter City shall continue to maintain the Property as required by this Agreement.
Notwithstanding the foregoing, City shall be responsible, and shall promptly reimburse
Tenant, for any costs incurred by Tenant to comply with this Section 9.1, which costs
would not have been incurred but for City's shared use of the Property pursuant to
Section 5.3.
9.2 Entry by City. City and its authorized City representative(s) may, upon
one (1) business day prior notice to Tenant (except no prior notice shall be required in
the event of an emergency, emergency maintenance, or emergency repair to facilities),
enter upon and inspect the Property during normal business hours for any lawful
purpose, provided that City shall use commercially reasonable efforts to not interfere
with Tenant's operation and/or use of the Property in performing any such entry and/or
inspection. In case of emergency, City or its authorized City representative(s) may
enter the Property by whatever force reasonably necessary if Tenant is not present to
open and permit an entry. Any entry to the Property by City under this Agreement shall
not be construed as a forcible or unlawful entry into, or a detainer of, the Property, or an
eviction of Tenant from the Property or any portion thereof. Any damage caused to the
Property pursuant to this Section by the City shall be repaired or replaced by the City at
the City's sole expense.
10. INDEMNITY AND EXCULPATION; INSURANCE
10.1 Hold -Harmless Clause. Tenant agrees to indemnify, defend and hold
harmless the City, its City Council, Boards, Commissions, Committees, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
Pacifica Christian High School - Orange County Page 13
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a "Claim;" collectively, "Claims"), which may arise from or in any manner
relate (directly or indirectly) to Tenant's, Tenant's employees, contractor, subcontractor,
agents, guests, invitees, occupation or use of the Property, specifically including,
without limitation, any claim, liability, loss or damage arising by reason of:
(a) The death or injury of any Person or damage to personal property
caused or allegedly caused by the condition of the Property or an act or omission of
Tenant or an agent, contractor, subcontractor, supplier, employee, or servant Tenant;
(b) Any work performed on the Property or materials furnished to the
Property at the request of Tenant or any agent or employee of Tenant, with the
exception of maintenance performed by City; and/or
(c) Tenant's failure to perform any provision of this Agreement or to
comply with any requirement of Law or any requirement imposed on the Property by
any duly authorized governmental agency or political subdivision.
Tenant's obligations pursuant to this Subsection shall not extend to any Claim
proximately caused by the negligence, willful misconduct, or unlawful or fraudulent
conduct on the part of the Indemnified Parties. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable.
10.2 Exculpation of City. Except as otherwise expressly provided in this
Agreement, City shall not be liable to Tenant for any damage to Tenant or Tenant's
property from any cause other than the negligence, intentional or willful acts of the
Indemnified Parties. Except as otherwise expressly provided in this Agreement, Tenant
waives all claims against the Indemnified Parties arising for any reason other than the
negligence, intentional or willful acts of the Indemnified Parties. City shall not be liable
to Tenant for any damage to the Property, Tenant's property, Tenant's goodwill, or
Tenant's business income, caused in whole or in part by acts of nature.
10.3 Insurance. Tenant shall maintain insurance in the types and amounts
specified in Exhibit "D," attached hereto and incorporated herein by this reference.
11. DAMAGE OR DESTRUCTION OF PROPERTY; CONDEMNATION
11.1 Destruction of the Property. If the Property is totally or partially destroyed,
rendering the Property or any portion thereof totally or partially inaccessible or
unusable, Tenant shall restore the Property to substantially the same condition as
immediately prior to such destruction (including all trade fixtures, personal property,
improvements and alterations as are installed by Tenant, which shall be replaced by
Tenant at its expense), provided that, if such destruction occurs prior to the Shared Use
Termination Date, City shall be responsible for its pro rata share of any restoration costs
tp materials, equipment, etc., required exclusively for City's use of the Property, based
on the extent of its then -current shared use rights pursuant to Section 5.3 above.
Pacifica Christian High School - Orange County Page 14
Alternatively, Tenant may elect to terminate this Agreement by giving notice of such
election to City within sixty (60) calendar days after the date of the occurrence of any
casualty if the cost of the restoration exceeds the amount of any available insurance
proceeds, if the damage has been caused by an uninsured casualty or event, or if
Tenant reasonably estimates that repairs of the Property will take more than six (6)
months. Upon such termination, any insurance proceeds applicable to reconstruction of
the Property (excluding Tenant's personal property therein) then received by Tenant
shall be paid to City and Tenant shall have no further liability or obligations under this
Agreement.
11.2 Destruction of Property. In the event that all or a portion of the Property is
damaged, and the Property or a material portion becomes inaccessible or commercially
unusable, and the damage or destruction cannot reasonably be repaired within twelve
(12) months after the date of the casualty, City shall have the right to either:
(a) Terminate this Agreement by giving to Tenant written notice (which
notice shall be given, if at all, within thirty (30) calendar days following the date of the
casualty), in which case this Agreement shall be terminated thirty (30) calendar days
following the date of the casualty; or
(b) Give Tenant written notice of City's intention to repair such damage
as soon as reasonably possible at City's expense, in which event this Agreement shall
continue in full force and effect; however, Rent shall be abated in accordance with the
procedures set forth in Section 12. Tenant may terminate this Agreement by giving City
written notice at any time prior to the commencement of repairs if City agrees to repair
the Property pursuant to this Section and fails to commence repairs within one hundred
twenty (120) calendar days after giving Tenant written notice of its intention to repair. In
such event, this Agreement shall terminate as of the date of notice from Tenant to City,
and City shall have no liability under this Agreement.
11.3 Condemnation. If the use or possession of the entire Property or any
material portion thereof shall be taken in condemnation proceedings, then Tenant may
elect to terminate this Agreement by giving written notice of such election to City within
sixty (60) calendar days after the date of such taking. If only a non -material portion of
the Property shall be taken in condemnation proceedings, then this Agreement shall
continue in full force and effect; however, Rent shall be proportionally abated in
accordance with the procedures set forth in Section 12.
12. ABATEMENT OF RENT
General Rule. In the event of damage or destruction of the Property (or any
portion thereof), or condemnation of the Property (or any portion thereof), and this
Agreement is not terminated, Tenant may continue to utilize the Property for the
operation of the high school to the extent it may be practicable and commercially
reasonable, as determined in Tenant's reasonable judgment. Rent shall abate only in
proportion to the area of the Property that is rendered unusable (as determined in
Tenant's reasonable judgment). The abatement of Rent shall commence on the date
Pacifica Christian High School - Orange County Page 15
that use of the Property is impacted and continue until the completion of those repairs
necessary to restore full use of the Property, if any, and Tenant's re -opening of the
Property. Tenant's obligation to pay Taxes pursuant to this Agreement shall not be
abated or reduced. Rent shall not abate if the damage or destruction to the Property is
the result of the negligence or willful conduct of Tenant or its employees, officers or
agents.
13. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING, AND
ENCUMBERING
Prohibition of Assignment. City and Tenant acknowledge that City is entering
into this Agreement in reliance upon the experience and abilities of Tenant and
Consequently, Tenant shall not sublease or encumber its interest in this Agreement or
in the Property, or assign substantially all or any part of the Property, or allow any other
person or entity to occupy or use all or any part of the Property other than for the uses
permitted under this Agreement and with the City's prior written consent.
Notwithstanding the foregoing or anything else to the contrary in this Agreement, but in
all events subject to City's shared use rights as provided herein prior to the Shared Use
Termination Date, Tenant may, without City's consent, permit third parties to use the
Property on a periodic and/or temporary basis for uses that are reasonably compatibale
with and/or incidental to the operation of a high school (such as, by way of example but
not limitation, use of the gymnasium by other schools and/or recreational leagues and
use of portions of the Property by community and/or religious organizations for meetings
and gatherings). Except as expressly provided in the immediately preceding sentence,
any assignment, sublease or transfer made without the City's written consent is null and
void, which consent shall not be unreasonably withheld.
14. DEFAULT; REMEDIES
14.1 Default by Tenant. The occurrence of any one (1) or more of the following
events shall constitute a default and material breach of this Agreement by Tenant:
(a) The vacating or abandonment of the Property by Tenant for a
period of more than one hundred eighty (180) successive calendar days during which
time Tenant shall be required to pay Rent and fulfill all other obligations under this
Agreement, without the prior permission of the City Manager or his/her designee,
excluding closures during periods of casualty, condemnation or permitted closures set
forth in this Agreement or during periods when the Property is temporarily closed for
routine breaks (e.g., Christmas break, spring break, summer break, etc.);
(b) The failure by Tenant to make any payment of Rent or any other
payment required by this Agreement, as and when due, when such failure shall
continue for a period of ten (10) calendar days after written notice of default from City to
Tenant;
(c) Except as specified in Subsection 14.1(b), the failure of Tenant to
observe or perform any of the material covenants, conditions or provisions of this
Pacifica Christian High School - Orange County Page 16
Agreement to be observed or performed by Tenant where such failure shall continue for
a period of thirty (30) calendar days after written notice thereof from City to Tenant;
provided, however, that if the nature of Tenant's default is such that more than thirty
(30) calendar days are reasonably required for its cure, then Tenant shall not be
deemed to be in default if Tenant commences such cure within said thirty (30) calendar
day period and thereafter diligently prosecutes such cure to completion;
(d) The making by Tenant of any general arrangement or assignment
for the benefit of creditors;
(e) Tenant becomes a "debtor" as defined in 11 U.S.C. Section 101 or
any successor statute thereto (unless, in the case of a petition filed against Tenant, the
same is dismissed within sixty (60) calendar days);
(f) The appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Property or of Tenant's interest in this
Agreement, where such appointment is not discharged within sixty (60) calendar days;
and
(g) The attachment, execution or the judicial seizure of substantially all
of Tenant's assets located at the Property or of Tenant's interest in this Agreement,
where such seizure is not discharged within sixty (60) calendar days.
14.2 Remedies for Default by Tenant.
(a) Cumulative Nature of Remedies. If any default by Tenant shall
continue without cure beyond the time permitted under this Agreement, City shall have
the remedies described in this Section in addition to all other rights and remedies
provided by law or equity, to which City may resort cumulatively or in the alternative.
(1) Re-entry without Termination. City may re-enter the Property, and,
without terminating this Agreement, re -let all or a portion of the Property. City may
execute any agreements made under this provision in City's name and shall be entitled
to all rents from the use, operation, or occupancy of the Property. Tenant shall
nevertheless pay to City on the dates specified in this Agreement the equivalent of all
sums required of Tenant under this Agreement, plus City's reasonable expenses in
conjunction with re -letting, less the proceeds of any re -letting or atonement. No act by
or on behalf of City under this provision shall constitute a termination of this Agreement
unless City gives Tenant specific written notice of termination.
(2) City may terminate this Agreement by giving Tenant written notice
of termination with a specified termination date. In the event City terminates this
Agreement, City may recover possession of the Property (which Tenant shall surrender
and vacate upon demand in the condition required under this Agreement) and remove
all persons and property. City shall be entitled to recover the following as damages:
(A) The value of any unpaid rent or other charges that are unpaid at the
time of termination (which value shall be computed by allowing interest at the rate of ten
Pacifica Christian High School - Orange County Page 17
percent (10%) per annum). All Rent and other charges shall begin to accrue late
charges from the date due or the date they would have accrued;
(B) The value of the Rent and other charges that would have accrued
after termination less the amount of Rent and charges the City received or could have
received through the exercise of reasonable diligence as of the date of the termination
(which value shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of termination plus one percent
(1 M;
(C) Any other amount necessary to reasonably compensate City for the
detriment proximately caused by Tenant's failure to perform its obligations under this
Agreement; and
(D) At City's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time -to -time by applicable California law. City shall
be entitled to an award of the reasonable costs and expenses incurred by City in
maintaining or preserving the Property after default (after the expiration of all notice and
cure periods), preparing the Property for re -letting, or repairing any damage caused by
an act or omission of Tenant.
(b) City's Right to Cure Tenant's Default. Upon continuance of any
material default beyond applicable notice and cure periods, City may, but is not
obligated to, cure the default at Tenant's cost. If City pays any money or performs any
act required of, but not paid or performed by, Tenant after such applicable notice and
cure periods, the payment and/or the reasonable cost of performance shall be due as
additional Rent not later than ten (10) calendar days after service of a written demand
accompanied by supporting documentation upon Tenant. No such payment or act shall
constitute a waiver of default or of any remedy for default or render City liable for any
loss or damage resulting from performance, provided that Tenant shall no longer be in
default to the extent the default is actually cured by City, once reimbursement is made
to City.
15. WASTE OR NUISANCE
Tenant shall not commit or permit the commission of any waste on the Property.
Tenant shall not maintain, commit, or permit any nuisance as defined in Section 3479 of
the California Civil Code on the Property. Tenant shall not use or permit the use of the
Property for any unlawful purpose.
16. NO CONFLICTS OF USE, HAZARDOUS MATERIALS.
From the Effective Date and throughout the Term, Tenant shall not use, occupy
or permit any portion of the Property to be used or occupied in violation of any Law.
City represents and warrants that, to the best of City's knowledge: (i) Tenant's use of
the Property does not conflict with applicable Laws, and City knows of no reason why
Tenant would be unable to obtain all required permits, licenses and approvals from the
appropriate governmental authorities; and (ii) the Property is not in violation of any
Pacifica Christian High School - Orange County Page 18
applicable Law, rules or regulations and Tenant's contemplated uses will not cause any
such violation. Provided Tenant did not bring, cause or allow such Hazardous Materials
on the Property, Tenant shall have the right (but not the obligation) to terminate this
Agreement, upon thirty (30) calendar days advance written notice to City in the event
that Hazardous Materials are detected at the Property and the presence or the
remediation (without any obligation of Tenant to perform remediation) materially affects
Tenant's ability to operate the high school at the Property. "Hazardous Materials" shall
mean any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials
or waste, or other hazardous, toxic, contaminated or polluting materials, substances or
wastes, including, without limitation, any "hazardous substances," "hazardous wastes,"
"hazardous materials" or "toxic substances" under applicable federal, state and local
laws, ordinances and regulations.
17. CITY'S DEFAULTS/TENANT'S REMEDIES.
City shall be in default if it fails to perform, or commence performance if the
obligation requires more than ten (10) calendar days to complete, any material
obligation within ten (10) calendar days after receipt of written notice by Tenant to City
specifying the nature of such default. City shall also be in default if it commences
performance within ten (10) calendar days but fails to diligently complete performance.
In the event of City's default, Tenant may:
(a) Upon thirty (30) calendar days written notice to City, cure any such
default, and City shall reimburse Tenant the amount of all reasonable costs and
expenses incurred by Tenant in curing the default; or
(b) Terminate this Agreement if City's default materially interferes with
Tenant's use of the Property for its intended purpose and City fails to cure such default
within thirty (30) calendar days after a second written demand by Tenant.
18. EVENT OF BANKRUPTCY
18.1 If this Agreement is assigned to any Person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq., or any similar or
successor statute ("Bankruptcy Code"), to the extent permitted by the Bankruptcy Code
and applicable Laws, any and all monies or other consideration payable or otherwise to
be delivered in connection with such assignment shall be paid or delivered to City, shall
be and remain the exclusive property of City and shall not constitute property of Tenant
or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other consideration constituting City's property under this Section not paid or
delivered to City shall be held in trust for the benefit of City and be promptly paid or
delivered to City.
18.2 To the extent permitted by the Bankruptcy Code and applicable Laws, any
Person or entity to which this Agreement is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed without further act or deed to have assumed all of
the obligations arising under this Agreement on and after the date of such assignment,
Pacifica Christian High School - Orange County Page 19
including the obligation to operate the Property, pursuant to Section 5.1.
19. NOTICES
Any notice, demand, request, consent, approval or communication that either
Party desires or is required to give shall be in writing and shall be deemed given three
(3) calendar days after deposit into the United States registered mail, postage prepaid,
by registered or certified mail, return receipt requested, or one (1) business day after
deposit with a reputable overnight courier for overnight delivery. Unless notice of a
different address has been given in accordance with this Section, all notices shall be
addressed as follows:
If to City, to: City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
If to Tenant, to: Pacifica Christian High School -Orange County
Attn: David O'Neil
883 West 15th Street
Newport Beach, CA 92663
With a copy to: Pacifica Christian High School -Orange County
Attn: Keith Carlson
2424 SE Bristol Street, Suite 300
Newport Beach, CA 92660
And with a copy to: Garrett DeFrenza Stiepel Ryder LLP
Attn: Michael Hill
3200 Bristol Street, Suite 850
Costa Mesa, CA 92626
20. SURRENDER OF PROPERTY
At the expiration or earlier termination of this Agreement, Tenant shall surrender
to City the possession of the Property. Tenant shall leave the Property in good and
broom -clean condition, reasonable wear and tear and damage by casualty and
condemnation excepted. All property that Tenant is not required to surrender, but that
Tenant does abandon for more than thirty (30) calendar days after the expiration or
termination of this Agreement, shall, at City's election, become City's property at
expiration or termination. City shall owe no compensation to Tenant for any personal
property, equipment or fixtures left at the Property by Tenant more than thirty (30)
calendar days after the expiration or termination of this Agreement.
Pacifica Christian High School - Orange County Page 20
21. COMPLIANCE WITH ALL LAWS
Tenant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted. In addition, all work
prepared by Tenant shall conform to applicable City, county, state and federal laws,
rules, regulations and permit requirements and be subject to approval of the City
Manager or his/her designee.
22. WAIVERS
The waiver by either Party of any breach or violation of any term, covenant or
condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed
to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of
any subsequent breach or violation of the same or other term, covenant, condition,
ordinance, law or regulation. The subsequent acceptance by either Party of any fee,
performance, or other consideration which may become due or owing under this
Agreement, shall not be deemed to be a waiver of any preceding breach or violation by
the other Party of any term, condition, covenant of this Agreement or any applicable
law, ordinance or regulation.
23. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
24. CONFLICT
In case of conflict, the more specific provision of this Agreement shall control.
25. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California. Any action brought relating to this Agreement shall be adjudicated in a court
of competent jurisdiction in the County of Orange.
26. ENTIRE AGREEMENT; AMENDMENTS
26.1 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.
26.2 This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Tenant and City.
26.3 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
Pacifica Christian High School - Orange County Page 21
amendment to this Agreement.
26.4 The terms and conditions of this Agreement shall not be altered or modified
except by a written amendment to this Agreement signed by Tenant and the City
Manager or his/her designee, and approved as to form by the City Attorney.
26.5 If any conflicts arise between the terms and conditions of this Agreement,
and the terms and conditions of the attached exhibits or thedocuments expressly
incorporated by reference, the terms and conditions of this Agreement shall control.
26.6 Any obligation of the Parties relating to monies owed, as well as those
provisions relating to limitations on liability and actions, shall survive termination or
expiration of this Agreement.
26.7 The Recitals provided in this Agreement are true and correct and are
incorporated into the substantive part of this Agreement.
26.8 Each party has relied on its own inspection of the Property and examination
of this Agreement, the counsel of its own advisors, and the warranties, representations,
and covenants in this Agreement. The failure or refusal of either Party to inspect the
Property, to read this Agreement or other documents, or to obtain legal or other advice
relevant to this transaction constitutes a waiver of any objection, contention, or claim
that might have been based on such reading, inspection, or advice.
26.9 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of such counterparts shall constitute
one Agreement.
27. TIME IS OF THE ESSENCE
Time is of the essence for this Agreement.
28. SUCCESSORS; BINDING EFFECT
Subject to the provisions of this Agreement on assignment and subletting, each
and all of the covenants and conditions of this Agreement shall be binding on and shall
inure to the benefit of the heirs, successors, executors, administrators, assigns, and
personal representatives of the respective Parties.
29. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either Party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise
apply.
Pacifica Christian High School - Orange County Page 22
30. TABLE OF CONTENTS; HEADINGS
The table of contents of this Agreement and the captions of the various sections
of this Agreement are for convenience and ease of reference only and do not define,
limit, augment, or describe the scope, content, or intent of this Agreement.
31. GENDER; NUMBER
The neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the neuter, and each includes
corporation, partnership, or other legal entity whenever the context requires. The
singular number includes the plural whenever the context so requires.
32. EXHIBITS
All exhibits to which reference is made in this Agreement are incorporated by
reference. Any reference to "this Agreement" includes matters incorporated by
reference.
33. CITY BUSINESS LICENSE
Tenant shall obtain and maintain during the duration of this Agreement, a City
business license as required by the Newport Beach Municipal Code.
34. ATTORNEYS' 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, shall not be
entitled to recover its attorneys' fees.
35. NONDISCRIMINATION
Tenant, for itself and its successors, agrees that in the performance under this
Agreement, Tenant shall not discriminate against any person because of the marital
status or ancestry of that person or any characteristic listed or defined in Section 11135
of the Government Code.
36. MEMORANDUM OF LEASE AGREEMENT
A Memorandum of Lease Agreement, in a form and content similar to that
contained in Exhibit "E," attached hereto and incorporated by this reference, shall be
recorded by the Parties promptly upon execution of this Agreement. Upon execution by
both Parties, the Memorandum of Lease Agreement shall be recorded against the
Property in the office of the Orange County Clerk -Recorder, as required by Government
Code Section 37393.
Pacifica Christian High School - Orange County Page 23
37. NO THIRD PARTY BENEFICIARIES
City (both as a lessor and as the City of Newport Beach) and Tenant do not
intend, by any provision of this Agreement, to create in any third party, any benefit or
right owed by one Party, under the terms and conditions of this Agreement, to the other
Party.
38. CALIFORNIA LABOR LAWS
It shall be the obligation of Tenant to comply with all Laws, including, but not
limited to, State of California labor laws, rules and regulations and the Parties agree that
the City shall not be liable for any violation by Tenant (or Tenant's agent, sublesse or
any party affiliated with Tenant) thereof.
