HomeMy WebLinkAboutC-5888 - Pacific View Drive, 3443 (3300) - Parking Lot Lease Agreement 2014 - Big Canyon ReservoirAMENDMENT NO. ONE TO LEASE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
V HARBOR DAY SCHOOL
This AMENDMENT NO. ONE TO LEASE AGREEMENT ("Amendment No. One")
is made and entered into as of this 14th day of July, 2020 ("Effective Date"), by and
between the City of Newport Beach, a California municipal corporation and charter city
("City"), and Harbor Day School, a California nonprofit corporation ("Tenant"). City and
Tenant may be individually referred to herein as a "Party," and collectively referred to
herein as the "Parties."
RECITALS
A. City is the owner of the property, structures, and improvements commonly known
as Big Canyon Reservoir located at 3300 Pacific View Drive, Newport Beach,
California [Assessor's Parcel Number 458-331- 01] ("Property"). The Property is
approximately 4.68 acres and depicted on Exhibit "A" of the Lease Agreement, as
defined herein.
B. City owns the Property, subject to certain covenants, conditions, restrictions and
easements, pursuant to that Indenture Agreement executed by and between the
City and The Irvine Company ("Irvine"), dated December 18, 1957, recorded
December 20, 1957, as Instrument No. 164527, in Book 4143, and Page 395, of
the Official Records in the Office of the County Recorder, County of Orange, State
of California ("Deed").
C. The Deed required the City to construct a reservoir on the Property and contained
other covenants and restrictions regarding use of the Property which was
subsequently amended to allow limited use of a portion of the Property by Tenant
for a school drop-off and queuing area, pursuant to that Amendment to Indenture
Covenants and Restrictions & Quitclaim of Road Easement dated October 7, 2013,
and recorded August 26, 2014, as Instrument No. 2014000345410, in the Official
Records in the Office of the County Recorder, County of Orange, State of
California ("Amendment").
D. Tenant is the owner of the property, structures, and improvements commonly
known as Harbor Day School, located at 3443 Pacific View Drive, Newport Beach,
California ("Harbor Day School"). Harbor Day School is operated as a private
school with instruction for kindergarten through eighth grade.
E. On August 6, 2014, the City entered into that certain Lease Agreement with Tenant
("Lease Agreement"), concerning approximately 0.69 acres of the Property
("Premises") to construct a parking lot (including improvements reasonably related
thereto, such as gates, bollards and driveways) for: (i) temporary parking for the
dropping off and picking up students who attend Harbor Day School; (ii) parking
for events associated with Harbor Day School activities; and (iii) incidental lighting
related to such purposes so long as all lighting is screened to minimize glare to
Harbor Day School Page 1
neighboring residents (collectively, "Parking Lot"). The Premises is depicted and
legally described on Exhibit "B" of the Lease Agreement.
F. Tenant is rebuilding Harbor Day School and requests a modification to the Lease
Agreement to temporarily allow Harbor Day School employees to park at the
Premises during construction.
G. Irvine granted a Consent to Temporary Construction Uses Within the Big Canyon
Reservoir Site amending the Deed to temporarily allow a modification to use of the
Premises during construction.
H. Tenant requested and the City agrees to enter into this Amendment No. One to
amend the Lease Agreement to temporarily allow and add an Exhibit B-1, which is
attached hereto and incorporated herein by reference subject to the following
conditions.
AGREEMENT
NOW, THEREFORE, in consideration of the benefits set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties mutually agree as follows:
1. A Section 5.2.1 is hereby added to the Lease Agreement with the following:
5.2.1. Temporary Operation of Premises.
For three (3) years from the Effective Date of this Amendment
No. One, Tenant may temporarily allow employees to park in
the Parking Lot, while maintaining a revised queuing plan for
student pick up and drop off, in connection with a
redevelopment project at the Harbor Day School property,
and conditionally approved by the City as described and
depicted in Exhibit B-1, attached hereto and incorporated
herein by reference. Tenant shall be responsible for
temporarily re -striping the Parking Lot to accomplish a safe
and harmonious use of the Parking Lot by those utilizing it for
both parking and queuing. Upon the conclusion of the three
years from the Effective Date of this Amendment No. One,
Tenant shall be responsible for re -striping the Parking Lot to
return the Parking Lot to its original condition that preceded
this Amendment No. One, in accordance with Exhibit B and
the Lease Agreement. All requirements of Section 5.2
("Operation of Premises") of the Lease Agreement remain in
full force and effect.
Harbor Day School Page 2
2. A Section 8.9 is hereby added to the Lease Agreement with the following:
8.9. Costs of Temporary Construction. Tenant shall
bear all costs and expenses of the design, construction,
maintenance, and removal thereof associated with the
temporary operation of the Premises, as described in Section
5.2.1, including but not limited to the temporary re -striping of
the Parking Lot. Notwithstanding the terms set forth in Section
8.6 (Payment of Costs) of the Lease Agreement, City shall not
be responsible for any costs or liability associated with
temporary operation of or construction thereon the Premises.
3. A Section 8.10 is hereby added to the Lease Agreement with the following.-
8.10
ollowing:
8.10 Disposition of Temporary Construction and Alteration
at Expiration or Amendment No. One Termination. All re -
striping of the Parking Lot shall be complete and the original
queueing plan as set forth in Exhibit B of the Lease Agreement
shall resume on September 1, 2023. A true and correct copy
of the original queueing plan from Exhibit B of the Lease
Agreement is reproduced within Exhibit B-1 for ease of
reference.
4. A Section 10.4 is hereby added to the Lease Agreement with the following:
10.4 Hold Harmless Clause for Temporary Operation of the
Premises and Construction Thereon. In addition to the
indemnification and insurance obligations set forth in Sections
10.1 through 10.3, 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,
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, in connection with the temporary
Harbor Day School Page 3
queueing, re -striping, operation and construction
contemplated under this Amendment No. One.
5. Except as expressly modified herein, all other provisions, terms, covenants
and conditions set forth in the Lease Agreement shall remain unchanged and shall be in
full force and effect.
[Signatures on Next Page]
Harbor Day School Page 4
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
One as of the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
_�_A C_b_�
Aaron C. arp cnhoukvAlzo
City Atto ey
ATTEST:
Date: 7, A. ;44
By.
Leilani I. Brown
City Clerk
CITY: CITY OF NEWPORT BEACH, a
California municipal corporation and
charter city
Date: 7- Z 6-20
By:
Graceung
City gnager
TENANT: HARBOR DAY SCHOOL, a
California nonprofit corporation
Date:
Signed in Counterpart
By.
Angela Evans
Chief Executive Officer
Date:
Signed in Counterpart
By:
Mark Dubeau
Chief Financial Officer
[End of Signatures]
Attachments: Exhibit B-1 — Interim Queueing Plan
Harbor Day School Page 5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
One as of the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY: CITY OF NEWPORT BEACH, a
California municipal corporation and
charter city
Date:
M
Grace K. Leung
City Manager
TENANT: HARBOR DAY SCHOOL, a
California nonprofit corporation
Date: s.� z�,
Angela Evans
Chief Executive Officer
Date: _(0 15.1 Zo
By: W F, Z'5�
h-', -hi Me -Z.
Rwo i4eA A4- Pio axe o F
[End of Signatures]
Attachments: Exhibit B-1 — Interim Queueing Plan
EXHIBIT B-1
INTERIM QUEUEING PLAN
Drop-off and pick-up operations are proposed to remain unchanged: morning drop-
off occurs from approximately 7:40 a.m. to 8:00 a.m. and afternoon pick-up occurs
from approximately 2:55 p.m. to 3:20 p.m. The Interim Queueing Plan, as
described and depicted herein, will function almost exactly the same as it has since
inception, but it will allow for the parking of 34 staff vehicles during construction of
the on-site parking lot.