39. NO DAMAGES
Tenant acknowledges that City would not enter into this Agreement if it were to
be liable for damages (including, but not limited to, actual damages, economic
damages, consequential damages, lost profits, loss of rents or other revenues, loss of
business opportunity, loss of goodwill or loss of use) under, or relating to, this
Agreement or any of the matters referred to in this Agreement, including, without
limitation, any and all plans, permits, licenses or regulatory approvals, and CEQA
documents related to the Property. Accordingly, Tenant covenants and agrees on
behalf of itself and its successors and assigns, not to sue City (either in its capacity as
lessor in this Agreement or in its capacity as the City of Newport Beach) for damages
(including, but not limited to, actual damages, economic damages, consequential
damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss
of goodwill or loss of use) or monetary relief for any breach of this Agreement by City or
for any dispute, controversy, or issue between City and Tenant arising out of or
connected with this Agreement or any of the matters referred to in this Agreement,
including, without limitation, any and all plans, permits, licenses or regulatory approvals,
CEQA documents, or any future amendments or enactments thereto, the Parties
agreeing that declaratory relief, injunctive relief, mandate and specific performance shall
be Tenant's sole and exclusive judicial remedies. Notwithstanding the foregoing,
nothing in this Section 39 shall limit Tenant's remedies as expressly set forth in this
Agreement.
40. QUIET ENJOYMENT
So long as Tenant pays Rent and complies with its obligations under this
Agreement, Tenant shall peaceably and quietly enjoy the Property throughout the Term
without hindrance by Landlord or any person lawfully claiming through or under
Landlord, subject to the provisions of this Agreement.
Pacifica Christian High School - Orange County Page 24
41. GOVERNMENT CLAIMS ACT
Tenant and City agree that in addition to any claims filing or notice requirements
in this Agreement, Tenant shall file any claim that Tenant may have against City in strict
conformance with the Government Claims Act (Government Code sections 900 et seq.),
or any successor statute.
[Signature page follows]
Pacifica Christian High School - Orange County Page 25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates written below.
APPROVED AS TO FORM: CITY
The City of Newport Beach,
THE CITY ATTOR EY'S OFFICE a Californi municipal corporation
Date: 3 I Dat I
By: ( 1 By:
Aaron cAm'glajIH Rush N. Hill, II
City Attorney Mayor
ATTEST:
Date: 7
By: Q'�����
��V^".
Leilani I. Brown
City Clerk
TENANT
Pacifica Christian High School -Orange
County,
a California non-profit corporation
Date:
By: 1434 w U,
Keith Carlson
President
Date: 'T,Ajo""" /Z�
David Bahnsen
Vice President/Treasurer
[End of Signatures]
Attachments: Exhibit A: Property Depiction & Equipment
Exhibit B: City Schedule
Exhibit C: [Tenant Improvements]
Exhibit D: Insurance Requirements
Exhibit E: Memorandum of Lease Agreement
Pacifica Christian High School - Orange County Page 26
EXHIBIT "A"
Property Depiction
Pacifica Christian High School - Orange County Page A-1
EXHIBIT "A"
Property Depiction
9w1 3 al 3
PARCEL MAP N4 88-285
CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA
NG
RODIN G. NRMCM r'`
ar ]Ilio
unvrurw: mw e. .. Y.... •:
WA AE,
c naw<sK,
Ifig' a
k CE{
5 uurY",6` RR y N s' `aw5..wvwe..¢
ii ` /Npm���ywr.YA�ie v a.RMR.tJ[uJ i ; :.. i)YF 3/
MONUMENT NOTES
BA41i Or SEARINO4
AdeL`n".':�.'a'K`w"'va"iuiYwr"�'r. u:.`:.."
W
1
03
fD
J
Pacifica Christian High School - Orange County Page A-2
EXHIBIT "A"
Property Depiction
Pacifica Christian High School - Orange County Page A-3
a �! =77. —
EXHIBIT "B"
City Use of Property Schedule
Pacifica Christian High School - Orange County Page B-1
4
City Use of Premises
School Year Programming:
Room
Gymnaslum
Day
Monday
3-5pm—Carden Hall
6-11pm—City
Tuesday
6-11pm—City
Wednesday
3-Spm—Carden Hall
6-11pm—City
i
Thursday
3-5pm—Carden Hall
6-11pXn — City
Friday
i
7-11pm—City
I
Saturday
I Sam-6pm—Newport
J unlor Basketball
6pm-11pm —City
Sunday.._
i Sam-6pm—Newport
Junior Basketball
k• ,.
6pm-11pm—City
Total Hours
f
{ 55/week
Spring Break Programming:
Room
Gymnasium
Day
Daily, April
N/A
7 -April 11
Total Hours
0
N/A
N/A
Room 2 Room 4 _
9-10:30am — City
9:30-11:30am — City
N/A
3-6pm — City
N/A
N/A
9-10:30am - City
3:30-4:30pm — City
6:30-7:30pm — City
9-10:30am — City
10:30a m-12pm — City
6-7:30pm— City
9-11am — City
Ilam-12pm —City
6-8pm — City
N/A
N/A
N/A
5/week 14.5/week
Room 2 Room 4
9:30am-12:30pm — City N/A
15
Summer
Day
Daily, June
23 -June 27
Daily, July 7 -
July 11
Daily, July 14 -
July 18
Daily, July 21 -
July 25
Daily, August
4 -August 8
Daily, August
11 -August 15
Daily, August
18-August22
Tota! Hours
Break Programming:
Room Gymnasium
Room 2
Room 4
Room TBD*
i y"
N/A
N/A
1:30pm-4:30pm—
9am-12pm—City
Ci ty
9am-12pm — City
N/A
N/A
9am-12pm — City
N/A
N/A
N/A
9am-12pm — City
N/A
i
N/A
N/A
9am-12pm — City
fpm-4pm — City
9am-12pm — City
10am-12pm — City
N/A
N/A
9am-12pm—City
N/A
N/A
N/A
N/A
N/A
10am-12pm — City
9am-12pm — City
fpm-4pm — City
45
10
25
105
*Room TBD - room to be designated at Tenant's discretion, but must have tables/chairs and
accommodate occupancy of 25 people.
Exhibit "C"
Tenant Improvements
Pacifica Christian High School - Orange County Page C-1
RESOLUTION NO. ZA2014-031
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT
NO. UP2014-008 FOR PACIFICA CHRISTIAN HIGH SCHOOL
LOCATED AT 883 WEST 15TH STREET (PA2014-045)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Pacifica Christian High School, with respect to property
located at 883 West 15th Street, and legally described as Parcel 2 of Parcel Map 88-285
requesting approval of a Minor Use Permit.
2. The applicant proposes to operate a private high school for grades 9 through 12 at the
West Newport Community Center.
3. The subject property is located within the Public Facilities (PF) Zoning District and the
General Plan Land Use Element category is Public Facilities (PF).
4. The subject property is not located within the coastal zone.
A public hearing was held on August 14, 2014, in the Corona del Mar Conference Room
(Bay E-1 st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and
purpose of the meeting was given in accordance with the Newport. Beach Municipal
Code. Evidence, both written and oral, was presented to, and considered by, the
Zoning Administrator at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITYACT DETERMINATION.
This project has been determined to be categorically exempt pursuant to Title 14 of the
California Code of Regulations (Section 15301, Article 19 of Chapter 3, Guidelines for
Implementation of the California Environmental Quality Act) under Class 1 (Existing
Facilities). Class 1 exempts the operation, repair, maintenance, permitting, leasing,
licensing, or minor alteration of existing public or private structures, facilities,
mechanical equipment, or topographical features, involving negligible or no expansion
of use beyond that existing at the time of the lead agency's determination. The use of
the high school will be similar to the existing instructional programs that are currently
being provided by the City at this facility. The operational characteristics of the
proposed school, including classroom occupancy, hours of operation, parking needs,
and traffic demand are similar to the existing City's classes. Parking will be provided
on-site and the implementation of a parking management plan and school busing
program will mitigate any traffic impact to the area.
2. The Zoning Administrator finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. In
Zoning Administrator Resolution No. ZA2014-031
Paqe 2 of 9
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages
which may be awarded to a successful challenger.
SECTION 3. REQUIRED FINDINGS.
Minor Use Permit
In accordance with Section 20.52.020.F of the Newport Beach Municipal Code, the following
findings and facts in support of such findings are set forth:
Finding:
A. The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding:
The property is designated PF by the General Plan. It allows for public schools,
cultural institutions, government facilities, community centers, public hospitals, and
public facilities. The use of the high school will be similar to the existing instructional
programs and classes that are currently being provided by the City at this facility and
thereby consistent with the General Plan Land Use designation.
Finding:
B. The use is allowed within the applicable zoning district and complies with all other applicable
provisions of this Zoning Code and the Municipal Code.
Facts in Support of Finding:
A private school is permitted in the Public Facility (PF) Zoning District with the
approval of a Minor Use Permit per Section 20.26.020 (Special Purpose Zoning
Districts Land Uses and Permit Requirements).
Finding:
C. The design, location, size, and operating characteristics of the use are compatible with the
allowed uses in the vicinity.
Facts in Support of Finding:
The high school use is similar to that of the existing community center, with
instructional classes, administrative offices and a gymnasium. Additionally, the
operating characteristics of the use are compatible with existing educational
institutions and residential uses in the immediate area.
05-20-2014
Zoning Administrator Resolution No. ZA2014-031
Pae of 9
2. The subject property has a total of forty (40) parking spaces. Pacifica will be obligated
to provide twenty-five (25) parking spaces to be used by the City for community
programs during the first two (2) years of school operation and the school will have
exclusive use of fifteen (15) parking spaces. Alternative options are placed in the event
that the City will continue the programs and activities beyond Year 2 to ensure there
would be adequate on-site parking provided.
3. A parking management plan has been prepared to ensure that adequate parking will
be provided for the City's programs and proposed school use. It contains the following
stipulations:
a. Designation of twenty-five (25) spaces for City programs during first two (2)
years of school operation and alternative options should City programs will
continue beyond Year 2
b. Implementation of transportation demand program to reduce number of vehicle
trips generated (i.e. carpooling, school busing, bicycling)
C. Implementation of drop-off, pick-up and queuing plan
d. Implementation of on-site parking policy for students
e. Implementation of on -street parking policy including enforcement and oversight
4. The proposed parking management plan has been reviewed and approved by the City
traffic engineer. A list of conditions has been included in the draft resolution to ensure
that Pacifica will be operated in a functional manner and compatible with the existing
uses in the vicinity.
Finding:
D. The site is physically suitable in terms
characteristics, and the provision of public
access and public services and utilities.
Facts in Support of Finding:
of design, location, shape, size, operating
and emergency vehicle (e.g., fire and medical)
With the implementation of a parking management plan, the high school will have
adequate parking for their staff members and students. All student pick-up and drop-
off will be done within the school's parking lot. Physical access for emergency vehicles
will be provided along the existing driveways within the subject property.
2. The City traffic engineer has reviewed the plan and is supportive of the proposed traffic
queuing arrangement of the school parking lot. With the proposed conditions of approval,
no conflicts in traffic circulation or queuing problems are anticipated and the current
locations and design of the driveways can accommodate the vehicle movements.
E. Operation of the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to
the public convenience, health, interest, safety, or general welfare of persons residing or
working in the neighborhood of the proposed use.
05-20-2014
Zoning Administrator Resolution No. ZA2014-031
Paoe 4 of 9
Facts in Support of Finding:
The proposed high school has been reviewed and this approval includes conditions to
ensure that potential conflicts with the surrounding land uses are minimized to the
greatest extent possible. The operator is required to take reasonable steps to ensure the
operation of the high school will not create a nuisance to the surrounding uses.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Zoning Administrator of the City of Newport Beach hereby approves Minor Use
Permit No. UP2014-008, subject to the conditions set forth in Exhibit A, which is attached
hereto and incorporated by reference.
2. This action shall become final and effective fourteen (14) days following the date this
Resolution was adopted unless within such time an appeal is filed with the community
development director in accordance with the provisions of Title 20 Planning and
Zoning, of the Newport Beach Municipal Code.
PASSED, APPROVED AND ADOPTED THIS 14th DAY OF AUGUST, 2014.
, Zoning Administrator
05-20-2014
Zoning Administrator Resolution No. ZA2014-031
Page 5 of 9
EXHIBIT "A"
CONDITIONS OF APPROVAL
(Project -specific conditions are in italics)
PLANNING
The development shall be in substantial conformance with the approved site plan and
floor plans stamped and dated with the date of this approval. (Except as modified by
applicable conditions of approval.)
Use Permit No. UP2014-008 shall expire unless exercised within twenty-four (24) months
from the date of approval as specified in Section 20.91.050 of the Newport Beach
Municipal Code, unless an extension is otherwise granted.
3. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
4. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Use
Permit.
This Use Permit may be modified or revoked by the City if: (i) the Conditions of
Approval are violated; (ii) it is determined that the proposed uses or conditions under
which the Use Permit is being operated or maintained is detrimental to the public
health, welfare or materially injurious to property or improvements in the vicinity; or (iii)
if the property is operated or maintained so as to constitute a public nuisance.
6. Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Use Permit or the processing
of a new use permit.
7. A copy of the Resolution, including conditions of approval (Exhibit "A") shall be
incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
8. Prior to the issuance of a building permit, the applicant shall pay any unpaid
administrative costs associated with the processing of this application to the Planning
Division.
9. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the director of
community development, and may require an amendment to this Use Permit.
10. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 and other applicable noise control requirements of the Newport Beach Municipal
05-20-2014
Zoning Administrator Resolution No. ZA2014-031
Pape 6 of 9
Code. The maximum noise shall be limited to no more than depicted below for the
specified time periods unless the ambient noise level is higher:
11. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three (3) walls and a self -latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes.
12. Storage outside of the building in the front of the property shall be prohibited, with the
exception of the required trash container enclosure.
13. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds (open house, back -to -school night, etc.), include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
14. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of the Pacifica Christian High School including, but not
limited to, Minor Use Permit No. UP2014-008. This indemnification shall include, but not
be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and
other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by applicant, City, and/or the parties initiating or bringing
such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys'
fees, and damages which City incurs in enforcing the indemnification provisions set forth
in this condition. The applicant shall pay to the City upon demand any amount owed to
the City pursuant to the indemnification requirements prescribed in this condition.
15. Prior to issuance of building permits the lease agreement between Pacifica and the
City for the improvement and use of the property shall be executed.
16. Student enrollment shall be restricted as follows:
05-20-2014
Between the hours of 7:00 a.m.
Between the hours of 10:00
and 10:00
M.
m. and 7:00 a.m.
Location
Interior
Exterior
Interior
Exterior
Residential Property
45dBA
55dBA
40dBA
50dBA
Residential Property located within
100 feet of a commercial ro art
45dBA
CO
45dBA
50dBA
Mixed -Use Property
45dBA
60dBA
45dBA
50dBA
Commercial Property
N/A
65dBA
N/A
60dBA
11. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three (3) walls and a self -latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes.
12. Storage outside of the building in the front of the property shall be prohibited, with the
exception of the required trash container enclosure.
13. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds (open house, back -to -school night, etc.), include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
14. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of the Pacifica Christian High School including, but not
limited to, Minor Use Permit No. UP2014-008. This indemnification shall include, but not
be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and
other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by applicant, City, and/or the parties initiating or bringing
such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys'
fees, and damages which City incurs in enforcing the indemnification provisions set forth
in this condition. The applicant shall pay to the City upon demand any amount owed to
the City pursuant to the indemnification requirements prescribed in this condition.
15. Prior to issuance of building permits the lease agreement between Pacifica and the
City for the improvement and use of the property shall be executed.
16. Student enrollment shall be restricted as follows:
05-20-2014
Zoning Administrator Resolution No. ZA2014-031
Paqe 7 of 9
a. Year 1: No students
b. Year 2: Seventy-five (75) students maximum
c. Year 3: One hundred and twenty (120) students maximum
d. Year 4 and Beyond: One hundred twenty-five (125) students maximum
Year
Total
Students
Freshmen
Sophomore
Junior Senior
1
0
0
0
0 0
2
75
42
33
3
120
45
40
35
4
125
38
31
28 28
17. Administration/faculty shall be restricted as follows:
a. Years 1 through 3: Ten (10) persons
b. Year 4 and Beyond: Fifteen (15) persons
18. A minimum of one (1) parking space shall be provided for each administration/faculty
member (ten (10) spaces for Years 1 through 3 and fifteen (15) spaces for Year 4 and
beyond).
19. A total of forty (40) parking spaces shall be maintained within the subject property, -
twenty -five (25) of those spaces shall be allocated for the use of City programs and
activities during the first two (2) years of school operation while the school shall have
exclusive use of fifteen (15) parking spaces. After the second year, provided the City
discontinues all use and the school shall have exclusive use of the entire property and
all forty (40) parking spaces.
20. In the event that the City continues its programs and activities and require parking
spaces at the subject property beyond Year 2, the applicant shall be required to
pursue one of the following alternatives:
a. Secure additional off-street parking. Any off-street parking arrangement shall
require the approval of a conditional use permit in accordance with Section
20.40. 100 (Off -Site Parking) of the Municipal Code;
b. Reduce the student enrollment and administration/faculty consistent with the
approved parking management plan; or
C. Obtain a parking waiver pursuant to Section 20.40.110 (Adjustment to Off -
Street Parking).
21. An adequate number of bicycle storage racks shall be provided at the school facility.
22. Pacifica shall be responsible for the control of noise generated by the subject facility.
The use of outside loudspeakers, a paging system or a sound system shall be
included within this requirement. The noise generated by the proposed use shall
comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code.
05-20-2014
Zoning Administrator Resolution No. ZA2014-031
Page 8 of 9
Upon evidence that noise generated by the project exceeds the noise standards
established by Chapter 10.26 of the Municipal Code, the community development
director may require that the applicant or successor retain a qualified engineer
specializing in noise/acoustics to monitor the sound generated by the use and to
develop a set of corrective measures necessary in order to ensure compliance.
23. All proposed signs shall be in conformance with the provisions of Chapter 20.42 (Sign
Standards) of the Newport Beach Municipal Code.
24. No outside paging system shall be utilized in conjunction with this establishment.
25. The student classroom hours during the school year (August to June) shall be from 7:30
a.m. to 3:00 p.m., Monday through Friday. Board/staff meetings, parent/teach
conferences, and student extra curriculum (sports, theater, etc.) are permitted before or
after classroom hours as long as adequate on-site parking is provided.
Office/administrative functions are permitted outside of the classroom hours and during
the summer months.
Fire Department Conditions
26. Every room with an occupant load of three hundred (300) or more shall have one (1) of
its exits or exit -access doorways lead directly into a separate means of egress system
that consists of no less than two (2) paths of exit travel which are separated by a
smoke barrier in accordance with Section 710 in such a manner to provide an
atmospheric separation that precludes contamination of both paths of exit travel by the
same fire. Not more than two (2) required exits or exit -access doorways shall enter
into the same means of egress system per California Building Code Section 442.1.2.
27. Fire Sprinklers shall be required as per California Fire Code Section 903.2., for the E
and A-3 occupancies.
28. A manual and automatic fire alarm system that initiates the occupant notification signal
utilizing an emergency voice/alarm communication system meeting the requirements
of Section 907.5.2.2 and installed in accordance with Section 907.6 shall be installed
in Group E occupancies (school) with an occupant load of fifty (50) or more persons or
containing more than one (1) classroom per California Fire Code Sec. 907.2.3.
29. A fire alarm system shall be required for the A occupancy (gym) as per California Fire
Code Sec. 907.2.1.
Buildinq Division Conditions
30. Obtain a building permit for all proposed improvements and change in uses.
31. For any proposed improvement to the existing facility, accessibility upgrades to the
existing facility shall be required as specified in Section 11B-202.4 of the 2013
California Building Code.
05-20-2014
Zoning Administrator Resolution No. ZA2014-031
Page 9 of 9
32. A new Certificate of Occupancy shall be obtained from the City and posted prior to
occupancy of the school.
Public Works Conditions
33. The parking layout shall comply with City Standard STD -805 -L-A and STD -805 -L -B.
The parking layout shall be reviewed and approved by the City traffic engineer.
34. The project driveway shall be designed to accommodate adequate sight distance per
City Standard STD -110-L.
35. The final parking management plan shall be reviewed and approved by the City traffic
engineer. The requirements of the parking management plan shall be implemented.
36. Students shall be prohibited from parking within the public right-of-way. School staff
shall monitor the public streets adjacent to the school (i. e. Monrovia Avenue and West
15th Street) at least thirty (30) minutes prior to the start of school and at least fifteen
(15) minutes after school begins to ensure that students do not park off-site.
37. School staff shall only be allowed to direct traffic queuing within the school's parking
lot. School staff shall not direct traffic within the public right-of-way.
38. No traffic control devices (i.e. cones, signage) shall be allowed within the public right-
of-way.
39. The applicant shall monitor the drop off/pick up queues to ensure that the queues do
not impact/impede traffic in the public right-of-way.
40. The applicant shall provide busing service to and from the high school starting at the
3rd year of school operation.
41. If parking demand exceeds capacity or student parking on public streets becomes an
issue, the applicant shall secure additional off-street parking. Any off-street parking
arrangement shall require the approval of a conditional use permit in accordance with
Section 20.40. 100 (Off -Site Parking) of the Municipal Code.
42. If issues/problems arise with the Parking Management Plan (i.e- school drop-off/pick-
up, parking queuing within the public right of way, etc.), the applicant shall modify the
Parking Management Plan to the satisfaction of the City traffic engineer and
community development director. Implementation of the modified Parking
Management Plan shall occur immediately upon approval of the City.
05-20-2014
Exhibit "D"
Insurance Requirements
Without limiting Tenant's indemnification of City, Tenant will obtain, provide and
maintain at its own expense during the Term of this Agreement, a policy or policies of
insurance of the type, amounts and form acceptable to City. The policy or policies shall
provide, at a minimum, those items described below.