2. When arriving to pick up students, cars will line up in four (4) lines in the Carpool
Queueing Area. At 3:00 p.m., two (2) teachers (orange dots) will be positioned in
the Carpool Queueing Area. Seven (7) teachers (red dots) and a Carpool Pickup
Area Captain (magenta dot) will be positioned in the Pickup Area. The Queueing
Captain will motion cars when it is safe and time to leave the Interim Queueing
Area and enter the School Pickup Area.
3. Furthermore, the two (2) teachers (orange dots) that are positioned in the Carpool
Queueing Area will manage the five (5) queueing lanes by directing each lane to
filter through the queue and into the two (2) designated lanes in the Pickup Area
when directed by the Queueing Captain.
4. Tenant is prepared to institute additional means and methods to mitigate
congestion on Pacific View or Marguerite Avenue should an issue arise when the
Interim Queueing Plan is in effect.
5. Tenant's faculty and staff will continue to monitor students exiting and loading into
cars. They will also direct the traffic flow between the off-site and on-site parking
lots, as queue vehicles cross Pacific View Drive from the Big Canyon Reservoir
parking lot to the school parking lot. The temporary construction and operation of
the Premises will not change the way carpool operations are currently managed.
Harbor Day School Page B-1
Interim Queueing Plan- Effective July 2020 through August 30, 2023
INTERIM QUEUING PLAN
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Harbor Day School Page B-2
Original Queueing Plan: Effective prior to this Amendment No. One and August 2023 though
termination of the Lease Agreement. (Reproduced from Exhibit B of the Lease Agreement).
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Harbor Day School
Page B-3
LEASE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
HARBOR DAY SCHOOL
This Lease Agreement ("Agreement") is made and entered into as of the �O
day of 2014 ("Effective Date'), by and between the City of Newport Beach,
a California municipal corporation and charter city ("City"), and Harbor Day School, a
California non-profit corporation ("Tenant").
RECITALS
A. City is the owner of the property, structures, and improvements commonly
known as Big Canyon Reservoir located at 3300 Pacific View Drive, Newport Beach,
California [Assessor's Parcel Number 458-331-01] ("Property"). The Property is
approximately 4.68 acres and depicted on Exhibit "A."
B. City owns the Property pursuant to an Agreement between the City and
the Irvine Company dated April 3, 1957, as amended ("Deed"),
C. Tenant is the owner of the property, structures, and improvements
commonly known as Harbor Day School, located at 3443 Pacific View Drive, Newport
Beach, California ("Harbor Day School"). Harbor Day School is operated as a private
school with instruction for kindergarten through eighth grade.
D. Tenant proposes to lease approximately 0.69 acres of the Property
("Premises") to construct a parking lot (including improvements reasonably related
thereto, such as gates, bollards and driveways) for: (i) temporary parking for the
dropping off and picking up students who attend Harbor Day School; (ii) parking for
events associated with Harbor Day School activities; and (iii) incidental lighting related
to such purposes so long as all lighting is screened to minimize glare to neighboring
residents (collectively, "Parking Lot"). The Premises is depicted and legally described
on Exhibit "B."
E. 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 Premises. Under City
Council Policy F-7(E)(1), the City did not conduct an open bid process because the
Deed language prevents the City from using the Premises for any other purpose or
renting to any other party.
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 Premises made by Tenant, its employees, agents, and contractors.
(b) Authorized City Representative — the City Manager or his/her
designee.
(c) Commencement Date — the date the City delivers possession of the
Premises 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 Premises.
(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.
(j) 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.
Harbor Day School Page 2
1.2 Other Definitions. — The following additional terms are defined in the
following sections of this Agreement:
(a) Deed Recitals, §B
(b) Rent §0
(c) Hazardous Materials §16
(d) Indemnified Parties §10.1
(e) Option Term(s) §3.2
(f) Parking Lot Recitals, §D
(g) Property Recitals, §A
(h) Premises Recitals, §D
(i) Initial Term §3.1
2. PREMISES
City finds it to be consistent with public facility uses to grant Tenant a right to
construct and operate the Parking Lot on the Premises. Therefore, subject to the terms
and conditions set forth herein and the language in the Deed, City hereby leases to
Tenant and Tenant agrees to lease the Premises in an "as is" condition as tendered
from City. Tenant agrees that no representations with respect to the condition or
improvements of the Premises have been made by City except as specifically set forth
in this Agreement.