1. Provision of Insurance. Without limiting Tenant's indemnification of City, and
prior to commencement of work on Property by Tenant or Tenant's agents,
representatives, consultants, contractors and/or subcontractors, Tenant shall
obtain, provide and maintain at its own expense during the term of this
Agreement policies of insurance of the type and amounts described below and in
a form satisfactory to City. Tenant agrees to provide insurance in accordance
with requirements set forth here. If Tenant uses existing coverage to comply and
that coverage does not meet these requirements, Tenant agrees to amend,
supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the insurance commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
rating of a- (or higher) and financial size category class vii (or larger) in
accordance with the latest edition of best's key rating guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Tenant and Tenant's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain Workers' Compensation Insurance, statutory limits, and
Employer's Liability Insurance with limits of at least one million dollars
($1,000,000) each accident for bodily injury by accident and each
employee for bodily injury by disease in accordance with the laws of the
State of California, Section 3700 of the Labor Code.
Tenant and Tenant's agents, representatives, consultants, contractors
and/or subcontractors, shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
B. General Liability Insurance. Tenant and Tenant's agents, representatives,
consultants, contractors and/or subcontractors, shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance,
with coverage at least as broad as provided by Insurance Services Office
form CG 00 01, in an amount not less than five million dollars ($5,000,000)
per occurrence, ten million dollars ($10,000,000) general aggregate. The
policy shall cover liability arising from Property, operations, personal and
Pacifica Christian High School - Orange County Page D-1
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract) with
no endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
C. Automobile Liability Insurance. Tenant and Tenant's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain automobile insurance at least as broad as Insurance Services
Office form CA 00 01 covering bodily injury and property damage for all
activities of Tenant arising out of or in connection with work to be
performed at the Property, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than five million dollars
($5,000,000) combined single limit each accident.
D. Professional Liability (Errors & Omissions) Insurance. Tenant shall
require that Tenant's consultants, contractors and/or subcontractors
providing any design, engineering, surveying or architectural services for
the Property maintain professional liability insurance that covers the
services to be performed, in the minimum amount of one million dollars
($1,000,000) per claim and two million dollars ($2,000,000) in the
aggregate. Any policy inception date, continuity date, or retroactive date
must be before the Effective Date of this Agreement and Tenant shall
require that Tenant's consultants, contractors and/or subcontractors agree
to maintain continuous coverage through a period no less than three (3)
years after completion of the services performed.
E. Automobile Liability Insurance. Tenant and Tenant's consultants,
contractors and/or subcontractors shall maintain automobile insurance at
least as broad as Insurance Services Office form CA 00 01 covering bodily
injury and property damage for all activities of Tenant or all activities of
Tenant's consultants, contractors and/or subcontractors arising out of or in
connection with work to be performed on the Property, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less
than five million dollars ($5,000,000) combined single limit each accident.
F. Builder's Risk Insurance. During construction, Tenant shall require that
Tenant's construction contractors and subcontractors maintain Builders
Risk insurance or an installation floater as directed by City, covering
damages to the work for "all risk" or special causes of loss form with limits
equal to one hundred percent (100%) of the Property as it exists on the
Effective Date and the completed value of the work, with coverage to
continue until final acceptance of the work by Tenant and City. City shall
be included as an insured on such policy, and Tenant shall provide City
with a copy of the policy. City shall not be responsible for any coinsurance
and City shall be named as a loss payee on such policy. "All Risk"
Property Insurance (Operations) including coverage against the perils of
earthquake, fire, flood, explosion of machinery or equipment, and
Pacifica Christian High School - Orange County Page D-2
vandalism covering the full replacement cost of all improvements and
fixtures on the Property. City shall be added as insured under the
standard loss payable endorsement. Tenant waives all rights of
subrogation against City for any damage to the improvements or fixtures
covered by collectable commercial insurance. Tenant's obligations to
provide insurance under this paragraph shall apply to all improvements
and fixtures on the Property without regard to the date of construction or
installation.
G. Property Insurance -Construction. During construction of any
improvements on the Property, Tenant shall maintain Builder's Risk
Insurance against "all risk" of physical loss, including the perils of fire,
collapse and transit, with commercially reasonable deductibles, covering
the total cost of work performed, equipment, supplies and materials
furnished on a replacement cost basis. Tenant's obligation to provide this
coverage is contingent on the availability of coverage at commercially
reasonable rates.
H. Pollution Liability Insurance. Tenant shall require that Tenant's
construction contractors and subcontractors maintain a policy providing
contractor's pollution liability ("CPL") coverage with a total limit of liability
of no less than two million dollars ($2,000,000) per loss and in the
aggregate per policy period dedicated to this project. The CPL shall be
obtained on an occurrence basis for a policy term inclusive of the entire
period of construction. If all or any portion of CPL coverage is available
only on a claims -made basis, then a 10 -year extended reporting period
shall also be purchased. The CPL policy shall include coverage for
cleanup costs, third -party bodily injury and property damage, including
loss of use of damaged property or of property that has not been
physically injured or destroyed, resulting from pollution conditions caused
by contracting operations. Coverage as required in this paragraph shall
apply to sudden and non -sudden pollution conditions resulting from the
escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals,
liquids, or gases, waste materials, or other irritants, contaminants, or
pollutants. The CPL shall also provide coverage for transportation and off-
site disposal of materials. The policy shall not contain any provision or
exclusion (including any so-called "insured versus insured" exclusion or
'.cross -liability" exclusion) the effect of which would be to prevent, bar, or
otherwise preclude any insured or additional insured under the policy from
making a claim which would otherwise be covered by such policy on the
grounds that the claim is brought by an insured or additional insured
against an insured or additional insured under the policy.
Pacifica Christian High School - Orange County Page D-3
4. Endorsements: Policies shall contain or be endorsed to contain the following
provisions:
A. Additional Insured Status. City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as an additional
insured under all general liability and pollution liability policies with respect
to liability arising out of Tenant's activities related to this Agreement and
with respect to use or occupancy of the Property.
B. Primary and Non Contributory. Policies shall be considered primary
insurance as respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims, losses, or
liability arising directly or indirectly from Tenant's operations. Any
insurance maintained by City, including any self-insured retention City
may have, shall be considered excess insurance only and not contributory
with the insurance provided hereunder.
C. Liability Insurance. Liability insurance shall act for each insured and
additional insured as though a separate policy had been written for each,
except with respect to the limits of liability of the insuring company.
D. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Tenant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Tenant hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its consultants, contractors or subcontractors.
E. Reporting Provisions. Any failure to comply with reporting provisions of
the policies shall not affect coverage provided to City, its elected or
appointed officers, officials, employees, agents or volunteers.
F. Notice of Cancellation. The insurance required by this Agreement shall
not be suspended, voided, canceled, or reduced in coverage or in limits
except after thirty (30) calendar days (ten (10) calendar days written notice
of non-payment of premium) written notice has been received by City. It is
Tenant's obligation to ensure that provisions for such notice have been
established.
G. Loss Payee. City shall be included a loss payee under the commercial
property insurance.
Pacifica Christian High School - Orange County Page D-4
5. Additional Requirements.
A. In the event City determines that (i) the Tenant's activities on the Property
creates an increased or decreased risk of loss to the City, (ii) greater
insurance coverage is required due to the passage of time, or (iii) changes
in the industry require different coverage be obtained, Tenant agrees that
the minimum limits of any insurance policy required to be obtained by
Tenant or Tenant's consultants, contractors or subcontractors, may be
changed accordingly upon receipt of written notice from City. With respect
to changes in insurance requirements that are available from Tenant's
then -existing insurance carrier, Tenant shall deposit certificates
evidencing acceptable insurance policies with City incorporating such
changes within thirty (30) calendar days of receipt of such notice. With
respect to changes in insurance requirements that are not available from
Tenant's then- existing insurance carrier, Tenant shall deposit certificates
evidencing acceptable insurance policies with City, incorporating such
changes, within ninety (90) calendar days of receipt of such notice.
B. Any deductibles applicable to the commercial property or insurance
purchased in compliance with the requirements of this section shall be
approved by City.
C. Tenant and Tenant's consultants, contractors and/or subcontractors shall
be subject to the insurance requirements contained herein unless
otherwise specified in the provisions above or written approval is granted
by the City. Tenant shall verify that all consultants, contractors and/or
subcontractors maintain insurance meeting all the requirements stated
herein, and Tenant shall ensure that City is an additional insured on
insurance required from contractors. consultants and/or subcontractors.
D. For General Liability coverage, contractors, consultants and/or
subcontractors shall provide coverage with a format at least as broad as
provided by Insurance Services Office form CG 203 80413.
E. If Tenant maintains higher limits than the minimums shown above, the City
requires and shall be entitled to coverage for the higher limits maintained
by the tenant. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to
the City.
F. Tenant shall give City prompt and timely notice of any claim made or suit
instituted arising out of or resulting from Tenant or Tenant's agents,
representatives, consultants, contractors or subcontractors performance
under this Agreement.
G. Tenant shall provide certificates of insurance, with original endorsements
as required above, to City as evidence of the insurance coverage required
Pacifica Christian High School - Orange County Page D-5
herein. Insurance certificates must be approved by City prior to
commencement of work or issuance of any permit. Current certification of
insurance shall be kept on file with City at all times during the term of this
Agreement.
H. All required insurance shall be in force on the Effective Date, and shall be
maintained continuously in force throughout the term of this Agreement.
In addition, the cost of all required insurance shall be borne by Tenant or
by Tenant's consultants, contractors or subcontractors.
If Tenant or Tenant's consultants, contractors or subcontractors fail or
refuse to maintain insurance as required in this Agreement, or fail to
provide proof of insurance, City has the right to declare this Agreement in
default without further notice to Tenant, and City shall be entitled to
exercise all available remedies.
J. Tenant agrees not to use the Property in any manner, even if use is for
purposes stated herein, that will result in the cancellation of any insurance
City may have on the Property or on adjacent Property, or that will cause
cancellation of any other insurance coverage for the Property or adjoining
Property. Tenant further agrees not to keep on the Property or permit to
be kept, used, or sold thereon, anything prohibited by any fire or other
insurance policy covering the Property. Tenant shall, at its sole expense,
comply with all reasonable requirements for maintaining fire and other
insurance coverage on the Property.
Pacifica Christian High School - Orange County Page D 6
Exhibit "E"
Memorandum of Lease
Pacifica Christian High School - Orange County Page E-1
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
[Exempt from Recordation Fee - Govt. Code §§ 6103 & 27383]
MEMORANDUM OF LEASE AGREEMENT
This Memorandum of Lease Agreement ("Memorandum") is dated '3F -?T. W
2014, and is made between City of Newport Beach, a California municipal corporation
and charter city ("City') and Pacifica Christian High School - Orange County, a
California non-profit corporation ("Tenant"), concerning the Property described in Exhibit
"A;" attached hereto and by this reference made a part hereof.
For good and adequate consideration, City leases the Property to Tenant, and Tenant
leases the Property from City, for the term and on the provisions contained in the
Agreement dated a `. 21C, 2014, including without limitation provisions
prohibiting assignment, subleasing, and encumbering said leasehold without the
express written consent of City in each instance, as well as provisions for an option to
extend the Agreement for up to two (2) successive five (5) year terms and a first right of
refusal to purchase the Property subject to City's compliance with applicable surplus
property statutes, all as more specifically set forth in said Agreement, which said
Agreement is incorporated in this Memorandum by this reference.
The Agreement's term is ten (10) years, beginning Ci 2lo•ly , and ending
�'l 2�•2.OLL� , unless extended bythe parties.
This Memorandum is not a complete summary of the Agreement. Provisions in this
Memorandum shall not be used in interpreting the Agreement's provisions. In the event
of conflict between this Memorandum and other parts of the Agreement, the other parts
shall control. Execution hereof constitutes execution of the Agreement itself.
[Signatures on the next page]
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease as of the dates written below.
WIN
City of Newport Beach
a California Municipal Corporation
Date: '-A s AIt
Dav , City Manager
ATTEST:
Date: I
Aig l � 6vyj�_
Leilani I. Brown
City Clerk
Aaron C. Harp-,r).hrn 01
City Attorney
IN=IZle1►kI
Pacifica Christian High School -Orange
County
a California non-profit corporation
Date: 9 /1S//tr
By: /" V.
Keith Carlson
President
Date: .**Aq kr /ZW w/V
By:�ii� ✓�
David Bahnsen
Vice President/Treasurer
NOTARY ACKNOWLEDGMENT
State of California )
County of ORANGE )
On tP1 _q, ,'-C lui before mej NNiFE{�ltt1u
1L 9%Ak%yEY Notary Public,
personally appeared DAVE KIFF, who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity(ies), and that by his signature on the instrument
the person, or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California )
County of ORANGE )
JENNIFER ANN MULVEY
Commission # 2045022
a: d =
� •p_.. Notary Public -California
Orange County
M Comm., Expires Oct 12, 2017 +
NOTARY ACKNOWLEDGMENT
On Sqb A before me,(� 1iI�S71At ( M le(jtY! Notary Public,
personal) appeared Ke I+1 ' &a-3 who proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that s/he executed the same in his/her authorized
capacity(ies), and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature CHRISTINE G. ANDERSON
Commission # 1979966
-ej Notary Public - California z
Orange County >
(Seal) My Comm. Expires May 28, 2016'
ALL PURPOSE ACKNOWLEDGMENT
I
STATE OF CALIFORNIA )ss
COUNTY OF ORANGE }
On J�c3°�i?C /Z , 2014, before me Judi Lowenthal, Notary Public, personally appeared
-7 cC7J
who proved to me on the basis of satisfactory evidence to be the persono� whose name(5) is/are
subscribed to the within instrument and acknowledged to me that he/sh /�+ ey executed the same in
his/ham_ authorized capacity(ies), and that by his/her{their signature(sr) on the instrument the
personal, or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand a official sea
n /A JUDI 11W11THAL
Signature '&' /L ;
NOTARY�Pueuc 919325 rY
CALIFORNIA V1
ORANGE CGUNTY
MY CGMM. EZF. JAN. 25, 2015'"
(NOTARY SEAL)
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could
prevent fraudulent attachment of this certificate to another document.
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW.
Title of Document Type /l <snv a-wr sV(2 ";r.Jf
Number of Pages Date of Document
Signer(s) Other Than Named Above
All Purpose Acknowledgment
CITY OF
NEWPORT BEACH
City Council Staff Report
September 09, 2014
Agenda Item No. 21.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Kimberly Brandt, Community Development Director — (949) 644-3226,
kbrandt@newportbeachca.gov
PREPARED BY: Lauren Wooding, Real Property Administrator / Seimone Jurjis, Chief Building
Official
PHONE: (949) 644-3236
TITLE: A Lease Agreement Between the City of Newport Beach and Pacifica Christian High
School - Orange County, Authorizing the Lease of the West Newport Community
Center at 883 West 15th Street for a Future High School
ABSTRACT:
A lease agreement between Pacifica Christian High School - Orange County for the City -owned 17,455
square -foot West Newport Community Center building and parking lot, located at 883 West 15th Street.
Pacifica intends to operate a new private high school there.
RECOMMENDATION:
a) Approve and authorize the Mayor to execute a ten-year lease agreement (Staff Report Attachment CC
1) with an annual rent of $289,054.80 per year, with reductions for the City's continued use of the facility
for community programs, and further adjusted annually by the Consumer Price Index (CPI), with Pacifica
Christian High School - Orange County;
b) Authorize the City Manager to approve all future amendments to the lease agreement, which are
approved as to form by the City Attorney, that are necessary to implement the lease; and,
c) Approve a waiver of City Council Policy F-7 based on the findings contained the staff report and the
Lease Agreement (Staff Report Attachment CC 4).
FUNDING REQUIREMENTS:
Pacifica's rental of this site will generate about $202,000 per year at the initial period, provided that the City
retains some use of the gym and two classrooms. This reflects a 30% reduction from rent as described in
the lease.
DISCUSSION:
Background
Pacifica Christian High School — Orange County (Pacifica) has approached the City to lease our 17,455
square -foot West Newport Community Center (WNCC) building and parking lot (Attachment CC 2).
Pacifica proposes to improve and modify the building to use and operate a high school with an on-site
parking lot.
21-1
Pacifica proposes to operate a private high school for about 125 students (9th through 12th grade), similar
to their existing campus in Santa Monica, California. The school will occupy the building in phases, with
only administration and faculty staff in Year One (September 2014 to June 2015); Year Two will include 75
students in 9th and 10th grade; Year Three will include 120 students in 9th through 11th grade; and Year
Four and beyond will include 125 students in all four grades. Pacifica intends to be in session from
September to June, with hours from 7:30 a.m. to 3:00 p.m.
Continued Programming
Until replaced with a larger community center, the WNCC is an important and vital community recreational
facility for many west Newport Beach residents. Therefore, the Recreation and Senior Services
Department will continue to offer recreation programming such as dance, gymnastics, and fitness classes,
as well as youth and adult sports in the gymnasium and two classrooms, until a new community center
facility is constructed in west Newport Beach.
Recreation classes will frequently occur at the same time as the proposed use by Pacifica; a 'City Use of
Property Schedule' outlining the hours of the City's continued programming is incorporated as Exhibit B in
the lease agreement (Attachment CC 1). The outdoor playground equipment will remain in place and open
for use by the community until it is moved or replaced at a new location on the site or the new WNCC
facility is opened. The restrooms and parking will continue to be available to the public and users during
recreation programming.
West Newport Community Center- Future Location
Staff continues to study locations for the new West Newport Community Center and is evaluating a full list
of services and amenities, including a fitness center, gymnasium, gymnastics room, wellness room, flexible
classroom space, meeting rooms, a community pool, pickleball courts, walking trail, community garden,
and a playground. Community outreach and public hearings have been held and will continue to be held for
the new WNCC. However, staff believes that the proposed lease guarantees the use of the existing
WNCC for essential recreational uses until such time the new facility is constructed and operational.
Zoning
On August 14, 2014 the Zoning Administrator approved a minor use permit (Attachment CC 3), which
allows Pacifica to operate a high school at the site. Subject to City Council approval of the proposed lease
agreement, Pacifica will need to obtain the required building permits prior to constructing their proposed
tenant improvements.
City Council Policy F-7, Income Property
Because Pacifica's offer to the City to lease the WNCC was unsolicited, staff did not conduct an open bid
process for additional offers. As discussed below, the proposed lease/rental rate reflects the fair market
value rent for the property, as established by two different appraisals.
Staff is recommending that the City Council waive Policy F-7 Income Property (Attachment CC 4), based
on the following findings:
1. Redevelopment of the property would require excessive time, resources and costs which would
outweigh other financial benefits;
2. Converting the property to another use or changing the manager, concessionaire or lessee of the
property would result in excessive vacancy, relocation or severance costs, which would outweigh other
financial benefits and loss of the recreational amenity; and,
3. The proposed tenant provides an essential or unique service to the community that might not
otherwise be provided should an alternate tenant be selected to operate the facility.
Proposed Agreement
Pursuant to Section B of City Council Policy F-7, Income Property, the City sought the assistance of two
21-2
appraisers to determine the fair market value rent for the property. The proposed rent is $289,054.80 per
year ($24,087.90 per month), and will adjust annually upon the first day of each lease year by the
Consumer Price Index. The appraisals confirmed the proposed rental rate is consistent with fair market
value.
The proposed terms of the Lease Agreement are summarized below:
1. The term of the agreement will be for ten years with two (2) five year extension options, unless
terminated as provided by the agreement.
2. Rent shall be set at $289,054.80 per year, with payments made in 12 monthly installments of
$24,087.90, and will adjust annually based on the change in the Consumer Price Index (CPI) during the
initial term of the lease, and the option term if extended.
3. The annual rent shall be discounted commensurate with the City's continued use of the facility for
recreation programming, by thirty percent (30%) with City use of the gymnasium and classrooms two and
four, and by twenty percent (20%) with City use of only the gymnasium, unless the City terminates its use
of the facility.
4. Pacifica may operate the building and parking lot as a high school during normal school hours, as well
as after school sports and special events, but may not accept deliveries or conduct other activities between
the hours of 10:00 p.m. and 7:00 a.m. which may create excess noise or disturb neighboring residences.
5. Pacifica is responsible for construction of all site work and building improvements, including
addition/removal of walls, flooring, lighting, signage, utilities, building systems, etc. that may be required to
operate as a high school. The City will share in the costs to repair and waterproof the basement, up to a
cap of $15,000. Pacifica is responsible for maintenance and repair of the lease premises, including regular
janitorial service.
6. Rooms and equipment still being used for City recreation programs shall not be used and/or
reconfigured by Pacifica until the City terminates use of the facility. The existing playground equipment will
remain in place until we relocate it or have a new Community Center facility. In the meantime, Pacifica will
pay the labor cost of relocation, and the City will purchase new equipment (we've determined that the
existing equipment is near the end of its useful life).
7. Pacifica shall provide no less than twenty-five (25) parking spaces for use by City recreation programs,
until the City terminates use of the facility.
8. Pacifica shall have the first right of refusal to purchase should the City elect to sell, subject to the
City's compliance with California Government Code Sections 54222 et seq. or the alternative provisions in
California Government Code Sections 37420 et seq., or their successor statutes.
9. Insurance and Indemnity provisions consistent with current standards, all other lease terms are
consistent with the City's standard terms.
This agreement has been reviewed by the City Attorney's office and has been approved as to form
ENVIRONMENTAL REVIEW:
The Zoning Administrator previously found this project to be categorically exempt pursuant to Title 14 of the
California Code of Regulations (Section 15301, Article 19 of Chapter 3, Guidelines for Implementation of
the California Environmental Quality Act) under Class 1 (Existing Facilities). The proposed lease
agreement is consistent with the Zoning Administrator's action on the project; therefore, no further
environmental review is required.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at
which the City Council considers the item). The City also communicated with the West Newport Beach
Association to make them aware that this item was on the Council's agenda.
21-3
ATTACHMENTS:
Description
Attachment CC 1 - Lease Agreement
Attachment CC 2 - Maps
Attachment CC 3 - Zoning, Administrator Resolution No. ZA2014-031
Attachment CC 4 - City Council Policy F-7, Income Property
21-4
ATTACHMENT CC 1
GROUND LEASE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
PACIFICA CHRISTIAN HIGH SCHOOL OF ORANGE COUNTY
This Lease Agreement ("Agreement') is made and entered into as of the
_day of August, 2014 ("Effective Date'), by and between the City of Newport Beach,
a California municipal corporation and charter city ("City"), and Pacifica Christian High
School - Orange County, a California non-profit corporation ('Tenant'). City and Tenant
are sometimes individually referred to as "Party" and collectively as "Parties" herein.
RECITALS
A. City is the owner of the property, structures, and improvements commonly
known as West Newport Community Center located at 883 West 15th Street, Newport
Beach, California [Assessor's Parcel Number 424-011-37] ("Property'). The Property
includes an existing 17,455 square foot, two-story building with gymnasium, on-site
parking, and play area and is depicted on Exhibit "A" attached hereto and incorporated
herein by this reference.
B. City owns fee simple title to the Property pursuant to an Agreement
between the City and Newport Campus Church dated October 10, 1988.
C. Tenant is a non-profit corporation commonly known as Pacifica Christian
High School - Orange County ('Pacifica Christian High School'). Pacifica Christian High
School is to be operated as a private school with instruction for ninth through twelfth
grade.
D. Tenant proposes to lease the Property including the existing 17,455
square foot, two-story building with gymnasium, on-site parking, and play area. Subject
to City review and approval as to scope, Tenant may make modifications and
improvements to the existing buildings, site, and equipment which may be necessary to
operate the Property as a high school. The Property is depicted and legally described
on Exhibit "A" attached hereto and incorporated herein by this reference. Tenant may
begin constructing the necessary improvements upon execution of this Agreement and
delivery of the Property, subject to receipt of necessary permits and approvals, but in no
event before September 15, 2014. Equipment (as defined in Recital "E") may not be
removed until the Shared Use Termination Date (as defined in Section 5.3), or at the
time in which new Equipment is installed on the Property by Tenant to replace the
existing Equipment, pursuant to Section 8.1.2,whichever occurs first. Construction shall
not have a material impact or prevent City's use of the various classrooms, equipment,
and associated parking on the Property (i.e. installation of partition walls to demise
Room 2 and Room 4), subject to the schedule attached as "Exhibit B" attached hereto
and incorporated herein by this reference. Further, Tenant shall insure that restrooms
are available for use during City's recreation programming. Improvements to building
and site must comply with current building code requirements (i.e. ADA compliance).
21-5
E. The playground equipment ("Equipment') on the Property consists of that
which is fully depicted in "Exhibit A" attached hereto and incorporated herein by this
reference.
F. Further, all Tenant modifications and improvements to the existing
buildings, site, and Equipment, including parking restrictions, are subject to the City
Zoning Administrator approval, as resolved in Resolution No. ZA2014-031 (PA2014-
045) on August 14, 2014 and any future amendments or revisions thereto and attached
hereto and incorporated herein by this reference as "Exhibit C."
G. Pursuant to City Council Policy F -7(B), the City sought the assistance of
an appraiser to determine the fair market value rent for the Property. Under City
Council Policy F -7(E)(3) and (5), the City did not conduct an open bid process because
converting the Property to another use or changing the manager, concessionaire or
lessee of the Property would result in excessive vacancy, relocation or severance costs,
which would outweigh other financial benefits and the Property provides an essential or
unique service to the community that might not otherwise be provided were full market
value of the Property be required. Although the City did not conduct an open bid
process, the City shall charge Tenant the fair market value rent for the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
City and Tenant hereby agree as follows:
1. DEFINITIONS
1.1 General Definitions. As used in this Agreement, the following words and
phrases shall have the following meanings:
(a) Alteration — any improvements, additions, alterations, changes, or
modifications of the Property made by Tenant, its employees, agents, contractors, and
subcontractors.
(b) Authorized City Representative — the City Manager or his/her
designee.
(c) Commencement Date — the date the City delivers possession of the
Property to Tenant in the condition provided in Section 8.1.
(d) Expiration — the lapse of the time specified as the Term of this
Agreement, including any extension of the Term resulting from the exercise of an option
to extend.
(e) Law(s) — any judicial decision, statute, constitution, ordinance,
resolution, regulation, rule, administrative order, or other requirement of any municipal,
county, state, federal, or other government agency or authority having jurisdiction over
the Parties hereto or the Property.
Pacifica Christian High School - Orange County Page 2
21-6
(f) Maintenance or Maintain — repairs, replacement, maintenance,
striping, repainting, and cleaning.
(g) Person — one (1) or more natural persons, or legal entities,
including, without limitation, partnerships, corporations, trusts, estates, associations, or
a combination of natural persons and legal entities.
(h) Provision — any term, covenant, condition, or clause in this
Agreement that defines, establishes, or limits the performance required or permitted by
either Party.
(i) Rent — includes rent, taxes, and other similar charges payable by
Tenant under the provisions of this Agreement.
Q) Successor—assignee, transferee, personal representative, heir, or
other Person succeeding lawfully, and pursuant to the provisions of this Agreement, to
the rights or obligations of either Party.
(k) Term — the Initial Term, as the same may be extended by the
Option Term pursuant to the provisions of this Agreement.
(1) Termination — the termination of this Agreement, for any reason,
prior to Expiration.
1.2 Other Definitions. — The following additional terms are defined in the
following sections of this Agreement:
(a) Rent §4
(b) Hazardous Materials §16
(c) Indemnified Parties §10.1
(d) Option Term(s) §3.2
(e) Property Recitals, §A
(f) Equipment Recitals, §E
(g) Initial Term §3.1
(h) Tenant Improvements §8.1
2. PROPERTY
City finds it to be consistent with public facility uses to grant Tenant a right to
remodel, maintain, use and operate the existing 17,455 square foot two-story building
with gymnasium, on-site parking, and play area on the Property. Therefore, subject to
Pacifica Christian High School - Orange County Page 3
21-7
the terms and conditions set forth herein, City hereby leases to Tenant and Tenant
agrees to lease the Property in an "as is" condition as tendered from City, subject to any
representations, warranties and covenants of the City specifically set forth in this
Agreement. Tenant agrees that no representations with respect to the condition or
improvements of the Property have been made by City except as specifically set forth in
this Agreement.
3. TERM
3.1 Term of Agreement. The initial term of this Agreement shall be ten (10)
years from the Commencement Date ("Initial Term"), unless terminated sooner as
provided in this Agreement, or extended as provided in Section 3.2.
3.2 Option to Extend. Provided Tenant is not then in default under this
Agreement beyond applicable notice and cure periods, Tenant may extend the term of
this Agreement for two (2) additional successive terms of five (5) years (the "Option
Term") commencing on Expiration of the Initial Term or an Option Term, on the same
terms and conditions as contained in this Agreement. Tenant must exercise its option
by giving City written notice of its intention to extend the Term at least six (6) months
prior to Expiration of the Initial Term or an Option Term.
3.3 Purchase Option. Subject to City's obligation to first comply with the
Surplus Lands Act (Cal. Govt. Code §§ 54220, et seq.) and provided Tenant is not in
default under this Agreement beyond applicable notice and cure periods; , City shall, in
good faith and upon the same material terms as would be offered to other private
parties, grant Tenant a continuing First Right of Refusal (FROR) to purchase, should
City elect to transfer the Property. For purposes of this Agreement, "transfer" and similar
terms mean and include, without limitation, a sale or other transfer of all or any part of
the Property, or interest therein, either alone, or as part of a larger sale, provided,
however, that "transfer' shall not include the granting of an easement or similar right on
a portion of the Property that would not materially interfere, disrupt, or frustrate
Tenant's contemplated use pursuant to this Agreement.
3.4 Hold Over. Should Tenant, with City's consent, hold over and continue in
possession of the Property after Expiration of the Term or any Option Term, Tenant's
continued occupancy of the Property shall be considered a month-to-month tenancy
subject to all the terms and conditions of this Agreement, except the provisions of
Sections 3.1 and 3.2.
3.5 Redevelopment of Property. Should City redevelop the Property for City
use during the term of this Agreement, or any extensions thereof, which will materially
interfere with Tenant's ability to occupy or use all or a portion of the Property, City shall
provide Tenant with at least two (2) years' prior written notice of termination of this
Agreement, and in no event shall City commence redevelopment of the Property until at
least two (2) years after Tenant's receipt of such written notice.
Pacifica Christian High School - Orange County Page 4
21-8
4. RENT
4.1 Rent. Tenant shall commence payment of rent upon the Commencement
Date. The 'Rent," which includes the use of the Property, shall be established at Two
Hundred Eighty Nine Thousand, Fifty Four Dollars and 80/100 Cents ($289,054.80) per
year. Rent shall be paid, in advance, in equal monthly installments on the first day of
each month (e.g., Twenty Four Thousand, Eighty Seven Dollars and 90/100 Cents
($24,087.90) per month). Rent for any partial month shall be prorated in accordance
with the actual number of days in that month and shall be due on the first day of that
month that falls within the Term.
Rent due hereunder will be subject to the rent adjustment provisions of
Section 4.2 below. Tenant shall send said rent to the mailing address or send an
electronic fund transfer via the web address provided in Section 4.5. Tenant shall be
responsible for any delays in the mode of sending the rent payment to City.
4.2 Rent Adjustments. Rent may be adjusted on the 1st anniversary of the
Commencement Date and then on the 1st of each Lease Year thereafter (the term
"Lease Year" as used herein refers to successive twelve (12) month periods,
commencing with the Commencement Date of this Agreement) to reflect increases in
the cost of living as indicated by the Consumer Price Index described below, except as
set forth in Section 4.3. Rent may be adjusted if the Consumer Price Index for the Los
Angeles — Orange County - Riverside Area, All Urban Consumers, All Items ('Index"),
as published by the United States Department of Labor, Bureau of Labor Statistics
('Bureau"), increases over the Base Period Index. The initial 'Base Period Index" shall
be the Index for the calendar month which is four (4) months prior to the month of the
Commencement Date. The initial Base Period Index shall be compared with the Index
for the same calendar month for each subsequent Lease Year ("Comparison Index").
The Comparison Index used for a given year's adjustment calculation will become the
Base Period Index for purposes of the next annual Rent adjustment calculation. If the
Comparison Index is higher than the Base Period Index, then Rent for the next Lease
Year shall be increased by the amount of such percentage change. Should the Bureau
discontinue the publication of the above Index, or publish same less frequently, or alter
same in some other manner, then the Parties shall adopt a substitute Index or substitute
procedure which reasonably reflects and monitors consumer prices. City shall notify
Tenant in writing of any annual adjustment pursuant to this Section 4.2 at least thirty
(30) days prior to the effective date of such adjustment, but in no event sooner than
thirty (30) days from the notice date.
4.3 Rent Reductions (City Use of Property). Rent shall be reduced by thirty
percent (30%) during City's shared use of Rooms 2 and/or 4, the gym and Equipment,
pursuant to Section 5.3 and the schedule shown on "Exhibit B." Rent shall be reduced
by twenty percent (20%) during City's shared use of the gym and Equipment, pursuant
to Section 5.3 and the schedule shown on "Exhibit B." The rental rate shall be adjusted
to one hundred percent (100%) upon the Shared Use Termination Date as defined in
Section 5.3.
Pacifica Christian High School - Orange County Page 5
21-9
4.4 Notwithstanding the Index adjustments described above, if City, in its sole
and absolute discretion, believes that notwithstanding such adjustments pursuant to
Section 4.2, Rent, as adjusted, does not accurately reflect the fair market rental value of
the Property the "FMR"), City may elect to adjust Rent at the commencement of the
eleventh (11r ) Lease Year to reflect the FMR pursuant to this Section (which
adjustment shall be in lieu of the adjustment pursuant to Section 4.2). City shall provide
written notice to Tenant if it elects to adjust rent under this Section and such Rent
adjustment shall become effective no sooner than nine (9) months after notice. Within
thirty (30) calendar days thereafter, City and Tenant will attempt in good faith to agree
upon an adjustment in Rent based upon the FMR. If City and Tenant are unable to
agree within such thirty (30) calendar day period, the Property will be appraised to
determine its fair market rental value in accordance with this Section. City shall, within
ten (10) days after the expiration of such thirty (30) day period, submit to Tenant three
(3) California licensed appraisers experienced in commercial real estate lease
appraisal, and experience in commercial real estate in the Newport Beach, California
area; Tenant shall select one (1) appraiser from the three (3) submitted appraisers to
appraise the Property. City shall pay all costs associated with the appraiser and the
appraisal. The fair market rental value determined by the appraiser will constitute rent
for the eleventh (11th) Lease Year and each successive year remaining on the
Agreement; provided, however, that in no event will Rent so determined be less than
that otherwise payable through the annual Index adjustments described above.
4.5 Payment Location. All payments of rent shall be made in lawful money of
the United States of America and shall be paid to City in person or by United States'
mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive,
P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may
from time to time designate in writing to Tenant. If requested by City, Tenant shall make
payments electronically (at www.newportbeachca.gov) or by wire transfer (at Tenant's
cost). Tenant assumes all risk of loss and responsibility for late charges and
delinquency rates if payments are not timely received by City regardless of the method
of transmittal.
4.6 Late Payment. Tenant hereby acknowledges that the late payment of
Rent or other sums due hereunder will cause City to incur costs not contemplated by
this Agreement, the exact amount of which is extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges. Accordingly,
any payment of any sum to be paid by Tenant not paid when due and then within five
(5) calendar days of its due date shall be subject to a ten percent (10%) late charge.
City and Tenant agree that this late charge represents a reasonable estimate of such
costs and expenses and is fair compensation to City for its loss suffered by such late
payment by Tenant.
4.7 Interest on Unpaid Sums. Unpaid sums due to either City or Tenant under
this Agreement shall bear interest at the rate of ten percent (10%) per annum on the
unpaid balance, including but not limited to late payment penalties, from the date due
until paid.
Pacifica Christian High School - Orange County Page 6
21-10
4.8 Additional Rent. Any provision in this Agreement that requires Tenant to
pay additional amounts classified as "additional rent" shall be paid within thirty (30)
calendar days of City's written demand therefor (unless a different time for payment is
expressly provided in this Agreement). Additional rent does not reduce or offset
Tenant's obligations to pay Rent.
5. BUSINESS PURPOSES AND USE OF PROPERTY
5.1 Business Purposes. The Property is to be used by Tenant for the
construction, maintenance, use, and operation of a high school and for no other use.
The Tenant shall be responsible for obtaining all required permits and licenses for the
construction, maintenance and operation of the high school and complying with all
applicable conditions imposed by such permits and licenses. Tenant shall have use of
the Property throughout the Term, subject to the City's shared use rights set forth in
Section 5.3
5.2 Operation of Property. Tenant shall operate and manage the Property in a
manner comparable to other private high schools providing similar uses and services.
Except with respect to any entry onto and/or use of the Property by City, its employees,
contractors, agents, customers, invitees, elected officials, and volunteers, Tenant is
responsible for the security of the Property and must close and secure all points of
access each night. Tenant use of the Property shall comply with all use permits,
conditions, laws, and terms of this Agreement.
5.3 Shared Use of Lease Property. Tenant shall continue to allow City to
use portions of the Property, including restrooms, during the times specified on "Exhibit
B", which may be amended in writing from time to time by mutual agreement of Tenant
and City, each acting reasonably and in good faith, as follows: (a) use of the gymnasium
for City's programming, (b) use of the gymnasium by local schools and youth sports
leagues, such as Carden Hall and Newport Junior Basketball League at a reasonable
rate, consistent with the City's facility rental rates; (c) use of Room Four (4) for City's
programming; and (d) use of Room Two (2) for City's programming. All of City's shared
use rights shall terminate upon the date on which City confirms in writing that it no
longer requires shared use of the Property (the "Shared Use Termination Date"). Tenant
shall have the right to use the gymnasium and Room Four (4) at any time not reserved
for City use, as specified on "Exhibit B," and at such other times as may be permitted by
City. Tenant shall be responsible for any damage to City equipment in Room Four (4)
resulting from any entry into and/or use of Room Four (4) by Tenant and/or any of its
employees, contractors, agents, representatives, customers, students, and invitees.
Tenant shall ensure that all City equipment in Room Four (4) is returned to its original
set-up or configuration, should Tenant require use of the room. City shall remove all
such equipment promptly upon termination of City's right to use Room Four (4). Tenant
shall not have use of Room Two (2) until such time the room is no longer used for
programming by City; existing gymnastics equipment must remain in place and cannot
be reconfigured for temporary use by Tenant. City may require use of Room Two (2)
outside of the times specified on "Exhibit B;" reserved through the City Recreation &
Senior Services Department. City shall not permit any use of the Property pursuant to
Pacifica Christian High School - Orange County Page 7
21-11
this Section 5.3 (i) other than strictly during the times set forth herein and as may be
amended from time to time and/or (ii) in any manner that results in unreasonable wear
and tear and/or requires janitorial or other maintenance work in excess of the type and
amount of such work that would be reasonable and customary for City's contemplated
use unless otherwise agreed upon by City and Tenant.
City shall cooperate with Tenant, act reasonably and in good faith, and
communicate with Tenant regularly and proactively regarding any potential for City's
shared use beyond the initially contemplated time periods. City shall not assign its
shared use rights under this Agreement to a third party, without Tenant's written
consent. At any time during City's exercise of the Shared Use of the Property, Tenant
shall have the option to give one (1) year's written notice to terminate this Agreement.lf
Tenant exercises this termination right, Tenant shall, at its cost, (i) surrender the
Property on the applicable termination date in a condition reasonably acceptable to the
City, that permits City to continue its use of the Property in the same manner as before
the lease and Tenant's use of the Property; and (ii) remove Tenant's signage and other
identifying marks and repair any damage caused thereby.
After the expiration of the Shared Use term, City and Tenant shall meet in good
faith to discuss the possibility to allow other community groups to use and/or sublet the
Property
5.4 Prohibited Uses. Tenant shall not use the Property for any purpose other
than a high school. The high school is for the exclusive use of the Tenant's employees,
contractors, agents, volunteers, guests and invitees. Use of the Property for a
temporary construction yard or any construction staging is strictly prohibited, except in
connection with the construction of any tenant improvements in accordance with
Section 8. Tenant shall not hold the Property open for use by the general public. Tenant
shall not use or permit the use of the Property in any manner that: (a) creates a
nuisance; or (b) violates any Law. Further, Tenant shall limit events or activities (i.e.
deliveries, sporting events, dances, etc.) at the high school between the hours of 10:00
p.m. and 7:00 a.m., which may create noise or be disruptive to the neighboring
residential properties.
5.5 Signage. Tenant may install permanent signage upon the Property in
such locations as Tenant desires, but until the Shared Use Termination Date shall
ensure that identifying and directional signage for shared use of the Property for City
programs is maintained and installed. The existing West Newport Community Center
monument sign shall remain in place until the Shared Use Termination Date. Tenant
must obtain necessary approvals and permits for signage, which must comply with
applicable City regulations and conditions (which consent shall not be unreasonably
withheld, conditioned or delayed). All signage placed by Tenant on, in or about the
Property shall remain the property of Tenant and shall be removed by Tenant upon
termination or expiration of this Agreement at Tenant's expense, and any damage
caused by removal shall be repaired at Tenant's expense.
5.6 Parking. Tenant shall provide no less than twenty-five (25) on-site parking
Pacifica Christian High School - Orange County Page 8
Pi6f'a
stalls for City program use during school hours until notified in writing by the City that
the spaces are no longer required, or the Shared Use Termination Date, whichever
occurs first. Tenant must comply with the parking requirements outlined in the minor use
permit conditions approved and adopted by Zoning Administrator Resolution No.
ZA2014-031 (PA2014-045) on August 14, 2014 and any future amendments or
revisions thereto. Non-compliance with these conditions shall constitute a default under
this Agreement, and subject to the provisions of Section 14, City shall have the rights to
terminate this Agreement.
5.7 Personnel. Tenant shall be responsible for hiring the necessary personnel
to conduct the daily operation of a high school. Tenant shall comply with all applicable
federal, state, and local Laws related to minimum wage, Social Security,
nondiscrimination, ADA, unemployment compensation and workers' compensation.
5.8 Independent Contractor. It is understood that Tenant is an independent
contractor and not an agent or employee of City. The manner and means of operating
the Property are under the control of Tenant, except to the extent they are limited by
statute, rule or regulation and/or the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Tenant's employees.
Nothing in this Agreement shall be deemed to constitute approval for Tenant or any of
Tenant's employees or agents, to be the agents or employees of City. City
acknowledges that is has no interest in the business of Tenant.
6. TAXES, LICENSES AND OTHER OBLIGATIONS
6.1 Payment of Taxes. Tenant shall pay directly to the appropriate taxing
authorities all taxes applicable to this Agreement, fixtures and Tenant's personal
property on the Property, that are levied or assessed against Tenant during the Term.
Taxes shall be paid before delinquency and before any fine, interest, or penalty is due
or imposed by operation of law. Tenant shall, upon request, promptly furnish to the City
reasonably satisfactory evidence of payment. City hereby gives notice to Tenant,
pursuant to Revenue and Tax Code Section 107.6, that this Agreement may create a
possessory interest that is the subject of property taxes levied on such interest, the
payment of which taxes shall be the sole obligation of Tenant. Tenant shall pay, before
delinquency all taxes, assessments, license fees and other charges ("Taxes") that are
levied or assessed against Tenant's interest in the Property or any personal property
installed on the Property.
6.2 Payment of Obligations. Tenant shall promptly pay, when due, any and all
bills, debts, liabilities and obligations incurred by Tenant in connection with Tenant's
occupation and/or use of the Property.