3. TERM
3.1 Term of Aqreement. The initial term of this Agreement shall be twenty-five
(25) 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, and upon approval of the City,
Tenant may extend the term of this Agreement for one (1) additional successive term of
twenty-five (25) years (the "Option Term") commencing on Expiration of the Initial 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.
3.3 Hold Over. Should Tenant, with City's consent, hold over and continue in
possession of the Premises after Expiration of the Term or any Option Term, Tenant's
continued occupancy of the Premises shall be considered a month -to -month tenancy
Harbor Day School Page 3
subject to all the terms and conditions of this Agreement, except the provisions of
Sections 3.1 and 3.2.
3.4 Redevelopment of Property. Should City redevelop the Property or
Premises 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 Premises,
City shall provide Tenant with at least three hundred sixty-five (365) calendar days prior
written notice of termination of this Agreement, and in no event shall City commence
redevelopment of the Premises until at least three hundred sixty-five (365) calendar
days after Tenant's receipt of such written notice. City will make all best efforts to
perform such redevelopment so that Tenant may continue to use the Premises as the
Parking Lot; however, the City cannot guarantee that space will be available.
3.5 Change in Use. Should Harbor Day School permanently cease to be used
as a school (excluding any temporary closure of one twenty (120) calendar days or less
due to the change in the school name and/or school operator), this Agreement shall
automatically terminate as of the date of such permanent cessation, regardless of the
remaining length of the Term or Option Term.
3.6 School Remodel. Notwithstanding any other provision in this Agreement,
upon thirty (30) calendar days prior written notice to City the Tenant may temporarily
close the school no more than one-time during the Term of this Agreement, including
any Option Term, for up to twenty-four (24) consecutive months to allow for
remodeling/reconstruction activities at the school, without being in default or risk
termination. Tenant shall comply with all obligations provided in this Agreement during
the closure (e.g., payment of rent, maintenance, insurance provisions, etc.).
4. RENT
4.1 Rent. Tenant shall commence payment of rent upon the Commencement
Date. The "Rent", which includes the use of the Premises, shall be established at
Eleven Thousand Four Hundred Forty Dollars and 00/100 Cents ($11,440.00) per year.
Rent shall be paid, in advance, in equal monthly installments on the first day of each
month (e.g., Nine Hundred Fifty -Three Dollars and 33/100 Cents ($953.33) 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 4.4. Tenant shall be responsible for
any delays in the mode of sending the rent payment to City.
4.2 Rent Adiustments. 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
Harbor Day School Page 4
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.
4.3 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 Premises, City may elect to adjust Rent at the commencement of the twenty-sixth
(26t") Lease Year to reflect the fair market rental value of the Premises pursuant to this
Section (which adjustment shall be in lieu of the adjustment pursuant to Section 4.2),
should Tenant elect to exercise the Option Term. City will provide notice to Tenant not
earlier than twelve (l2) months nor later than nine (9) months prior to the expiration of
the twenty-fifth (25t ) Lease Year of City's election to adjust Rent pursuant to this
Section. Within thirty (30) days thereafter, City and Tenant will attempt in good faith to
agree upon an adjustment in Rent based upon the fair market rental value of the
Premises. If City and Tenant are unable to agree within such thirty (30) day period, the
Premises will be appraised to determine its fair market rental value in accordance with
this Section, which appraisal shall be completed at least six (6) months prior to
Expiration of the Initial Term. 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 Premises. 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 twenty-sixth (26th) 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.
4.4 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
Harbor Day School Page 5
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.
4.5 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 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.
4.6 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.