6.3 Challenge to Taxes. Tenant shall have the right in good faith, at its sole
cost and expense, to contest the amount or legality of any Taxes on or attributable to
this Agreement, the Property, Tenant's personal property, or Tenant's occupation and/or
use of the Property, including the right to apply for reduction. If Tenant seeks a
reduction or contests such Taxes, Tenant's failure to pay the Taxes shall not constitute
Pacifica Christian High School - Orange County Page 9
21-13
a default under this Agreement as long as Tenant complies with the provisions of this
Section. City shall not be required to join in any proceeding or contest brought by
Tenant unless the provisions of any Law require that the proceeding or contest be
brought by or in the name of City. In that case, City shall join in the proceeding or
contest or permit it to be brought in City's name as long as City is not required to bear
any cost. If requested by Tenant, City shall execute any instrument or document
necessary or advisable in connection with the proceeding or contest. Tenant, on final
determination of the proceeding or contest, shall immediately pay or discharge any
decision or judgment rendered, together with all related costs, charges, interest and
penalties. Tenant shall indemnify, defend and hold harmless the City, its council
members, boards, commissions, committees, officers, employees, Authorized City
agents and volunteers ("Indemnified Parties," as defined in Section 10.1) from and
against any liability, claim, demand, penalty, cost or expense arising out of or in
connection with any contest by Tenant pursuant to this Section.
6.4 No Rent Offset. Any payments under this Section 6 shall not reduce or
offset Rent payments. City has no liability for such payments.
7. UTILITIES.
Tenant shall be responsible for all utility connection fees and ongoing monthly
costs. Consideration for the City's pro rata share of utility costs is included in the rent
reductions discussed in Section 4.3 above.
8. ALTERATIONS TO THE PROPERTY.
8.1 Tenant Improvements. On the Commencement Date City shall deliver
possession of the Property to Tenant free and clear of any prior tenants or occupants
(including, without limitation, their equipment and personal property), generally free of
any rubbish and debris, free of any construction materials and equipment, and
otherwise in its "as -is" condition, subject to any representations, warranties and
covenants of the City specifically set forth in this Agreement. Subject to compliance
with all Laws, Tenant may construct improvements consistent with those shown on
Exhibit "C," as attached hereto and incorporated herein, as may be revised or modified
in order to obtain entitlements and/or building permits from the applicable local and
state agencies. Tenant shall obtain all necessary entitlements and permits in order to
construct. Tenant shall pay for all costs associated with construction to reconfigure the
site to use as a high school including but not limited to addition/removal of demising
walls in classrooms, addition/removal of wall coverings, flooring, lighting, and any
addition/removal of restrooms, locker rooms, HVAC/mechanical equipment, electrical,
plumbing, etc. Subject to compliance with all applicable Laws, all improvements by the
Tenant must be submitted for review of improvement plans and permitting, and
construction shall be subject to the prior written approval of the City Manager or his/her
designee, which approval shall not be unreasonably withheld, conditioned or delayed so
long as the improvements are consistent with those shown on Exhibit "C" as may be
revised or modified as set forth above. Improvements shall be performed between 7:00
a.m. and 6:00 p.m. on non -holiday weekdays. Any contractors hired by Tenant shall be
Pacifica Christian High School - Orange County Page 10
21-14
fully licensed and bonded. Tenant's contractors and any subcontractors shall obtain
insurance in an amount and form to be approved by City's Risk Manager, including
workers compensation insurance as required by law, general liability, automobile liability
and builder's risk insurance covering improvements to be constructed accordance with
the applicable requirements set forth in Exhibit "D," all pursuant to standard industry
custom and practice. City shall be named as an additional insured on the contractor's
and any subcontractor's policies.
8.1.1 Early Occupancy: Tenant may enter and occupy the Property as
early as thirty (30) calendar days prior to the Commencement Date provided that
Tenant does not interfere with City's relocation efforts at the Property and allows City
and it's agents and employees to enter the Property to continue its relocation efforts up
to thirty (30) calendar days past the Commencement Date. All entries on to the Property
by Tenant prior to the Commencement Date shall be subject to all of the terms,
covenants and conditions of this Agreement, including, but not limited to, Tenant's
insurance obligations and Tenant's indemnity obligations contained in Section 10, but
excluding the obligation to pay Rent.
8.1.2 Playground Equipment: The Equipment that currently exists on the
Property shall only be removed at the time in which City purchases new Equipment and
the new Equipment is installed by Tenant at a location on the Property that is mutually
agreeable to the Parties. Tenant shall be responsible for the removal and disposal of
the currently existing Equipment and installation of the new replacement Equipment
purchased by the City.
8.2 Tenant's Architects and Contractors. All improvements and landscaping
on the Property and any subsequent repairs, alterations, additions or improvements to
any of the foregoing shall be designed, selected or constructed, as applicable, by
qualified and licensed (where required) architectural, design, engineering and
construction firms selected by Tenant.
8.3 Costs of Construction. Tenant shall bear all costs and expenses
associated with the design, use, construction, and maintenance of the Property and
Tenant Improvements (except for any costs and expenses incurred as a result of any
negligence or willful misconduct by City or any of its officers, agents, contractors, or
employees), which costs and expenses include without limitation: (i) relocation of
existing City facilities (e.g., driveways, points of access, etc.), utility relocation, hook-up,
and connection fees and all distribution facilities, conduits, pipelines and cables legally
required in connection with the Property and Tenant Improvements; (ii) all design,
engineering, financing and construction costs; and (iii) all necessary studies and
appraisals, use permits or variances, and all grading, building and like permits required
to construct and operate the Property and Tenant Improvements, including any fees
assessed on the Property by any governmental, or quasi -governmental agency or
authority in connection with any regional transportation or other public improvements
Pacifica Christian High School - Orange County Page 11
21-15
and school district taxes, development fees and assessments.
Notwithstanding the above payment obligations of Tenant, City and Tenant shall
equally share the cost of waterproofing the basement in the existing building on the
Property. The City's share of the costs for waterproofing the basement shall be capped
at Fifteen Thousand Dollars and No Cents ($15,000).
8.4 Permits. Unless restricted by law, Tenant shall obtain, and be responsible
for the costs for all building permits and other required permits necessary for the
Property. If applicable, Tenant shall be responsible, at its sole cost and expense, for
compliance with the California Environmental Quality Act ("CEQA") in connection with
Tenant's operation and use of the Property.
8.5 Quality of Work Performed. All construction, maintenance and other work
shall be performed in a good and workmanlike manner, shall comply with the plans and
specifications submitted to City, and shall comply with all applicable governmental
permit requirements and Laws in force at the time permits are issued.
8.6 Payment of Costs. Tenant shall pay all costs related to the construction of
the Tenant Improvments and any alterations and/or improvements by Tenant or its
agents, except for any costs incurred as a result of any negligence or willful misconduct
by City or any of its officers, agents, contractors, or employees.
8.7 Liens Prohibited: Tenant shall not permit to be imposed, recorded or
enforced against the Property, any portion thereof or any structure or improvement
thereon, any mechanics, materialmen's, contractors or other liens arising from, or any
claims for damages growing out of, any work or repair, construction or alteration of
improvements on the Property.
8.7.1 Release/Removal of Liens: In the event any lien or stop notice is
imposed or recorded on the Property, or an improvement permanently affixed to the
Property, during the Term, Tenant shall pay or cause to be paid all such liens, claims or
demands before any action is brought to enforce the same against the Property or the
improvement. Notwithstanding the foregoing, if Tenant legitimately contests the validity
of such lien, claim or demand, then Tenant shall, at its expense, defend against such
lien, claim or demand provided that it provide City the indemnity in this Agreement and
provided Tenant shall pay and satisfy any adverse judgment that may be rendered
before any enforcement against City or the Property.
8.8 Disposition of Alterations at Expiration or Agreement Termination. Any
alterations made to the Property shall remain on, and be surrendered with, the Property
on expiration or termination of this Agreement (excluding Tenant's moveable personal
property). Prior to expiration or within thirty (30) calendar days after termination of this
Agreement, Tenant may remove any moveable machinery, equipment, and other
personal property installed by Tenant, provided that Tenant repairs any damage to the
Property caused by removal and restore the Property to good condition.
Pacifica Christian High School - Orange County Page 12
21-16
9. MAINTENANCE OF THE PROPERTY
9.1 Maintenance and Repair by Tenant and City. Tenant shall be responsible
for maintenance of the Property, including routine janitorial and housekeeping costs.
Tenant agrees that it will keep the Property in good condition, free of trash and debris,
with reasonable wear and tear and damage by casualty and condemnation excepted.
Tenant may enter upon areas of the Property still used by the City, as defined in Section
5.3, in order to conduct routine maintenance and repair upon portions of the facility
which may be shared between City and Tenant, including all utilities, roof, etc. City may
perform maintenance or repairs in the event Tenant fails to commence any
maintenance or repairs required to keep the Property in the condition described in this
Agreement within the time provided by City in the written notice requesting such
maintenance or repair (which shall not be less than thirty (30) calendar days after the
date of such notice). The cost of any maintenance or repairs performed by the City
pursuant to this Section shall be payable as additional rent. City may perform required
cleaning and charge the costs to Tenant if the Tenant fails to perform said cleaning
within the time provided by City in the written notice requesting the cleaning (which shall
not be less than ten (10) calendar days after the date of such notice) and if City
performs such cleaning on Tenant's behalf more than two (2) times during the Term,
City may take over such obligation by providing written notice thereof to Tenant and
thereafter City shall continue to maintain the Property as required by this Agreement.
Notwithstanding the foregoing, City shall be responsible, and shall promptly reimburse
Tenant, for any costs incurred by Tenant to comply with this Section 9.1, which costs
would not have been incurred but for City's shared use of the Property pursuant to
Section 5.3.
9.2 Entry by City. City and its authorized City representative(s) may, upon
one (1) business day prior notice to Tenant (except no prior notice shall be required in
the event of an emergency, emergency maintenance, or emergency repair to facilities),
enter upon and inspect the Property during normal business hours for any lawful
purpose, provided that City shall use commercially reasonable efforts to not interfere
with Tenant's operation and/or use of the Property in performing any such entry and/or
inspection. In case of emergency, City or its authorized City representative(s) may
enter the Property by whatever force reasonably necessary if Tenant is not present to
open and permit an entry. Any entry to the Property by City under this Agreement shall
not be construed as a forcible or unlawful entry into, or a detainer of, the Property, or an
eviction of Tenant from the Property or any portion thereof. Any damage caused to the
Property pursuant to this Section by the City shall be repaired or replaced by the City at
the City's sole expense.
10. INDEMNITY AND EXCULPATION; INSURANCE
10.1 Hold -Harmless Clause. Tenant agrees to indemnify, defend and hold
harmless the City, its City Council, Boards, Commissions, Committees, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties') from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
Pacifica Christian High School - Orange County Page 13
21-17
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a "Claim;" collectively, "Claims"), which may arise from or in any manner
relate (directly or indirectly) to Tenant's, Tenant's employees, contractor, subcontractor,
agents, guests, invitees, occupation or use of the Property, specifically including,
without limitation, any claim, liability, loss or damage arising by reason of:
(a) The death or injury of any Person or damage to personal property
caused or allegedly caused by the condition of the Property or an act or omission of
Tenant or an agent, contractor, subcontractor, supplier, employee, or servant Tenant;
(b) Any work performed on the Property or materials furnished to the
Property at the request of Tenant or any agent or employee of Tenant, with the
exception of maintenance performed by City; and/or
(c) Tenant's failure to perform any provision of this Agreement or to
comply with any requirement of Law or any requirement imposed on the Property by
any duly authorized governmental agency or political subdivision.
Tenant's obligations pursuant to this Subsection shall not extend to any Claim
proximately caused by the negligence, willful misconduct, or unlawful or fraudulent
conduct on the part of the Indemnified Parties. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable.
10.2 Exculpation of City. Except as otherwise expressly provided in this
Agreement, City shall not be liable to Tenant for any damage to Tenant or Tenant's
property from any cause other than the negligence, intentional or willful acts of the
Indemnified Parties. Except as otherwise expressly provided in this Agreement, Tenant
waives all claims against the Indemnified Parties arising for any reason other than the
negligence, intentional or willful acts of the Indemnified Parties. City shall not be liable
to Tenant for any damage to the Property, Tenant's property, Tenant's goodwill, or
Tenant's business income, caused in whole or in part by acts of nature.
10.3 Insurance. Tenant shall maintain insurance in the types and amounts
specified in Exhibit "D," attached hereto and incorporated herein by this reference.
11. DAMAGE OR DESTRUCTION OF PROPERTY; CONDEMNATION
11.1 Destruction of the Property. If the Property is totally or partially destroyed,
rendering the Property or any portion thereof totally or partially inaccessible or
unusable, Tenant shall restore the Property to substantially the same condition as
immediately prior to such destruction (including all trade fixtures, personal property,
improvements and alterations as are installed by Tenant, which shall be replaced by
Tenant at its expense), provided that, if such destruction occurs prior to the Shared Use
Termination Date, City shall be responsible for its pro rata share of any restoration costs
tp materials, equipment, etc., required exclusively for City's use of the Property, based
on the extent of its then -current shared use rights pursuant to Section 5.3 above.
Pacifica Christian High School - Orange County Page 14
21-18
Alternatively, Tenant may elect to terminate this Agreement by giving notice of such
election to City within sixty (60) calendar days after the date of the occurrence of any
casualty if the cost of the restoration exceeds the amount of any available insurance
proceeds, if the damage has been caused by an uninsured casualty or event, or if
Tenant reasonably estimates that repairs of the Property will take more than six (6)
months. Upon such termination, any insurance proceeds applicable to reconstruction of
the Property (excluding Tenant's personal property therein) then received by Tenant
shall be paid to City and Tenant shall have no further liability or obligations under this
Agreement.
11.2 Destruction of Property. In the event that all or a portion of the Property is
damaged, and the Property or a material portion becomes inaccessible or commercially
unusable, and the damage or destruction cannot reasonably be repaired within twelve
(12) months after the date of the casualty, City shall have the right to either:
(a) Terminate this Agreement by giving to Tenant written notice (which
notice shall be given, if at all, within thirty (30) calendar days following the date of the
casualty), in which case this Agreement shall be terminated thirty (30) calendar days
following the date of the casualty; or
(b) Give Tenant written notice of City's intention to repair such damage
as soon as reasonably possible at City's expense, in which event this Agreement shall
continue in full force and effect; however, Rent shall be abated in accordance with the
procedures set forth in Section 12. Tenant may terminate this Agreement by giving City
written notice at any time prior to the commencement of repairs if City agrees to repair
the Property pursuant to this Section and fails to commence repairs within one hundred
twenty (120) calendar days after giving Tenant written notice of its intention to repair. In
such event, this Agreement shall terminate as of the date of notice from Tenant to City,
and City shall have no liability under this Agreement.
11.3 Condemnation. If the use or possession of the entire Property or any
material portion thereof shall be taken in condemnation proceedings, then Tenant may
elect to terminate this Agreement by giving written notice of such election to City within
sixty (60) calendar days after the date of such taking. If only a non -material portion of
the Property shall be taken in condemnation proceedings, then this Agreement shall
continue in full force and effect; however, Rent shall be proportionally abated in
accordance with the procedures set forth in Section 12.
12. ABATEMENT OF RENT
General Rule. In the event of damage or destruction of the Property (or any
portion thereof), or condemnation of the Property (or any portion thereof), and this
Agreement is not terminated, Tenant may continue to utilize the Property for the
operation of the high school to the extent it may be practicable and commercially
reasonable, as determined in Tenant's reasonable judgment. Rent shall abate only in
proportion to the area of the Property that is rendered unusable (as determined in
Tenant's reasonable judgment). The abatement of Rent shall commence on the date
Pacifica Christian High School - Orange County Page 15
21-19
that use of the Property is impacted and continue until the completion of those repairs
necessary to restore full use of the Property, if any, and Tenant's re -opening of the
Property. Tenant's obligation to pay Taxes pursuant to this Agreement shall not be
abated or reduced. Rent shall not abate if the damage or destruction to the Property is
the result of the negligence or willful conduct of Tenant or its employees, officers or
agents.
13. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING, AND
ENCUMBERING
Prohibition of Assignment. City and Tenant acknowledge that City is entering
into this Agreement in reliance upon the experience and abilities of Tenant and
Consequently, Tenant shall not sublease or encumber its interest in this Agreement or
in the Property, or assign substantially all or any part of the Property, or allow any other
person or entity to occupy or use all or any part of the Property other than for the uses
permitted under this Agreement and with the City's prior written consent.
Notwithstanding the foregoing or anything else to the contrary in this Agreement, but in
all events subject to City's shared use rights as provided herein prior to the Shared Use
Termination Date, Tenant may, without City's consent, permit third parties to use the
Property on a periodic and/or temporary basis for uses that are reasonably compatibale
with and/or incidental to the operation of a high school (such as, by way of example but
not limitation, use of the gymnasium by other schools and/or recreational leagues and
use of portions of the Property by community and/or religious organizations for meetings
and gatherings). Except as expressly provided in the immediately preceding sentence,
any assignment, sublease or transfer made without the City's written consent is null and
void, which consent shall not be unreasonably withheld.
14. DEFAULT; REMEDIES
14.1 Default by Tenant. The occurrence of any one (1) or more of the following
events shall constitute a default and material breach of this Agreement by Tenant:
(a) The vacating or abandonment of the Property by Tenant for a
period of more than one hundred eighty (180) successive calendar days during which
time Tenant shall be required to pay Rent and fulfill all other obligations under this
Agreement, without the prior permission of the City Manager or his/her designee,
excluding closures during periods of casualty, condemnation or permitted closures set
forth in this Agreement or during periods when the Property is temporarily closed for
routine breaks (e.g., Christmas break, spring break, summer break, etc.);
(b) The failure by Tenant to make any payment of Rent or any other
payment required by this Agreement, as and when due, when such failure shall
continue for a period of ten (10) calendar days after written notice of default from City to
Tenant;
(c) Except as specified in Subsection 14.1(b), the failure of Tenant to
observe or perform any of the material covenants, conditions or provisions of this
Pacifica Christian High School - Orange County Page 16
21-20
Agreement to be observed or performed by Tenant where such failure shall continue for
a period of thirty (30) calendar days after written notice thereof from City to Tenant;
provided, however, that if the nature of Tenant's default is such that more than thirty
(30) calendar days are reasonably required for its cure, then Tenant shall not be
deemed to be in default if Tenant commences such cure within said thirty (30) calendar
day period and thereafter diligently prosecutes such cure to completion;
(d) The making by Tenant of any general arrangement or assignment
for the benefit of creditors;
(e) Tenant becomes a "debtor" as defined in 11 U.S.C. Section 101 or
any successor statute thereto (unless, in the case of a petition filed against Tenant, the
same is dismissed within sixty (60) calendar days);
(f) The appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Property or of Tenant's interest in this
Agreement, where such appointment is not discharged within sixty (60) calendar days;
and
(g) The attachment, execution or the judicial seizure of substantially all
of Tenant's assets located at the Property or of Tenant's interest in this Agreement,
where such seizure is not discharged within sixty (60) calendar days.
14.2 Remedies for Default by Tenant
(a) Cumulative Nature of Remedies. If any default by Tenant shall
continue without cure beyond the time permitted under this Agreement, City shall have
the remedies described in this Section in addition to all other rights and remedies
provided by law or equity, to which City may resort cumulatively or in the alternative.
(1) Re-entry without Termination. City may re-enter the Property, and,
without terminating this Agreement, re -let all or a portion of the Property. City may
execute any agreements made under this provision in City's name and shall be entitled
to all rents from the use, operation, or occupancy of the Property. Tenant shall
nevertheless pay to City on the dates specified in this Agreement the equivalent of all
sums required of Tenant under this Agreement, plus City's reasonable expenses in
conjunction with re -letting, less the proceeds of any re -letting or atonement. No act by
or on behalf of City under this provision shall constitute a termination of this Agreement
unless City gives Tenant specific written notice of termination.
(2) City may terminate this Agreement by giving Tenant written notice
of termination with a specified termination date. In the event City terminates this
Agreement, City may recover possession of the Property (which Tenant shall surrender
and vacate upon demand in the condition required under this Agreement) and remove
all persons and property. City shall be entitled to recover the following as damages:
(A) The value of any unpaid rent or other charges that are unpaid at the
time of termination (which value shall be computed by allowing interest at the rate of ten
Pacifica Christian High School - Orange County Page 17
21-21
percent (10%) per annum). All Rent and other charges shall begin to accrue late
charges from the date due or the date they would have accrued;
(B) The value of the Rent and other charges that would have accrued
after termination less the amount of Rent and charges the City received or could have
received through the exercise of reasonable diligence as of the date of the termination
(which value shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of termination plus one percent
(1 %));
(C) Any other amount necessary to reasonably compensate City for the
detriment proximately caused by Tenant's failure to perform its obligations under this
Agreement; and
(D) At City's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time -to -time by applicable California law. City shall
be entitled to an award of the reasonable costs and expenses incurred by City in
maintaining or preserving the Property after default (after the expiration of all notice and
cure periods), preparing the Property for re -letting, or repairing any damage caused by
an act or omission of Tenant.
(b) City's Right to Cure Tenant's Default. Upon continuance of any
material default beyond applicable notice and cure periods, City may, but is not
obligated to, cure the default at Tenant's cost. If City pays any money or performs any
act required of, but not paid or performed by, Tenant after such applicable notice and
cure periods, the payment and/or the reasonable cost of performance shall be due as
additional Rent not later than ten (10) calendar days after service of a written demand
accompanied by supporting documentation upon Tenant. No such payment or act shall
constitute a waiver of default or of any remedy for default or render City liable for any
loss or damage resulting from performance, provided that Tenant shall no longer be in
default to the extent the default is actually cured by City, once reimbursement is made
to City.
15. WASTE OR NUISANCE
Tenant shall not commit or permit the commission of any waste on the Property.
Tenant shall not maintain, commit, or permit any nuisance as defined in Section 3479 of
the California Civil Code on the Property. Tenant shall not use or permit the use of the
Property for any unlawful purpose.