4.7 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 PREMISES
5.1 Business Purposes. The Premises are to be used by Tenant for the
construction, maintenance and operation of the Parking Lot 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 Parking Lot and complying with all
applicable conditions imposed by such permits and licenses.
5.2 Operation of Premises. Tenant shall operate and manage the
Premises in a manner comparable to other high quality parking lots providing similar
uses and services. Tenant may operate the Parking Lot Monday through Friday, during
the period that begins one (1) hour prior to regular school hours (as adjusted for partial
or extended days) and ends one (1) hour after regular school hours (as adjusted for
partial or extended days), but no earlier than six o'clock in the morning (6:00 a.m.) and
no later than six o'clock (6:00 p.m.) in the evening. Additionally, Tenant may operate
the Parking Lot no more than ten (10) times per year for special events which fall
outside of normal school hours. No ovemight parking is allowed on the Premises.
Tenant must close and secure the entrance and exit to the Premises each night, no
later than eight o'clock (8:00 p.m.) in the evening, and no later than eleven o'clock
(11:00 p.m.) in the evening for special events which fall outside of normal school hours.
Tenant shall comply with all conditions of approval placed upon the Parking Lot.
Harbor Day School Page 6
5.3 Shared Driveway. City and Tenant will share a driveway entrance to the
Property and Premises. Tenant shall ensure the driveway is kept free and clear of all
vehicles and obstructions (other than any gates or bollards installed pursuant to this
Agreement) to allow City access to and from the Property using the driveway; provided
however that City shall use commercially reasonable efforts to not interfere with
Tenant's operation and/or use of the Premises. City shall provide Tenant with at least
five (5) business days prior notice (except no prior notice shall be required in the event
of an emergency) of any extended use of the driveway that may materially impact
Tenant's operation and/or use of the Premises, such as closures or other blockages, but
does not include normal daily access to and from the Property.
5.4 Prohibited Uses. Tenant shall not use the Premises for any purpose other
than the Parking Lot. The Parking Lot is for the exclusive use of the Tenant's
employees, contractors, agents, volunteers, guests and invitees. Use of the Parking Lot
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 lot open for use by the general public, nor
collect any rate or charge for use of the Premises. Tenant shall not use or permit the
use of the Premises in any manner that: (a) creates a nuisance; or (b) violates any Law.
5.5 Signage. Tenant may, at its own expense, place one (1) permanently
installed identifying sign, as well as permanently installed directional signs in or upon
the Premises subject to the prior written consent of the City as to the size, type, number,
design and method of installation (which consent shall not be unreasonably withheld,
conditioned or delayed) and in compliance with the City's sign code regulations and the
Deed restrictions applicable to the Premises. Additionally, Tenant may, at its own
expense, place temporary signs in or upon the Premises without the consent of the City,
but otherwise in compliance with the City's sign code regulations and the Deed
restrictions applicable to the Property and Premises, providing that Tenant shall remove
all temporary signs at the end of each day, when the Parking Lot is closed. All signage
placed by Tenant on, in or about the Premises 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 Personnel. Tenant shall be responsible for hiring the necessary personnel
to conduct the daily operation of Parking Lot. Tenant shall comply with all applicable
federal, state, and local Laws related to minimum wage, Social Security,
nondiscrimination, ADA, unemployment compensation and workers' compensation.
5.7 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 Parking Lot 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
Harbor Day School Page 7
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 Premises, 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 Premises or any personal property
installed on the Premises.
6.2 Payment of Obliqations. Tenant shall promptly pay, when due, any and all
bills, debts, liabilities and obligations incurred by Tenant in connection with Tenant's
occupation and use of the Premises.
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 Premises, Tenant's personal property, or Tenant's occupation and
use of the Premises, 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 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
Representatives, agents and volunteers ("Indemnified Parties") 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.
Harbor Day School Page 8
7. UTILITIES.
Tenant shall be responsible for payment of all utilities furnished to or used on the
Premises exclusively by Tenant, or Tenant's pro rata share of all utilities furnished to or
used by Tenant on the Property.
8. ALTERATIONS TO THE PREMISES.
8.1 Tenant Improvements. City shall deliver possession of the Premises 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 compliance with all applicable laws, Tenant may construct improvements consistent
with those shown on Exhibit "B," as may be revised or modified in order to obtain
entitlements and/or building permits from the applicable local and state agencies.
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 "B," 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 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, 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.
8.2 Tenant's Architects and Contractors. All improvements and landscaping on
the Premises 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, construction and maintenance of the Parking Lot (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 required in connection with the development of
the Parking Lot; (ii) all design, engineering, financing and construction costs; and (Hi) all
necessary studies and appraisals, use permits or variances, and all grading, building
and like permits required to construct and operate the Parking Lot, including any fees
assessed on the Premises by any governmental, or quasi -governmental agency or
Harbor Day School Page 9
authority in connection with any regional transportation or other public improvements
and school district taxes, development fees and assessments.
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
Parking Lot. 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 Premises as the Parking Lot.
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 Parking Lot and any alterations 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 Premises, 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 Premises.
8.7.1 Release/Removal of Liens: In the event any lien or stop notice is
imposed or recorded on the Premises, or an improvement permanently affixed to the
Premises, 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 Premises 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 Premises.
8.8 Disposition of Alterations at Expiration or Agreement Termination. Any
alterations made to the Premises shall remain on, and be surrendered with, the
Premises on expiration or termination of this Agreement (excluding Tenant's moveable
personal property). Prior to expiration or within fifteen (15) 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 Premises caused by removal and restore the Premises to
good condition.
Harbor Day School Page 10
9. MAINTENANCE OF PREMISES
9.1 Maintenance and Repair by Tenant and City. Tenant agrees that it will
keep the Premises in good condition, reasonable wear and tear and damage by
casualty and condemnation excepted. City may perform maintenance or repairs in the
event Tenant fails to commence any maintenance or repairs required to keep the
Premises 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 Premises as
required by this Agreement.
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), enter upon and inspect the Premises 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 Premises in performing
any such entry and/or inspection. In case of emergency, City or its authorized City
representative(s) may enter the Premises by whatever force reasonably necessary if
Tenant is not present to open and permit an entry. Any entry to the Premises by City
under this Agreement shall not be construed as a forcible or unlawful entry into, or a
detainer of, the Premises, or an eviction of Tenant from the Premises or any portion
thereof. Any damage caused to the Premises 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,
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 Premises, specifically including,
without limitation, any claim, liability, loss or damage arising by reason of:
Harbor Day School Page
(a) The death or injury of any Person or damage to personal property
caused or allegedly caused by the condition of the Premises or an act or omission of
Tenant or an agent, contractor, subcontractor, supplier, employee, or servant Tenant;
(b) Any work performed on the Premises or materials furnished to the
Premises 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 Premises 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 sole 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
sole negligence, intentional or willful acts of the Indemnified Parties. City shall not be
liable to Tenant for any damage to the Premises, 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 "C."
11. DAMAGE OR DESTRUCTION OF PROPERTY/PREMISES
11.1 Destruction of Premises. If the Premises are totally or partially destroyed,
rendering the Premises or any portion thereof totally or partially inaccessible or
unusable, Tenant shall restore the Premises 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). 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 Premises will take more
than six (6) months. Upon such termination, insurance proceeds applicable to
reconstruction of the Property (excluding Tenant's personal property therein) shall be
paid to City and Tenant shall have no further liability or obligations under this
Agreement.