16. NO CONFLICTS OF USE, HAZARDOUS MATERIALS.
From the Effective Date and throughout the Term, Tenant shall not use, occupy
or permit any portion of the Property to be used or occupied in violation of any Law.
City represents and warrants that, to the best of City's knowledge: (i) Tenant's use of
the Property does not conflict with applicable Laws, and City knows of no reason why
Tenant would be unable to obtain all required permits, licenses and approvals from the
appropriate governmental authorities; and (ii) the Property is not in violation of any
Pacifica Christian High School - Orange County Page 18
21-22
applicable Law, rules or regulations and Tenant's contemplated uses will not cause any
such violation. Provided Tenant did not bring, cause or allow such Hazardous Materials
on the Property, Tenant shall have the right (but not the obligation) to terminate this
Agreement, upon thirty (30) calendar days advance written notice to City in the event
that Hazardous Materials are detected at the Property and the presence or the
remediation (without any obligation of Tenant to perform remediation) materially affects
Tenant's ability to operate the high school at the Property. "Hazardous Materials" shall
mean any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials
or waste, or other hazardous, toxic, contaminated or polluting materials, substances or
wastes, including, without limitation, any "hazardous substances," "hazardous wastes,"
"hazardous materials" or "toxic substances" under applicable federal, state and local
laws, ordinances and regulations.
17. CITY'S DEFAULTSITENANT'S REMEDIES.
City shall be in default if it fails to perform, or commence performance if the
obligation requires more than ten (10) calendar days to complete, any material
obligation within ten (10) calendar days after receipt of written notice by Tenant to City
specifying the nature of such default. City shall also be in default if it commences
performance within ten (10) calendar days but fails to diligently complete performance.
In the event of City's default, Tenant may:
(a) Upon thirty (30) calendar days written notice to City, cure any such
default, and City shall reimburse Tenant the amount of all reasonable costs and
expenses incurred by Tenant in curing the default; or
(b) Terminate this Agreement if City's default materially interferes with
Tenant's use of the Property for its intended purpose and City fails to cure such default
within thirty (30) calendar days after a second written demand by Tenant.
18. EVENT OF BANKRUPTCY
18.1 If this Agreement is assigned to any Person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq., or any similar or
successor statute ("Bankruptcy Code"), to the extent permitted by the Bankruptcy Code
and applicable Laws, any and all monies or other consideration payable or otherwise to
be delivered in connection with such assignment shall be paid or delivered to City, shall
be and remain the exclusive property of City and shall not constitute property of Tenant
or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other consideration constituting City's property under this Section not paid or
delivered to City shall be held in trust for the benefit of City and be promptly paid or
delivered to City.
18.2 To the extent permitted by the Bankruptcy Code and applicable Laws, any
Person or entity to which this Agreement is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed without further act or deed to have assumed all of
the obligations arising under this Agreement on and after the date of such assignment,
Pacifica Christian High School - Orange County Page 19
21-23
including the obligation to operate the Property, pursuant to Section 5.1.
19. NOTICES
Any notice, demand, request, consent, approval or communication that either
Party desires or is required to give shall be in writing and shall be deemed given three
(3) calendar days after deposit into the United States registered mail, postage prepaid,
by registered or certified mail, return receipt requested, or one (1) business day after
deposit with a reputable overnight courier for overnight delivery. Unless notice of a
different address has been given in accordance with this Section, all notices shall be
addressed as follows:
If to City, to: City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
If to Tenant, to: Pacifica Christian High School -Orange County
Attn: David O'Neil
883 West 15th Street
Newport Beach, CA 92663
With a copy to: Pacifica Christian High School -Orange County
Attn: Keith Carlson
2424 SE Bristol Street, Suite 300
Newport Beach, CA 92660
And with a copy to: Garrett DeFrenza Stiepel Ryder LLP
Attn: Michael Hill
3200 Bristol Street, Suite 850
Costa Mesa, CA 92626
20. SURRENDER OF PROPERTY
At the expiration or earlier termination of this Agreement, Tenant shall surrender
to City the possession of the Property. Tenant shall leave the Property in good and
broom -clean condition, reasonable wear and tear and damage by casualty and
condemnation excepted. All property that Tenant is not required to surrender, but that
Tenant does abandon for more than thirty (30) calendar days after the expiration or
termination of this Agreement, shall, at City's election, become City's property at
expiration or termination. City shall owe no compensation to Tenant for any personal
property, equipment or fixtures left at the Property by Tenant more than thirty (30)
calendar days after the expiration or termination of this Agreement.
Pacifica Christian High School - Orange County Page 20
21-24
21. COMPLIANCE WITH ALL LAWS
Tenant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted. In addition, all work
prepared by Tenant shall conform to applicable City, county, state and federal laws,
rules, regulations and permit requirements and be subject to approval of the City
Manager or his/her designee.
22. WAIVERS
The waiver by either Party of any breach or violation of any term, covenant or
condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed
to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of
any subsequent breach or violation of the same or other term, covenant, condition,
ordinance, law or regulation. The subsequent acceptance by either Party of any fee,
performance, or other consideration which may become due or owing under this
Agreement, shall not be deemed to be a waiver of any preceding breach or violation by
the other Party of any term, condition, covenant of this Agreement or any applicable
law, ordinance or regulation.
23. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
24. CONFLICT
In case of conflict, the more specific provision of this Agreement shall control
25. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California. Any action brought relating to this Agreement shall be adjudicated in a court
of competent jurisdiction in the County of Orange.
26. ENTIRE AGREEMENT; AMENDMENTS
26.1 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.
26.2 This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Tenant and City.
26.3 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
Pacifica Christian High School - Orange County Page 21
21-25
amendment to this Agreement.
26.4 The terms and conditions of this Agreement shall not be altered or modified
except by a written amendment to this Agreement signed by Tenant and the City
Manager or his/her designee, and approved as to form by the City Attorney.
26.5 If any conflicts arise between the terms and conditions of this Agreement,
and the terms and conditions of the attached exhibits or thedocuments expressly
incorporated by reference, the terms and conditions of this Agreement shall control.
26.6 Any obligation of the Parties relating to monies owed, as well as those
provisions relating to limitations on liability and actions, shall survive termination or
expiration of this Agreement.
26.7 The Recitals provided in this Agreement are true and correct and are
incorporated into the substantive part of this Agreement.
26.8 Each party has relied on its own inspection of the Property and examination
of this Agreement, the counsel of its own advisors, and the warranties, representations,
and covenants in this Agreement. The failure or refusal of either Party to inspect the
Property, to read this Agreement or other documents, or to obtain legal or other advice
relevant to this transaction constitutes a waiver of any objection, contention, or claim
that might have been based on such reading, inspection, or advice.
26.9 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of such counterparts shall constitute
one Agreement.
27. TIME IS OF THE ESSENCE
Time is of the essence for this Agreement.
28. SUCCESSORS; BINDING EFFECT
Subject to the provisions of this Agreement on assignment and subletting, each
and all of the covenants and conditions of this Agreement shall be binding on and shall
inure to the benefit of the heirs, successors, executors, administrators, assigns, and
personal representatives of the respective Parties.
29. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either Party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise
apply.
Pacifica Christian High School - Orange County Page 22
21-26
30. TABLE OF CONTENTS; HEADINGS
The table of contents of this Agreement and the captions of the various sections
of this Agreement are for convenience and ease of reference only and do not define,
limit, augment, or describe the scope, content, or intent of this Agreement.
31. GENDER; NUMBER
The neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the neuter, and each includes
corporation, partnership, or other legal entity whenever the context requires. The
singular number includes the plural whenever the context so requires.
32. EXHIBITS
All exhibits to which reference is made in this Agreement are incorporated by
reference. Any reference to "this Agreement" includes matters incorporated by
reference.
33. CITY BUSINESS LICENSE
Tenant shall obtain and maintain during the duration of this Agreement, a City
business license as required by the Newport Beach Municipal Code.
34. ATTORNEYS' 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, shall not be
entitled to recover its attorneys' fees.
35. NONDISCRIMINATION
Tenant, for itself and its successors, agrees that in the performance under this
Agreement, Tenant shall not discriminate against any person because of the marital
status or ancestry of that person or any characteristic listed or defined in Section 11135
of the Government Code.
36. MEMORANDUM OF LEASE AGREEMENT
A Memorandum of Lease Agreement, in a form and content similar to that
contained in Exhibit "E," attached hereto and incorporated by this reference, shall be
recorded by the Parties promptly upon execution of this Agreement. Upon execution by
both Parties, the Memorandum of Lease Agreement shall be recorded against the
Property in the office of the Orange County Clerk -Recorder, as required by Government
Code Section 37393.
Pacifica Christian High School - Orange County Page 23
21-27
37. NO THIRD PARTY BENEFICIARIES
City (both as a lessor and as the City of Newport Beach) and Tenant do not
intend, by any provision of this Agreement, to create in any third party, any benefit or
right owed by one Party, under the terms and conditions of this Agreement, to the other
Party.
38. CALIFORNIA LABOR LAWS
It shall be the obligation of Tenant to comply with all Laws, including, but not
limited to, State of California labor laws, rules and regulations and the Parties agree that
the City shall not be liable for any violation by Tenant (or Tenant's agent, sublesse or
any party affiliated with Tenant) thereof.
39. NO DAMAGES
Tenant acknowledges that City would not enter into this Agreement if it were to
be liable for damages (including, but not limited to, actual damages, economic
damages, consequential damages, lost profits, loss of rents or other revenues, loss of
business opportunity, loss of goodwill or loss of use) under, or relating to, this
Agreement or any of the matters referred to in this Agreement, including, without
limitation, any and all plans, permits, licenses or regulatory approvals, and CEQA
documents related to the Property. Accordingly, Tenant covenants and agrees on
behalf of itself and its successors and assigns, not to sue City (either in its capacity as
lessor in this Agreement or in its capacity as the City of Newport Beach) for damages
(including, but not limited to, actual damages, economic damages, consequential
damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss
of goodwill or loss of use) or monetary relief for any breach of this Agreement by City or
for any dispute, controversy, or issue between City and Tenant arising out of or
connected with this Agreement or any of the matters referred to in this Agreement,
including, without limitation, any and all plans, permits, licenses or regulatory approvals,
CEQA documents, or any future amendments or enactments thereto, the Parties
agreeing that declaratory relief, injunctive relief, mandate and specific performance shall
be Tenant's sole and exclusive judicial remedies. Notwithstanding the foregoing,
nothing in this Section 39 shall limit Tenant's remedies as expressly set forth in this
Agreement.
40. QUIET ENJOYMENT
So long as Tenant pays Rent and complies with its obligations under this
Agreement, Tenant shall peaceably and quietly enjoy the Property throughout the Term
without hindrance by Landlord or any person lawfully claiming through or under
Landlord, subject to the provisions of this Agreement.
Pacifica Christian High School - Orange County Page 24
fl6IQ
41. GOVERNMENT CLAIMS ACT
Tenant and City agree that in addition to any claims filing or notice requirements
in this Agreement, Tenant shall file any claim that Tenant may have against City in strict
conformance with the Government Claims Act (Government Code sections 900 et seq.),
or any successor statute.
[Signature page follows]
Pacifica Christian High School - Orange County Page 25
21-29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates written below.
APPROVED AS TO FORM:
THE CITY ATTORNEY'S OFFICE
Date:
By:
�J 6:r
Aaron C. Harp chm,%Islm
City Attorney
ATTEST:
Date:
Bv:
Leilani I. Brown
City Clerk
CITY
The City of Newport Beach,
a California municipal corporation
Date:
By:
Rush N. Hill, II
Mayor
TENANT
Pacifica Christian High School -Orange
County,
a California non-profit corporation
Date
By:
Keith Carlson
President
Date:
By:
David Bahnsen
Vice President/Treasurer
[End of Signatures]
Attachments: Exhibit A: Property Depiction & Equipment
Exhibit B: City Schedule
Exhibit C: [Tenant Improvements]
Exhibit D: Insurance Requirements
Exhibit E: Memorandum of Lease Agreement
Pacifica Christian High School - Orange County Page 26
PJEC181
SEP -02-2014 1706 MORGANSTANLEY 949 640 6124 P.01i01
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates written below.
APPROVED AS TO FORM:
THE CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY
The City of Newport Beach,
a California municipal corporation
Date:
By:
Rush N. Hill, II
Mayor
TENANT
Pacifica Christian High School -Orange
County,
a California n n -%profit corporation
Dater/ ±1
By: /lug l ✓a adz
Keith Carlson
President
Date:
David Bahnsen
Vice President/Treasurer
[End of Signatures]
Attachments: Exhibit A: Property Depiction & Equipment
Exhibit B: City Schedule
Exhibit C: [Tenant Improvements]
Exhibit D: Insurance Requirements
Exhibit E: Memorandum of Lease Agreement
Pacifica Christian High School - Orange County
Page 26
TOTAL P.9_31
EXHIBIT "A"
Property Depiction
Pacifica Christian High School - Orange County Page A-1
21-32
EXHIBIT "A"
Property Depiction
9wr J el 1
PARCEL
MAP NQ 88-285
CITY OF NEWPORT
BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA
PC9N 9.HMENS B e550C.JNC.
weiu e. xanbrra -�-��
'R.in � ,.C)Iq
r {!so•• I4TnuT
MVua.t
•M I�!' I' dii
`oa MN6L`v
i lal
2
aw. va �., yli.: 2T i
£p
iiFiKs"uTMiFf".,'�.LS tc yi
lfi
I TRACT 10f,,49 M.M,
<_ MPA.
MONUMENT NOTrh
amii Or mtkma%
m
J
J
Pacifica Christian High School - Orange County Page A-2
21-33
EXHIBIT "A"
Property Depiction
Pacifica Christian High School - Orange County Page A-3
NECE
Li
EXHIBIT "B"
City Use of Property Schedule
Pacifica Christian High School - Orange County Page B-1
21-37
City Use of Premises
School Year Programming:
Room 4
Room Gymnasium
DaySJaOh�€ua
9-10:30am — City
N/A
Monday
?�
3 -Spm Carden Hall
6:30-7:30pm — City
6-11pm—City
Tuesday";I
6-11pm—City
6-7:30pm — City
N/A
9-11am —City
11am-12pm — City
Wednesday
a
;u„ � �
3-Spm—Carden)-)all
N/A
x
6-11pm—City
Thursday;
k
3-5pm—Carden Hall
6,'
6-11pm — City
Friday
a
i
17-11pm — City
Saturday
;' Ur;
8am-6pm—Newport
Junior Basketball
6pm-11pm—City
Sunday
':.
8am-6pm — Newport
Junior Basketball
6pm-11pm—City
TotalHours
wt
55/week
Spring
Break Programming:
Room Gymnasium
Day
Daily, April
N/A
7 -April 11
k {'
Total Hours
lei 0
Room 2
Room 4
8a3n,$
N/A
9-10:30am — City
N/A
9-10:30am - City
3:30-4:30pm — City
6:30-7:30pm — City
9:30-11:30am — City
9-10:30am — City
10:30am-12pm — City
6-7:30pm — City
N/A
9-11am —City
11am-12pm — City
6-8pm — City
3-6pm — City
N/A
N/A
N/A
N/A N/A
5/week 14.5/week
Room 2 Room 4
1
9:30am-12:30pm—City N/A
15 0
21-38
Summer B"real< Progrirriming:
Room Gymnasium Room 2 Room 4
Day r x nj:' vp_ �1k , SI' 1 �r� as
Daily, Junep N/A N/A 130pm-4:30pm—
'F f .
23 -June 27 l City
Daily, July 7- � : 9am-12pm — City N/A N/A
July 11
Daily, July 14- ' N/A N/A NIA
July 18 „'..
Daily, July 21- � 9 N/A N/A N/A
V.
July 25 l of
<s�
Daily, August i `;,.� 9am-12pm—City 10am-12pm—City N/A
h
4 -August 8 u�,�p�� apt
Daily, August ' 9am-12pn—City N/A N/A
11 -August l5 i"��d
Daily, August tW N/A N/A 10am-12pm—City
18 -August 22 a;
Total Hours 1 4510 25
Room TBD*
M_M
r,�,.Y'V.; WY YGFR
9am-12pm City
9am-12prn — City
9am-12pm—City
9am-12pm — City
1pm-41)m —City
N/A
N/A
9@M-12pm — City
fpm-4pm — City
105
*Room TBD - room to be designated at Tenant's discretion, but must have tables/chairs and
accommodate occupancy of 25 people.
21-39
Exhibit "C"
Tenant Improvements
Pacifica Christian High School - Orange County
Page C-1
21-40
RESOLUTION NO. ZA2014-031
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT
NO. UP2014-008 FOR PACIFICA CHRISTIAN HIGH SCHOOL
LOCATED AT 883 WEST 15TH STREET (PA2014-045)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Pacifica Christian High School, with respect to property
located at 883 West 15th Street, and legally described as Parcel 2 of Parcel Map 88-285
requesting approval of a Minor Use Permit.
2. The applicant proposes to operate a private high school for grades 9 through 12 at the
West Newport Community Center.
3. The subject property is located within the Public Facilities (PF) Zoning District and the
General Plan Land Use Element category is Public Facilities (PF).
4. The subject property is not located within the coastal zone.
5. A public hearing was held on August 14, 2014, in the Corona del Mar Conference Room
(Bay E-1 st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and
purpose of the meeting was given in accordance with the Newport Beach Municipal
Code. Evidence, both written and oral, was presented to, and considered by, the
Zoning Administrator at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This project has been determined to be categorically exempt pursuant to Title 14 of the
California Code of Regulations (Section 15301, Article 19 of Chapter 3, Guidelines for
Implementation of the California Environmental Quality Act) under Class 1 (Existing
Facilities). Class 1 exempts the operation, repair, maintenance, permitting, leasing,
licensing, or minor alteration of existing public or private structures, facilities,
mechanical equipment, or topographical features, involving negligible or no expansion
of use beyond that existing at the time of the lead agency's determination. The use of
the high school will be similar to the existing instructional programs that are currently
being provided by the City at this facility. The operational characteristics of the
proposed school, including classroom occupancy, hours of operation, parking needs,
and traffic demand are similar to the existing City's classes. Parking will be provided
on-site and the implementation of a parking management plan and school busing
program will mitigate any traffic impact to the area.
2. The Zoning Administrator finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. In
21-41
Zoning Administrator Resolution No. ZA2014-031
Page 2 of 9
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages
which may be awarded to a successful challenger.
SECTION 3. REQUIRED FINDINGS.
Minor Use Permit
In accordance with Section 20.52.020.F of the Newport Beach Municipal Code, the following
findings and facts in support of such findings are set forth:
Finding:
A. The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding:
The property is designated PF by the General Plan. It allows for public schools,
cultural institutions, government facilities, community centers, public hospitals, and
public facilities. The use of the high school will be similar to the existing instructional
programs and classes that are currently being provided by the City at this facility and
thereby consistent with the General Plan Land Use designation.
Finding:
B. The use is allowed within the applicable zoning district and complies with all other applicable
provisions of this Zoning Code and the Municipal Code.
Facts in Support of Finding:
A private school is permitted in the Public Facility (PF) Zoning District with the
approval of a Minor Use Permit per Section 20.26.020 (Special Purpose Zoning
Districts Land Uses and Permit Requirements).
Finding:
C. The design, location, size, and operating characteristics of the use are compatible with the
allowed uses in the vicinity.
Facts in Support of Finding:
The high school use is similar to that of the existing community center, with
instructional classes, administrative offices and a gymnasium. Additionally, the
operating characteristics of the use are compatible with existing educational
institutions and residential uses in the immediate area.
05.20-2014
21-42
Zoning Administrator Resolution No. ZA2014-031
Page 3 of 9
2. The subject property has a total of forty (40) parking spaces. Pacifica will be obligated
to provide twenty-five (25) parking spaces to be used by the City for community
programs during the first two (2) years of school operation and the school will have
exclusive use of fifteen (15) parking spaces. Alternative options are placed in the event
that the City will continue the programs and activities beyond Year 2 to ensure there
would be adequate on-site parking provided.
A parking management plan has been prepared to ensure that adequate parking will
be provided for the City's programs and proposed school use. It contains the following
stipulations:
a. Designation of twenty-five (25) spaces for City programs during first two (2)
years of school operation and alternative options should City programs will
continue beyond Year 2
b. Implementation of transportation demand program to reduce number of vehicle
trips generated (i.e. carpooling, school busing, bicycling)
C. Implementation of drop-off, pick-up and queuing plan
d. Implementation of on-site parking policy for students
e. Implementation of on -street parking policy including enforcement and oversight
4. The proposed parking management plan has been reviewed and approved by the City
traffic engineer. A list of conditions has been included in the draft resolution to ensure
that Pacifica will be operated in a functional manner and compatible with the existing
uses in the vicinity.
Finding:
D. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and medical)
access and public services and utilities.
Facts in Support of Finding:
With the implementation of a parking management plan, the high school will have
adequate parking for their staff members and students. All student pick-up and drop-
off will be done within the school's parking lot. Physical access for emergency vehicles
will be provided along the existing driveways within the subject property.
The City traffic engineer has reviewed the plan and is supportive of the proposed traffic
queuing arrangement of the school parking lot. With the proposed conditions of approval,
no conflicts in traffic circulation or queuing problems are anticipated and the current
locations and design of the driveways can accommodate the vehicle movements.
E Operation of the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to
the public convenience, health, interest, safety, or general welfare of persons residing or
working in the neighborhood of the proposed use.
05-20-2014
21-43
Zoning Administrator Resolution No. ZA2014-031
Paqe 4 of 9
Facts in Support of Finding:
The proposed high school has been reviewed and this approval includes conditions to
ensure that potential conflicts with the surrounding land uses are minimized to the
greatest extent possible. The operator is required to take reasonable steps to ensure the
operation of the high school will not create a nuisance to the surrounding uses.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Zoning Administrator of the City of Newport Beach hereby approves Minor Use
Permit No. UP2014-008, subject to the conditions set forth in Exhibit A, which is attached
hereto and incorporated by reference.