Harbor Day School Page 12
11.2 Destruction of Property. In the event that all or a portion of the Property is
damaged, and the Premises 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 Premises or any
material portion thereof shall be taken in condemnation proceedings, then this
Agreement shall automatically terminate when a right to occupancy or possession is
acquired by the condemning authority. If only a non -material portion of the Premises
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 Premises (or any
portion thereof), or damage to the Property that impacts the Premises (or any portion
thereof), or condemnation of the Premises (or any portion thereof), and this Agreement
is not terminated, Tenant may continue to utilize the Premises for the operation of the
Parking Lot 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 Premises that is rendered unusable (as determined in Tenant's reasonable
judgment). The abatement of rent shall commence on the date that use of the Premises
is impacted and continue until the completion of those repairs necessary to restore full
use of the Premises, if any, and Tenant's re -opening of the Premises. 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 Premises is the result of the
negligence or willful conduct of Tenant or its employees, officers or agents.
Harbor Day School Page 13
13. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND
ENCUMBERING
Prohibition of Assiqnment. City and Tenant acknowledge that City is entering
into this Agreement in reliance upon the experience and abilities of Tenant and pursuant
to the restrictions in the Deed. Consequently, Tenant shall not assign, sublease or
encumber its interest in this Agreement or in the Premises, or assign substantially all or
any part of the Premises, or allow any other person or entity to occupy or use all or any
part of the Premises other than for the uses permitted under this Agreement and with
the City's prior written consent. Any assignment, sublease or transfer made without the
City's written consent is null and void.
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 Premises by Tenant for a
period of one hundred twenty (120) successive calendar days, 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 school 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
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 Premises or of Tenant's interest in this
Harbor Day School Page 14
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 Premises 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
Premises, and, without terminating this Agreement, re -let all or a portion of the
Premises. 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 Premises.
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 Premises (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 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
Harbor Day School Page 15
law. City shall be entitled to an award of the reasonable costs and expenses incurred
by City in maintaining or preserving the Premises after default (after the expiration of all
notice and cure periods), preparing the Premises for re -letting, or repairing any damage
caused by an act or omission of Tenant.
(b) City's Riqht 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 notice, 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.
15. WASTE OR NUISANCE
Tenant shall not commit or permit the commission of any waste on the Premises.
Tenant shall not maintain, commit, or permit any nuisance as defined in Section 3479 of
the California Civil Code on the Premises. Tenant shall not use or permit the use of the
Premises 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 Premises 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 Premises 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 Premises is not in violation of any
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 Premises, 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 Premises and the presence or the
remediation (without any obligation of Tenant to perform remediation) materially affects
Tenant's ability to operate the Parking Lot at the Premises. "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
Harbor Day School Page 16
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 Premises 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'), 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 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, including the obligation to operate the Parking Lot.
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
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If to Tenant, to:
20. SURRENDER OF PREMISES
Harbor Day School
Attn: Headmaster
3443 Pacific View Drive
Newport Beach, CA 92660
At the expiration or earlier termination of this Agreement, Tenant shall surrender
to City the possession of the Premises. Tenant shall leave the surrendered Premises 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 fifteen (15) 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 Premises by Tenant more than fifteen (15)
calendar days after the expiration or termination of this Agreement.
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.
Harbor Day School Page 18
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 in effect at the time of the execution of this Agreement. 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 ali 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
amendment to this Agreement.
26.4 The terms and conditions of this Agreement shail not be altered or modified
except by a written amendment to this Agreement signed by Tenant and the City
Manager or his/her designee.
26.5 If any conflicts arise between the terms and conditions of this Agreement,
and the terms and conditions of the attached exhibits or the documents expressly
incorporated by reference, the terms and conditions of this Agreement shall control.
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 Premises 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 Premises, 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.
Harbor Day School Page 19
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.
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. NO 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.
Harbor Day School Page 20
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 "D" 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 Premises in the office of the Orange County Clerk -
Recorder, as required by Government Code Section 37393.
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 Premises. 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
Harbor Day School Page 21
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. 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 followsj
Harbor Day School Page 22
EXHIBIT "A"
Property Depiction
Harbor Day School
Page A-1
EXHIBIT "B"
Premises' Depiction & Description
Harbor Day School
Page B-1
A�
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,.emt T PExN
QLEANG PLAN
HARJRCF JAY 4CHOUL
3443 +'AClfl '4EW =IPIvE
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Harbor Day School
Page B-2
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.`Pt
City Attorney
ATTEST: �.1
Date:
By:
Leilani I. Brown
City Clerk
(for)
CITY
the City of Newport Beach,
a Califomia municipal corporation
Date:
By:
David KiT''
City Manager
TENANT
Harbor Day School,
a California non-profit corporation
Date: ' 2 3'
By:
Geoffrey on Der Ahe
President, Board of Trustees
Date:
Dr. Daniel R. Greenwood
Head of School
[End of Signatures]
Harbor Day School
Page 23
Exhibit "C"
Insurance
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 Premises 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 Califomia, 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 ten million dollars
($10,000,000) per occurrence, ten million dollars ($10,000,000) general
aggregate. The policy shall cover liability arising from premises,
Harbor Day School Page C-1
operations, personal and 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 Premises, 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 Premises 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 Premises, 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 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.
G. Pollution Liability Insurance. Tenant shall require that Tenant's
construction contractors and subcontractors maintain a policy providing
Harbor Day School Page C-2
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.
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 Premises.
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 Subroqation. 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
Harbor Day School Page C-3
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. Reportinq 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.
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
Harbor Day School Page C-4
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.
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
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.
I. 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 Premises 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 Premises or on adjacent premises, or that will cause
cancellation of any other insurance coverage for the Premises or adjoining
premises. Tenant further agrees not to keep on the Premises or permit to
be kept, used, or sold thereon, anything prohibited by any fire or other
insurance policy covering the Premises. Tenant shall, at its sole expense,
comply with all reasonable requirements for maintaining fire and other
insurance coverage on the Premises.
Harbor Day School Page C-5
Exhibit "D"
Memorandum of Lease
Harbor Day School Page D-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 tajwk (ca
2014, and is made between City of Newport Beach, a California municipal corporation
and charter city ("City') and Harbor Day School, a California non-profit corporation
("Tenant"), concerning the Premises described in Exhibit "A," attached hereto and by
this reference made a part hereof.
For good and adequate consideration, City leases the Premises to Tenant, and Tenant
leases the Premises from City, for the term and on the provisions contained in the
Agreement dated rkuMju.4t(® , 2014, including without limitation provisions
prohibiting assignment, subleasing, and encumbering said leasehold without the
express written consent of City in each instance, 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 twenty-five (25) years, beginning o�[OtPttk , and ending
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]
Harbor Day School Page D-1
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease as of the dates written below.
APPROVED AS TO FORM: CITY
the City of Newport Beach,
THE CITY ATTO NEY'S OFFICE a California municipal corporation
Date: ���8 �3 Date:
By:
Aaron C. Harp
City Attorney
EST: �
Date:
By:
Leilani I. Brown
City Clerk
By:
David Kiff
City Manager
TENANT
Harbor Day School,
a California non-profit corporation
Date: 7- L3 17
By4 t
Ge ffrey V B6uv. n Der Ahe
President, Board of Trustees
Date:
Dr.`Daniel R. Greenwood
Head of School
NOTARY ACKNOWLEDGMENT
State of California )
County of ORANGE )
On I\ULr 5 2ot'{ before mejU\ Yt\UuiclfVotary Public,
personally appea?ed 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(es)rand that by his signature on the instrument
the person, or the entity upon behalf of which the persons) 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 )
(Seal)
JENNIFER ANNMUWEY E
Commission # 2045022 z
Notary Public - California
orange County
MT Com j,Exelree Oct 12. 20171
NOTARY ACKNOWLEDGMENT
On �JI�'�% 73 2 /4 before e, ��/� / Notary Public,
personally peared i eo R1. ho proved to me
on the basis of satisfactory evidence to be t - .;rsoWwhdse name is subs ribed to the within
instrument and acknowledged0»one tha ?t executed the same irVtfTher authorized
capacity(ies), and that by hlc/her 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
,l -tMxrt
J!N 11
Commission 01941377
Notary Public California
Orange County
My Comm. Expires Jun 16, 201
z
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