2. This action shall become final and effective fourteen (14) days following the date this
Resolution was adopted unless within such time an appeal is filed with the community
development director in accordance with the provisions of Title 20 Planning and
Zoning, of the Newport Beach Municipal Code.
PASSED, APPROVED AND ADOPTED THIS 14th DAY OF AUGUST, 2014.
, Zoning Administrator
05.20-2014
21-44
Zoning Administrator Resolution No. ZA2014-031
Page 5 of 9
EXHIBIT "A"
1K9701a]III 11:6P►6to] yd»:Z41%1I
(Project -specific conditions are in italics)
PLANNING
1. The development shall be in substantial conformance with the approved site plan and
floor plans stamped and dated with the date of this approval. (Except as modified by
applicable conditions of approval.)
2. Use Permit No. UP2014-008 shall expire unless exercised within twenty-four (24) months
from the date of approval as specified in Section 20.91.050 of the Newport Beach
Municipal Code, unless an extension is otherwise granted.
3. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
4. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Use
Permit.
5. This Use Permit may be modified or revoked by the City if: (i) the Conditions of
Approval are violated; (ii) it is determined that the proposed uses or conditions under
which the Use Permit is being operated or maintained is detrimental to the public
health, welfare or materially injurious to property or improvements in the vicinity; or (iii)
if the property is operated or maintained so as to constitute a public nuisance.
6. Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Use Permit or the processing
of a new use permit.
7. A copy of the Resolution, including conditions of approval (Exhibit "A") shall be
incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
8. Prior to the issuance of a building permit, the applicant shall pay any unpaid
administrative costs associated with the processing of this application to the Planning
Division.
9. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the director of
community development, and may require an amendment to this Use Permit.
10. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 and other applicable noise control requirements of the Newport Beach Municipal
05-20-2014
21-45
Zoning Administrator Resolution No. ZA2014-031
Pape 6 of 9
Code. The maximum noise shall be limited to no more than depicted below for the
specified time periods unless the ambient noise level is higher:
11. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three (3) walls and a self -latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes.
12. Storage outside of the building in the front of the property shall be prohibited, with the
exception of the required trash container enclosure.
13. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds (open house, back -to -school night, etc.), include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
14. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of the Pacifica Christian High School including, but not
limited to, Minor Use Permit No. UP2014-008. This indemnification shall include, but not
be limited to, damages awarded against the City, if any, costs of suit, attomeys' fees, and
other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by applicant, City, and/or the parties initiating or bringing
such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys'
fees, and damages which City incurs in enforcing the indemnification provisions set forth
in this condition. The applicant shall pay to the City upon demand any amount owed to
the City pursuant to the indemnification requirements prescribed in this condition.
15. Prior to issuance of building permitsthe lease agreement between Pacifica and the
City for the improvement and use of the property shall be executed.
16. Student enrollment shall be restricted as follows:
05-20-2014
21-46
Between the hours of 7:00 a.m.
and 10:00 p.m.
Between the hours of 10:00
p.m. and 7:00 a.m.
Location
Interior
Exterior
Interior
Exterior
Residential Property
45dBA
55dBA
40dBA
50dBA
Residential Property located within
100 feet of a commercial ro ert
45dBA
60dBA
45dBA
50dBA
Mixed -Use Property
45dBA
60dBA
45dBA
50dBA
Commercial Property
N/A
65dBA
NIA
60dBA
11. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three (3) walls and a self -latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes.
12. Storage outside of the building in the front of the property shall be prohibited, with the
exception of the required trash container enclosure.
13. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds (open house, back -to -school night, etc.), include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
14. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of the Pacifica Christian High School including, but not
limited to, Minor Use Permit No. UP2014-008. This indemnification shall include, but not
be limited to, damages awarded against the City, if any, costs of suit, attomeys' fees, and
other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by applicant, City, and/or the parties initiating or bringing
such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys'
fees, and damages which City incurs in enforcing the indemnification provisions set forth
in this condition. The applicant shall pay to the City upon demand any amount owed to
the City pursuant to the indemnification requirements prescribed in this condition.
15. Prior to issuance of building permitsthe lease agreement between Pacifica and the
City for the improvement and use of the property shall be executed.
16. Student enrollment shall be restricted as follows:
05-20-2014
21-46
Zoning Administrator Resolution No. ZA2014-031
Page 7of9
a. Year 1: No students
b. Year 2: Seventy-five (75) students maximum
c. Year 3: One hundred and twenty (120) students maximum
d. Year 4 and Beyond. One hundred twenty-five (125) students maximum
Year
Total
Students
Freshmen
Sophomore
Junior Senior
1
0
0
0
0 0
2
75
42
33
3
120
45
40
35
4
125
38
31
28 28
17. Administration/faculty shall be restricted as follows:
a. Years 1 through 3: Ten (10) persons
b. Year 4 and Beyond. Fifteen (15) persons
18. A minimum of one (1) parking space shall be provided for each administration/faculty
member (ten (10) spaces for Years 1 through 3 and fifteen (15) spaces for Year 4 and
beyond).
19. A total of forty (40) parking spaces shall be maintained within the subject property;
twenty -rive (25) of those spaces shall be allocated for the use of City programs and
activities during the first two (2) years of school operation while the school shall have
exclusive use of fifteen (15) parking spaces. After the second year, provided the City
discontinues all use and the school shall have exclusive use of the entire property and
all forty (40) parking spaces.
20. In the event that the City continues its programs and activities and require parking
spaces at the subject property beyond Year Z the applicant shall be required to
pursue one of the following alternatives:
a. Secure additional off-street parking. Any off-street parking arrangement shall
require the approval of a conditional use permit in accordance with Section
20.40. 100 (Off -Site Parking) of the Municipal Code;
b. Reduce the student enrollment and administration/faculty consistent with the
approved parking management plan; or
G. Obtain a parking waiver pursuant to Section 20.40.110 (Adjustment to Off -
Street Parking).
21. An adequate number of bicycle storage racks shall be provided at the school facility.
22. Pacifica shall be responsible for the control of noise generated by the subject facility.
The use of outside loudspeakers, a paging system or a sound system shall be
included within this requirement. The noise generated by the proposed use shall
comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code.
05-20-2014
21-47
Zoning Administrator Resolution No. ZA2014-031
Page 8 of 9
Upon evidence that noise generated by the project exceeds the noise standards
established by Chapter 10.26 of the Municipal Code, the community development
director may require that the applicant or successor retain a qualified engineer
specializing in noise/acoustics to monitor the sound generated by the use and to
develop a set of corrective measures necessary in order to ensure compliance.
23. All proposed signs shall be in conformance with the provisions of Chapter 20.42 (Sign
Standards) of the Newport Beach Municipal Code.
24. No outside paging system shall be utilized in conjunction with this establishment.
25. The student classroom hours during the school year (August to June) shall be from 7.30
a.m. to 3:00 p.m., Monday through Friday. Board/staff meetings, parent/teach
conferences, and student extra curriculum (sports, theater, etc.) are permitted before or
after classroom hours as long as adequate on-site parking is provided.
Office/administrative functions are permitted outside of the classroom hours and during
the summer months.
Fire Department Conditions
26. Every room with an occupant load of three hundred (300) or more shall have one (1) of
its exits or exit -access doorways lead directly into a separate means of egress system
that consists of no less than two (2) paths of exit travel which are separated by a
smoke barrier in accordance with Section 710 in such a manner to provide an
atmospheric separation that precludes contamination of both paths of exit travel by the
same fire. Not more than two (2) required exits or exit -access doorways shall enter
into the same means of egress system per California Building Code Section 442.1.2.
27. Fire Sprinklers shall be required as per California Fire Code Section 903.2., for the E
and A-3 occupancies.
28. A manual and automatic fire alarm system that initiates the occupant notification signal
utilizing an emergency voice/alarm communication system meeting the requirements
of Section 907.5.2.2 and installed in accordance with Section 907.6 shall be installed
in Group E occupancies (school) with an occupant load of fifty (50) or more persons or
containing more than one (1) classroom per California Fire Code Sec. 907.2.3.
29. A fire alarm system shall be required for the A occupancy (gym) as per California Fire
Code Sec. 907.2.1.
Building Division Conditions
30. Obtain a building permit for all proposed improvements and change in uses.
31. For any proposed improvement to the existing facility, accessibility upgrades to the
existing facility shall be required as specified in Section 11B-202.4 of the 2013
California Building Code.
05-20-2014
MKIR
Zoning Administrator Resolution No. ZA2014-031
32. A new Certificate of Occupancy shall be obtained from the City and posted prior to
occupancy of the school.
Public Works Conditions
33. The parking layout shall comply with City Standard STD -805 -L-A and STD -805 -L -B.
The parking layout shall be reviewed and approved by the City traffic engineer.
34. The project driveway shall be designed to accommodate adequate sight distance per
City Standard STD -110-L.
35. The final parking management plan shall be reviewed and approved by the City traffic
engineer. The requirements of the parking management plan shall be implemented.
36. Students shall be prohibited from parking within the public right-of-way. School staff
shall monitor the public streets adjacent to the school (i.e. Monrovia Avenue and West
15th Street) at least thirty (30) minutes prior to the start of school and at least fifteen
(15) minutes after school begins to ensure that students do not park off-site.
37. School staff shall only be allowed to direct traffic queuing within the school's parking
lot. School staff shall not direct traffic within the public right-of-way.
38. No traffic control devices (i.e. cones, signage) shall be allowed within the public right-
of-way.
39. The applicant shall monitor the drop off/pick up queues to ensure that the queues do
not impact/impede traffic in the public right-of-way.
40. The applicant shall provide busing service to and from the high school starting at the
3rd year of school operation.
41. If parking demand exceeds capacity or student parking on public streets becomes an
issue, the applicant shall secure additional off-street parking. Any off-street parking
arrangement shall require the approval of a conditional use permit in accordance with
Section 20.40. 100 (Off -Site Parking) of the Municipal Code.
42. If issues/problems arise with the Parking Management Plan (i.e. school drop-off/pick-
up, parking queuing within the public right of way, etc.), the applicant shall modify the
Parking Management Plan to the satisfaction of the City traffic engineer and
community development director. Implementation of the modified Parking
Management Plan shall occur immediately upon approval of the City.
05-20.2014
21-49
Exhibit "D"
Insurance Requirements
Without limiting Tenant's indemnification of City, Tenant will obtain, provide and
maintain at its own expense during the Term of this Agreement, a policy or policies of
insurance of the type, amounts and form acceptable to City. The policy or policies shall
provide, at a minimum, those items described below.
1. Provision of Insurance. Without limiting Tenant's indemnification of City, and
prior to commencement of work on Property by Tenant or Tenant's agents,
representatives, consultants, contractors and/or subcontractors, Tenant shall
obtain, provide and maintain at its own expense during the term of this
Agreement policies of insurance of the type and amounts described below and in
a form satisfactory to City. Tenant agrees to provide insurance in accordance
with requirements set forth here. If Tenant uses existing coverage to comply and
that coverage does not meet these requirements, Tenant agrees to amend,
supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the insurance commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
rating of a- (or higher) and financial size category class vii (or larger) in
accordance with the latest edition of best's key rating guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Tenant and Tenant's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain Workers' Compensation Insurance, statutory limits, and
Employer's Liability Insurance with limits of at least one million dollars
($1,000,000) each accident for bodily injury by accident and each
employee for bodily injury by disease in accordance with the laws of the
State of California, Section 3700 of the Labor Code.
Tenant and Tenant's agents, representatives, consultants, contractors
and/or subcontractors, shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
B. General Liability Insurance. Tenant and Tenant's agents, representatives,
consultants, contractors and/or subcontractors, shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance,
with coverage at least as broad as provided by Insurance Services Office
form CG 00 01, in an amount not less than five million dollars ($5,000,000)
per occurrence, ten million dollars ($10,000,000) general aggregate. The
policy shall cover liability arising from Property, operations, personal and
Pacifica Christian High School - Orange County Page D-1
fIiQ.'ff,
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract) with
no endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
C. Automobile Liability Insurance. Tenant and Tenant's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain automobile insurance at least as broad as Insurance Services
Office form CA 00 01 covering bodily injury and property damage for all
activities of Tenant arising out of or in connection with work to be
performed at the Property, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than five million dollars
($5,000,000) combined single limit each accident.
D. Professional Liability (Errors & Omissions) Insurance. Tenant shall
require that Tenant's consultants, contractors and/or subcontractors
providing any design, engineering, surveying or architectural services for
the Property maintain professional liability insurance that covers the
services to be performed, in the minimum amount of one million dollars
($1,000,000) per claim and two million dollars ($2,000,000) in the
aggregate. Any policy inception date, continuity date, or retroactive date
must be before the Effective Date of this Agreement and Tenant shall
require that Tenant's consultants, contractors and/or subcontractors agree
to maintain continuous coverage through a period no less than three (3)
years after completion of the services performed.
E. Automobile Liability Insurance. Tenant and Tenant's consultants,
contractors and/or subcontractors shall maintain automobile insurance at
least as broad as Insurance Services Office form CA 00 01 covering bodily
injury and property damage for all activities of Tenant or all activities of
Tenant's consultants, contractors and/or subcontractors arising out of or in
connection with work to be performed on the Property, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less
than five million dollars ($5,000,000) combined single limit each accident.
F. Builder's Risk Insurance. During construction, Tenant shall require that
Tenant's construction contractors and subcontractors maintain Builders
Risk insurance or an installation floater as directed by City, covering
damages to the work for "all risk" or special causes of loss form with limits
equal to one hundred percent (100%) of the Property as it exists on the
Effective Date and the completed value of the work, with coverage to
continue until final acceptance of the work by Tenant and City. City shall
be included as an insured on such policy, and Tenant shall provide City
with a copy of the policy. City shall not be responsible for any coinsurance
and City shall be named as a loss payee on such policy. "All Risk"
Property Insurance (Operations) including coverage against the perils of
earthquake, fire, flood, explosion of machinery or equipment, and
Pacifica Christian High School - Orange County Page D-2
21-51
vandalism covering the full replacement cost of all improvements and
fixtures on the Property. City shall be added as insured under the
standard loss payable endorsement. Tenant waives all rights of
subrogation against City for any damage to the improvements or fixtures
covered by collectable commercial insurance. Tenant's obligations to
provide insurance under this paragraph shall apply to all improvements
and fixtures on the Property without regard to the date of construction or
installation.
G. Property Insurance -Construction. During construction of any
improvements on the Property, Tenant shall maintain Builder's Risk
Insurance against "all risk" of physical loss, including the perils of fire,
collapse and transit, with commercially reasonable deductibles, covering
the total cost of work performed, equipment, supplies and materials
furnished on a replacement cost basis. Tenant's obligation to provide this
coverage is contingent on the availability of coverage at commercially
reasonable rates.
H. Pollution Liability Insurance. Tenant shall require that Tenant's
construction contractors and subcontractors maintain a policy providing
contractor's pollution liability ("CPL") coverage with a total limit of liability
of no less than two million dollars ($2,000,000) per loss and in the
aggregate per policy period dedicated to this project. The CPL shall be
obtained on an occurrence basis for a policy term inclusive of the entire
period of construction. If all or any portion of CPL coverage is available
only on a claims -made basis, then a 10 -year extended reporting period
shall also be purchased. The CPL policy shall include coverage for
cleanup costs, third -parry bodily injury and property damage, including
loss of use of damaged property or of property that has not been
physically injured or destroyed, resulting from pollution conditions caused
by contracting operations. Coverage as required in this paragraph shall
apply to sudden and non -sudden pollution conditions resulting from the
escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals,
liquids, or gases, waste materials, or other irritants, contaminants, or
pollutants. The CPL shall also provide coverage for transportation and off-
site disposal of materials. The policy shall not contain any provision or
exclusion (including any so-called "insured versus insured" exclusion or
"cross -liability' exclusion) the effect of which would be to prevent, bar, or
otherwise preclude any insured or additional insured under the policy from
making a claim which would otherwise be covered by such policy on the
grounds that the claim is brought by an insured or additional insured
against an insured or additional insured under the policy.
Pacifica Christian High School - Orange County Page D-3
21-52
4. Endorsements: Policies shall contain or be endorsed to contain the following
provisions:
A. Additional Insured Status. City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as an additional
insured under all general liability and pollution liability policies with respect
to liability arising out of Tenant's activities related to this Agreement and
with respect to use or occupancy of the Property.
B. Primary and Non Contributory. Policies shall be considered primary
insurance as respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims, losses, or
liability arising directly or indirectly from Tenant's operations. Any
insurance maintained by City, including any self-insured retention City
may have, shall be considered excess insurance only and not contributory
with the insurance provided hereunder.
C. Liability Insurance. Liability insurance shall act for each insured and
additional insured as though a separate policy had been written for each,
except with respect to the limits of liability of the insuring company.
D. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Tenant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Tenant hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its consultants, contractors or subcontractors.
E. Reporting Provisions. Any failure to comply with reporting provisions of
the policies shall not affect coverage provided to City, its elected or
appointed officers, officials, employees, agents or volunteers.
F. Notice of Cancellation. The insurance required by this Agreement shall
not be suspended, voided, canceled, or reduced in coverage or in limits
except after thirty (30) calendar days (ten (10) calendar days written notice
of non-payment of premium) written notice has been received by City. It is
Tenant's obligation to ensure that provisions for such notice have been
established.
G. Loss Payee. City shall be included a loss payee under the commercial
property insurance.
Pacifica Christian High School - Orange County
Page D-4
21-53
5. Additional Requirements.
A. In the event City determines that (i) the Tenant's activities on the Property
creates an increased or decreased risk of loss to the City, (ii) greater
insurance coverage is required due to the passage of time, or (iii) changes
in the industry require different coverage be obtained, Tenant agrees that
the minimum limits of any insurance policy required to be obtained by
Tenant or Tenant's consultants, contractors or subcontractors, may be
changed accordingly upon receipt of written notice from City. With respect
to changes in insurance requirements that are available from Tenant's
then -existing insurance carrier, Tenant shall deposit certificates
evidencing acceptable insurance policies with City incorporating such
changes within thirty (30) calendar days of receipt of such notice. With
respect to changes in insurance requirements that are not available from
Tenant's then- existing insurance carrier, Tenant shall deposit certificates
evidencing acceptable insurance policies with City, incorporating such
changes, within ninety (90) calendar days of receipt of such notice.
B. Any deductibles applicable to the commercial property or insurance
purchased in compliance with the requirements of this section shall be
approved by City.
C. Tenant and Tenant's consultants, contractors and/or subcontractors shall
be subject to the insurance requirements contained herein unless
otherwise specified in the provisions above or written approval is granted
by the City. Tenant shall verify that all consultants, contractors and/or
subcontractors maintain insurance meeting all the requirements stated
herein, and Tenant shall ensure that City is an additional insured on
insurance required from contractors. consultants and/or subcontractors.
D. For General Liability coverage, contractors, consultants and/or
subcontractors shall provide coverage with a format at least as broad as
provided by Insurance Services Office form CG 203 80413.
E. If Tenant maintains higher limits than the minimums shown above, the City
requires and shall be entitled to coverage for the higher limits maintained
by the tenant. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to
the City.
F. Tenant shall give City prompt and timely notice of any claim made or suit
instituted arising out of or resulting from Tenant or Tenant's agents,
representatives, consultants, contractors or subcontractors performance
under this Agreement.
G. Tenant shall provide certificates of insurance, with original endorsements
as required above, to City as evidence of the insurance coverage required
Pacifica Christian High School - Orange County Page D-5
21-54
herein. Insurance certificates must be approved by City prior to
commencement of work or issuance of any permit. Current certification of
insurance shall be kept on file with City at all times during the term of this
Agreement.
H. All required insurance shall be in force on the Effective Date, and shall be
maintained continuously in force throughout the term of this Agreement.
In addition, the cost of all required insurance shall be borne by Tenant or
by Tenant's consultants, contractors or subcontractors.
If Tenant or Tenant's consultants, contractors or subcontractors fail or
refuse to maintain insurance as required in this Agreement, or fail to
provide proof of insurance, City has the right to declare this Agreement in
default without further notice to Tenant, and City shall be entitled to
exercise all available remedies.
J. Tenant agrees not to use the Property in any manner, even if use is for
purposes stated herein, that will result in the cancellation of any insurance
City may have on the Property or on adjacent Property, or that will cause
cancellation of any other insurance coverage for the Property or adjoining
Property. Tenant further agrees not to keep on the Property or permit to
be kept, used, or sold thereon, anything prohibited by any fire or other
insurance policy covering the Property. Tenant shall, at its sole expense,
comply with all reasonable requirements for maintaining fire and other
insurance coverage on the Property.
Pacifica Christian High School - Orange County
Page D-6
21-55
Exhibit "E"
Memorandum of Lease
Pacifica Christian High School - Orange County Page E-1
21-56
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
[Exempt from Recordation Fee - Govt. Code §§ 6103 & 27383]
MEMORANDUM OF LEASE AGREEMENT
This Memorandum of Lease Agreement ("Memorandum") is dated
2014, and is made between City of Newport Beach, a California municipal corporation
and charter city ("City") and Pacifica Christian High School - Orange County, a
California non-profit corporation ("Tenant"), concerning the Property described in Exhibit
"A," attached hereto and by this reference made a part hereof.
For good and adequate consideration, City leases the Property to Tenant, and Tenant
leases the Property from City, for the term and on the provisions contained in the
Agreement dated2014, including without limitation provisions
prohibiting assignment, subleasing, and encumbering said leasehold without the
express written consent of City in each instance, as well as provisions for an option to
extend the Agreement for up to two (2) successive five (5) year terms and a first right of
refusal to purchase the Property subject to City's compliance with applicable surplus
property statutes, all as more specifically set forth in said Agreement, which said
Agreement is incorporated in this Memorandum by this reference.
The Agreement's term is ten (10) years, beginning , and ending
, unless extended by the parties.
This Memorandum is not a complete summary of the Agreement. Provisions in this
Memorandum shall not be used in interpreting the Agreement's provisions. In the event
of conflict between this Memorandum and other parts of the Agreement, the other parts
shall control. Execution hereof constitutes execution of the Agreement itself.
[Signatures on the next page]
21-57
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease as of the dates written below.
CITY
City of Newport Beach
a California Municipal Corporation
Date:
Dave Kiff, City Manager
ATTEST:
Date:
Leilani I. Brown
City Clerk
FORM:
Date:
Aaron C. Har
City Attorney
TENANT
Pacifica Christian High School -Orange
County
a California non-profit corporation
Date:
By:
Keith Carlson
President
Date:
By:
David Bahnsen
Vice President/Treasurer
21-58
NOTARY ACKNOWLEDGMENT
State of California )
County of ORANGE )
On before me, , Notary Public,
personally appeared DAVE KIFF, who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity(ies), and that by his signature on the instrument
the person, or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
(Seal)
NOTARY ACKNOWLEDGMENT
State of California )
County of ORANGE )
On before me, , Notary Public,
personally appeared who proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that s/he executed the same in his/her authorized
capacity(ies), and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
21-59
ATTACHMENT CC 2
21-60
21-61
21-62
ATTACHMENT CC 3
RESOLUTION NO. ZA2014-031
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT
NO. UP2014-008 FOR PACIFICA CHRISTIAN HIGH SCHOOL
LOCATED AT 883 WEST 15T" STREET (PA2014-045)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Pacifica Christian High School, with respect to property
located at 883 West 15th Street, and legally described as Parcel 2 of Parcel Map 88-285
requesting approval of a Minor Use Permit.
2. The applicant proposes to operate a private high school for grades 9 through 12 at the
West Newport Community Center.
3. The subject property is located within the Public Facilities (PF) Zoning District and the
General Plan Land Use Element category is Public Facilities (PF).
4. The subject property is not located within the coastal zone.
5. A public hearing was held on August 14, 2014, in the Corona del Mar Conference Room
(Bay E -1st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and
purpose of the meeting was given in accordance with the Newport Beach Municipal
Code. Evidence, both written and oral, was presented to, and considered by, the
Zoning Administrator at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This project has been determined to be categorically exempt pursuant to Title 14 of the
California Code of Regulations (Section 15301, Article 19 of Chapter 3, Guidelines for
Implementation of the California Environmental Quality Act) under Class 1 (Existing
Facilities). Class 1 exempts the operation, repair, maintenance, permitting, leasing,
licensing, or minor alteration of existing public or private structures, facilities,
mechanical equipment, or topographical features, involving negligible or no expansion
of use beyond that existing at the time of the lead agency's determination. The use of
the high school will be similar to the existing instructional programs that are currently
being provided by the City at this facility. The operational characteristics of the
proposed school, including classroom occupancy, hours of operation, parking needs,
and traffic demand are similar to the existing City's classes. Parking will be provided
on-site and the implementation of a parking management plan and school busing
program will mitigate any traffic impact to the area.
2. The Zoning Administrator finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. In
21-63
Zoning Administrator Resolution No. ZA2014-031
Paqe 2 of 9
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages
which may be awarded to a successful challenger.
SECTION 3. REQUIRED FINDINGS.
Minor Use Permit
In accordance with Section 20.52.020.F of the Newport Beach Municipal Code, the following
findings and facts in support of such findings are set forth:
Finding:
A. The use is consistent with the General Plan and any applicable specific plan.
Facts in Support of Finding:
1. The property is designated PF by the General Plan. It allows for public schools,
cultural institutions, government facilities, community centers, public hospitals, and
public facilities. The use of the high school will be similar to the existing instructional
programs and classes that are currently being provided by the City at this facility and
thereby consistent with the General Plan Land Use designation.
Finding:
B. The use is allowed within the applicable zoning district and complies with all other applicable
provisions of this Zoning Code and the Municipal Code.
Facts in Support of Finding:
1. A private school is permitted in the Public Facility (PF) Zoning District with the
approval of a Minor Use Permit per Section 20.26.020 (Special Purpose Zoning
Districts Land Uses and Permit Requirements).
Finding:
C. The design, location, size, and operating characteristics of the use are compatible with the
allowed uses in the vicinity.
Facts in Support of Finding:
1. The high school use is similar to that of the existing community center, with
instructional classes, administrative offices and a gymnasium. Additionally, the
operating characteristics of the use are compatible with existing educational
institutions and residential uses in the immediate area.
05-20-2014
21-64
Zoning Administrator Resolution No. ZA2014-031
Page 3 of 9
2. The subject property has a total of forty (40) parking spaces. Pacifica will be obligated
to provide twenty-five (25) parking spaces to be used by the City for community
programs during the first two (2) years of school operation and the school will have
exclusive use of fifteen (15) parking spaces. Alternative options are placed in the event
that the City will continue the programs and activities beyond Year 2 to ensure there
would be adequate on-site parking provided.
3. A parking management plan has been prepared to ensure that adequate parking will
be provided for the City's programs and proposed school use. It contains the following
stipulations:
a. Designation of twenty-five (25) spaces for City programs during first two (2)
years of school operation and alternative options should City programs will
continue beyond Year 2
b. Implementation of transportation demand program to reduce number of vehicle
trips generated (i.e. carpooling, school busing, bicycling)
C. Implementation of drop-off, pick-up and queuing plan
d. Implementation of on-site parking policy for students
e. Implementation of on -street parking policy including enforcement and oversight
4. The proposed parking management plan has been reviewed and approved by the City
traffic engineer. A list of conditions has been included in the draft resolution to ensure
that Pacifica will be operated in a functional manner and compatible with the existing
uses in the vicinity.
Finding:
D. The site is physically suitable in terms of design, location, shape, size, operating
characteristics, and the provision of public and emergency vehicle (e.g., fire and medical)
access and public services and utilities.
Facts in Support of Finding:
1. With the implementation of a parking management plan, the high school will have
adequate parking for their staff members and students. All student pick-up and drop-
off will be done within the school's parking lot. Physical access for emergency vehicles
will be provided along the existing driveways within the subject property.
2. The City traffic engineer has reviewed the plan and is supportive of the proposed traffic
queuing arrangement of the school parking lot. With the proposed conditions of approval,
no conflicts in traffic circulation or queuing problems are anticipated and the current
locations and design of the driveways can accommodate the vehicle movements.
E. Operation of the use at the location proposed would not be detrimental to the harmonious
and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to
the public convenience, health, interest, safety, or general welfare of persons residing or
working in the neighborhood of the proposed use.
05-20-2014
21-65
Zoning Administrator Resolution No. ZA2014-031
Paqe 4 of 9
Facts in Support of Finding:
1. The proposed high school has been reviewed and this approval includes conditions to
ensure that potential conflicts with the surrounding land uses are minimized to the
greatest extent possible. The operator is required to take reasonable steps to ensure the
operation of the high school will not create a nuisance to the surrounding uses.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use
Permit No. UP2014-008, subject to the conditions set forth in Exhibit A, which is attached
hereto and incorporated by reference.
2. This action shall become final and effective fourteen (14) days following the date this
Resolution was adopted unless within such time an appeal is filed with the community
development director in accordance with the provisions of Title 20 Planning and
Zoning, of the Newport Beach Municipal Code.
PASSED, APPROVED AND ADOPTED THIS 14th DAY OF AUGUST, 2014.
Wisneski, AIPP, Zoning Administrator
05-20-2014
21-66
Zoning Administrator Resolution No. ZA2014-031
Paqe 5 of 9
EXHIBIT "A"
CONDITIONS OF APPROVAL
(Project -specific conditions are in italics)
PLANNING
The development shall be in substantial conformance with the approved site plan and
floor plans stamped and dated with the date of this approval. (Except as modified by
applicable conditions of approval.)
2. Use Permit No. UP2014-008 shall expire unless exercised within twenty-four (24) months
from the date of approval as specified in Section 20.91.050 of the Newport Beach
Municipal Code, unless an extension is otherwise granted.
3. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
4. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Use
Permit.
5. This Use Permit may be modified or revoked by the City if: (i) the Conditions of
Approval are violated; (ii) it is determined that the proposed uses or conditions under
which the Use Permit is being operated or maintained is detrimental to the public
health, welfare or materially injurious to property or improvements in the vicinity; or (iii)
if the property is operated or maintained so as to constitute a public nuisance.
6. Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Use Permit or the processing
of a new use permit.
7. A copy of the Resolution, including conditions of approval (Exhibit "A") shall be
incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
8. Prior to the issuance of a building permit, the applicant shall pay any unpaid
administrative costs associated with the processing of this application to the Planning
Division.
9. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the director of
community development, and may require an amendment to this Use Permit.
10. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 and other applicable noise control requirements of the Newport Beach Municipal
05-20-2014
21-67
Zoning Administrator Resolution No. ZA2014-031
Paqe 6 of 9
Code. The maximum noise shall be limited to no more than depicted below for the
specified time periods unless the ambient noise level is higher:
11. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three (3) walls and a self -latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes.
12. Storage outside of the building in the front of the property shall be prohibited, with the
exception of the required trash container enclosure.
13. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds (open house, back -to -school night, etc.), include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
14. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of the Pacifica Christian High School including, but not
limited to, Minor Use Permit No. UP2014-008. This indemnification shall include, but not
be limited to, damages awarded against the City, if any, costs of suit, attomeys' fees, and
other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by applicant, City, and/or the parties initiating or bringing
such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys'
fees, and damages which City incurs in enforcing the indemnification provisions set forth
in this condition. The applicant shall pay to the City upon demand any amount owed to
the City pursuant to the indemnification requirements prescribed in this condition.
15. Prior to issuance of building permitsthe lease agreement between Pacifica and the
City for the improvement and use of the property shall be executed.
16. Student enrollment shall be restricted as follows:
05-20-2014
21-68
Between the hours of 7:00 a.m.
and 10:00 .m.
Between the hours of 10:00
p.m. and 7:00 a.m.
Location
Interior
Exterior
Interior
Exterior
Residential Property
45dBA
55dBA
40dBA
50dBA
Residential Propertylocated within
100 feet of a commercial p rt
45dBA
60dBA
45dBA
50dBA
Mixed -Use Property
45dBA
60dBA
45dBA
50dBA
Commercial Property
N/A
65dBA
N/A
60dBA
11. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three (3) walls and a self -latching gate) or otherwise screened from view of
neighboring properties, except when placed for pick-up by refuse collection agencies.
The trash enclosure shall have a decorative solid roof for aesthetic and screening
purposes.
12. Storage outside of the building in the front of the property shall be prohibited, with the
exception of the required trash container enclosure.
13. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds (open house, back -to -school night, etc.), include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
14. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of the Pacifica Christian High School including, but not
limited to, Minor Use Permit No. UP2014-008. This indemnification shall include, but not
be limited to, damages awarded against the City, if any, costs of suit, attomeys' fees, and
other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by applicant, City, and/or the parties initiating or bringing
such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys'
fees, and damages which City incurs in enforcing the indemnification provisions set forth
in this condition. The applicant shall pay to the City upon demand any amount owed to
the City pursuant to the indemnification requirements prescribed in this condition.
15. Prior to issuance of building permitsthe lease agreement between Pacifica and the
City for the improvement and use of the property shall be executed.
16. Student enrollment shall be restricted as follows:
05-20-2014
21-68
Zoning Administrator Resolution No. ZA2014-031
Paqe 7 of 9
a. Year 1: No students
b. Year 2: Seventy-five (75) students maximum
c. Year 3: One hundred and twenty (120) students maximum
d. Year 4 and Beyond: One hundred twenty-five (125) students maximum
Year
Total
Students
Freshmen
Sophomore
Junior Senior
1
0
0
0
0 0
2
75
42
33
3
120
45
40
35
4
125
38
31
28 28
17. Administration/faculty shall be restricted as follows:
a. Years 1 through 3: Ten (10) persons
b. Year 4 and Beyond: Fifteen (15) persons
18. A minimum of one (1) parking space shall be provided for each administration/faculty
member (ten (10) spaces for Years 1 through 3 and fifteen (15) spaces for Year 4 and
beyond).
19. A total of forty (40) parking spaces shall be maintained within the subject property;
twenty-five (25) of those spaces shall be allocated for the use of City programs and
activities during the first two (2) years of school operation while the school shall have
exclusive use of fifteen (15) parking spaces. After the second year, provided the City
discontinues all use and the school shall have exclusive use of the entire property and
all forty (40) parking spaces.
20. In the event that the City continues its programs and activities and require parking
spaces at the subject property beyond Year 2, the applicant shall be required to
pursue one of the following alternatives:
a. Secure additional off-street parking. Any off-street parking arrangement shall
require the approval of a conditional use permit in accordance with Section
20.40. 100 (Off -Site Parking) of the Municipal Code;
b. Reduce the student enrollment and administration/faculty consistent with the
approved parking management plan; or
C. Obtain a parking waiver pursuant to Section 20.40. 110 (Adjustment to Off -
Street Parking).
21. An adequate number of bicycle storage racks shall be provided at the school facility.
22. Pacifica shall be responsible for the control of noise generated by the subject facility.
The use of outside loudspeakers, a paging system or a sound system shall be
included within this requirement. The noise generated by the proposed use shall
comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code.
05-20-2014
21-69
Zoning Administrator Resolution No. ZA2014-031
Paqe 8 of 9
Upon evidence that noise generated by the project exceeds the noise standards
established by Chapter 10.26 of the Municipal Code, the community development
director may require that the applicant or successor retain a qualified engineer
specializing in noise/acoustics to monitor the sound generated by the use and to
develop a set of corrective measures necessary in order to ensure compliance.
23. All proposed signs shall be in conformance with the provisions of Chapter 20.42 (Sign
Standards) of the Newport Beach Municipal Code.
24. No outside paging system shall be utilized in conjunction with this establishment.
25. The student classroom hours during the school year (August to June) shall be from 7:30
a.m. to 3:00 p.m., Monday through Friday. Board/staff meetings, parent/teach
conferences, and student extra curriculum (sports, theater, etc.) are permitted before or
after classroom hours as long as adequate on-site parking is provided.
Office/administrative functions are permitted outside of the classroom hours and during
the summer months.
Fire Department Conditions
26. Every room with an occupant load of three hundred (300) or more shall have one (1) of
its exits or exit -access doorways lead directly into a separate means of egress system
that consists of no less than two (2) paths of exit travel which are separated by a
smoke barrier in accordance with Section 710 in such a manner to provide an
atmospheric separation that precludes contamination of both paths of exit travel by the
same fire. Not more than two (2) required exits or exit -access doorways shall enter
into the same means of egress system per California Building Code Section 442.1.2.
27. Fire Sprinklers shall be required as per California Fire Code Section 903.2., for the E
and A-3 occupancies.
28. A manual and automatic fire alarm system that initiates the occupant notification signal
utilizing an emergency voice/alarm communication system meeting the requirements
of Section 907.5.2.2 and installed in accordance with Section 907.6 shall be installed
in Group E occupancies (school) with an occupant load of fifty (50) or more persons or
containing more than one (1) classroom per California Fire Code Sec. 907.2.3.
29. A fire alarm system shall be required for the A occupancy (gym) as per California Fire
Code Sec. 907.2.1.
Building Division Conditions
30. Obtain a building permit for all proposed improvements and change in uses.
31. For any proposed improvement to the existing facility, accessibility upgrades to the
existing facility shall be required as specified in Section 11B-202.4 of the 2013
California Building Code.
05-20-2014
21-70
Zoning Administrator Resolution No. ZA2014-031
Paqe 9 of 9
32. A new Certificate of Occupancy shall be obtained from the City and posted prior to
occupancy of the school.
Public Works Conditions
33. The parking layout shall comply with City Standard STD -805 -L-A and STD -805 -L -B.
The parking layout shall be reviewed and approved by the City traffic engineer.
34. The project driveway shall be designed to accommodate adequate sight distance per
City Standard STD -110-L.
35. The final parking management plan shall be reviewed and approved by the City traffic
engineer. The requirements of the parking management plan shall be implemented.
36. Students shall be prohibited from parking within the public right-of-way. School staff
shall monitor the public streets adjacent to the school (i.e. Monrovia Avenue and West
15th Street) at least thirty (30) minutes prior to the start of school and at least fifteen
(15) minutes after school begins to ensure that students do not park off-site.
37. School staff shall only be allowed to direct traffic queuing within the school's parking
lot. School staff shall not direct traffic within the public right-of-way.
38. No traffic control devices (i.e. cones, signage) shall be allowed within the public right-
of-way.
39. The applicant shall monitor the drop off/pick up queues to ensure that the queues do
not impact/impede traffic in the public right-of-way.
40. The applicant shall provide busing service to and from the high school starting at the
3rd year of school operation.
41. If parking demand exceeds capacity or student parking on public streets becomes an
issue, the applicant shall secure additional off-street parking. Any off-street parking
arrangement shall require the approval of a conditional use permit in accordance with
Section 20.40. 100 (Off -Site Parking) of the Municipal Code.
42. If issues/problems arise with the Parking Management Plan (i.e. school drop-off/pick-
up, parking queuing within the public right of way, etc.), the applicant shall modify the
Parking Management Plan to the satisfaction of the City traffic engineer and
community development director. Implementation of the modified Parking
Management Plan shall occur immediately upon approval of the City.
05-20-2014
21-71
ATTACHMENT CC 4
F-7
INCOME PROPERTY
The City owns and manages an extensive and valuable assortment of property
including streets, parks, beaches, public buildings and service facilities. The City also
owns and operates a yacht basin, a mobile home park, a luxury residential development
and various other income properties. Most of the income property is tidelands, filled
tidelands or waterfront. Unencumbered fee value of income property is estimated at
upwards of one hundred million dollars, and income typically contributes ten percent
of all City revenues.
As owner/manager of property, the City is the steward of a public trust, and state law
requires the City to maximize its returns on state -managed property or be subject to a
charge of making a gift of public funds. Nevertheless, the City Council recognizes the
importance of this property not only as a revenue generator, but also as a means to
provide otherwise unfeasible uses and facilities to benefit the community.
In managing its property, the City will continually evaluate the potential of all City
owned property to produce revenue. This may include leasing unused land, renting
vacant space, and establishing concessions in recreation areas or other similar
techniques. The City Council will evaluate the appropriateness of establishing new
income properties using sound business principles and after receiving input from
neighbors and users.
The policy of the City Council is that income property be managed in accordance with
the following:
A. Whenever a lease, management contract, concession, sale or similar action
regarding income property is considered by the City, an analysis shall be
conducted to determine the maximum or open market value of the property.
This analysis shall be conducted using appraisals or other techniques to
determine the highest and best use of the property and the highest value of the
property.
B. All negotiations regarding the lease, management contract, concession, sale or
similar action regarding income property shall include review of an appraisal or
analysis of the use being considered for the property conducted by a reputable
and independent professional appraiser, real estate consultant or business
consultant.
C. The City shall seek, whenever practical and financially advantageous, to operate
or manage all property and facilities directly with City staff or contractors.
D. In all negotiations regarding the lease, management contract, concession, sale or
similar action regarding a non-residential income property, the City shall seek
1
21-72
ION
revenue equivalent to the open market value of the highest and best use; and,
whenever possible the City shall conduct an open bid or proposal process to
insure the highest financial return.
E. Whenever less than the open market or appraised value is received or when an
open bid process is not conducted, the City shall make specific findings setting
forth the reasons thereof.
Such findings may include but need not be limited to the following:
1. The City is prevented by tideland grants, Coastal Commission guidelines or
other restrictions from selling the property or converting it to another use.
2. Redevelopment of the property would require excessive time, resources and
costs which would outweigh other financial benefits.
3. Converting the property to another use or changing the manager,
concessionaire or lessee of the property would result in excessive vacancy,
relocation or severance costs, which would outweigh other financial benefits.
4. Converting residential property to another use or opening residential leases
to competitive bid would create recompensable liabilities and other inequities
for long-term residents.
5. The property provides an essential or unique service to the community that
might not otherwise be provided were full market value of the property be
required.
6. The property serves to promote other goals of the City such as affordable
housing, preservation of open space or marine related services.
F. Generally, lengths of leases, management contracts, concessions or similar
agreements will be limited to the minimum necessary to meet market standards
and will contain appropriate reappraisal and inflation protection provisions.
Also, all agreements shall contain provisions to assure complete audits
periodically through their terms.
G. All negotiations regarding the lease, management contract, concession, sale or
similar action regarding income property shall be conducted by the City
Manager or his/her designee under the direction of any appropriate City
committees.
H. To provide an accurate accounting of actual net revenues generated by the City's
income property, all costs and charges directly attributable to the management of
2
21-73
100
a specific income property shall be debited against the gross revenues collected
on that property in the fiscal year the costs are incurred. Costs and charges
include property repairs and maintenance, property appraisals, and consultant
fees, as authorized by the City Council, City Manager or by this Income Property
Policy.
I. The City Manager or his/her designee is authorized to sign a lease, management
contract, concession or similar agreement or any amendment thereto, on behalf
of the City. Notwithstanding the foregoing, the City Manager or his/her
designee, or a City Council member, may refer any lease, management contract,
concession or similar agreement or any amendment thereto, to the City Council
for its consideration and/or action.
Adopted - July 27,1992
Amended - January 24,1994
Amended - February 27,1995
Amended - February 24,1997
Amended - May 26,1998
Amended - August 11, 2009
Amended - May 14, 2013
Formerly F-24
3
21-74
A Lease Agreement with
Pacifica Christian High School
To Lease
West Newport Community Center
�I
Z
;9�I
.•
West Newport Community Center
..........
bi
Pacifica Christian Hiah Schoo
Ten years with two five-year options;
Recreation and Senior Services Department will
continue to use the facility for programming —
Maintaining 25 parking spaces;
Rent shall be $289,054 per year, but reduced by 30%
for City's continued use;
Pacifica may terminate this agreement with a one
year advanced notice; and,
Pacifica has first right of refusal if the City chooses to
sell the property.
Duesti�
Community Development Department