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HomeMy WebLinkAboutPacific View Drive, 3300 (Big Canyon Reservoir - 3443 Pacific View Drive -Harbor Day School)'1 RECORDING REQUESTED AND WHEN RECORDED RETURN TC Office of the City Clerk City of Newport Beach r 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder I��I�IIIIIiII�iIi�IIIIIIIII�IIII�II��IIIIIIIIII�III��III�IIIIIIII��IIIIIIIII�I NO FEE *$ R 0 0 0 6 9 0 9 1 2 9$ 201400033420610:43 am 08119114 47 405 M11 4 0.00 0.00 0.00 0.00 9.00 0.00 0.00 0.00 [Exempt from Recordation Fee - Govt. Code §§ 6103 & 27383] MEMORANDUM OF LEASE AGREEMENT This Memorandum of Lease Agreement ("Memorandum") is datediii At k tP_' .✓ 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 (v , 2014, including without limitation provisions prohibiting assignment,7 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 and ending 7,O3G 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] Harbor Day School Page D-1 l0 IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the dates written below. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: T/&L�3 By. l ) Aaron C. Harp City Attorney Date: By: NIM==— Leilani I. Brown City Clerk CITY the City of Newport Beach, a California municipal corporation Date: By David Kiff City Manager TENANT Harbor Day School, a California non-profit corporation By: ti--/��a Ge ffreyWGVon DerAhe President, Board of Trustees 0- PO Date: 7 !d ®/1 St � B Dr. Daniel R. Greenwood "�"` Head of School NOTARY ACKNOWLEDGMENT State of California ) County of ORANGE ) On R\) (o 5)2u11A before meji_NfNttEv9NNf\U"pv jNotary 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) State of California ) County of ORANGE ) JENNIfERANN-MULVEY Commission # 2045022 Notary Public - California i z Orange County M Comm Ex Ir95 Oct 112.20171+ NOTARYACKNOWLEDGMENT On before e, //Z / Notary Public, personally geared Gy ean�. eo tsed W. Von Rejo &ho proved to me on the basis of satisfactory evidence to be trsoMwh,6se name is subsgrilled to the within instrument and acknowledged�.pe that s� executed the same ieWer authorized capacity(ies), and that by his{IaeF 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 i (Seal JIN LI Commission # 1941377 Notary Public - California Orange County QMg Comm. Expires Jun 16.2 01 J, K� , , , Exhibit "A" LEASE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND HARBOR DAY SCHOOL This Lease Agreement ("Agreement") is made and entered into as of the UAL� 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. 0) 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 Agreement. 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.). 4.1 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�12) 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 (26tt') 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.newportbeachea.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 overnight 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 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 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 (iii) 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 Citv. 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 11 (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 Prohibition of Assignment. 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 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 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. if-!: ! IIKi M3-MT*JWj 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 Harbor Day School Page 17 If to Tenant, to: Harbor Day School Attn: Headmaster 3443 Pacific View Drive Newport Beach, CA 92660 20. SURRENDER OF PREMISES 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 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 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. 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. 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] 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 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: CITY the City of Newport Beach, THE CITY ATTORNEY'S OFFICE a California unicipal corporation Date: TO 113 Dater ► By: ' t �af, By. U Aaron C.`4 David Kill" City Attorney City Manager ATTEST: r B Date: �/ By: 0&� bmV Leilani I. Brown City Clerk TENANT Harbor Day School, a California non-profit corporation Date: By: Geoffrey W! Von Der Ahe President, Board of Trustees Date: a 3 r BY: 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 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 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 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 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. 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. 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. 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 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 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 Rln (,p 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 let's' � (® , 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 0,, 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] 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: THE CITY ATTO NEY'S OFFICE Date: B t 3 By. Aaron C. Harp City Attorney ATTEST: 13, Date: By: ki�j, &== Leilani I. Brown City Clerk CITY the City of Newport Beach, a California municipal corporation Date: 1 By: David Kiff City Manager TENANT Harbor Day School, a California non-profit corporation i By: 'L— Ge ffrey V n Der Ahe President, Board of Trustees Date: d ® By: f� Dr. 0aniel R. Greenwood' Head of School NOTARY ACKNOWLEDGMENT State of California ) County of ORANGE ) On Poic, 5)2otk1 before 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 JENNIFER ANN MUWEY Commission # 2045022 Signature Notary Public .. California z Orange County My comm. Ex fres Oct 1247 (Seal) NOTARY ACKNOWLEDGMENT State of California ) County of ORANGE ) On before e, `I /� 1 Notary Public, personally peared ?�ztnielA. yerznu� �`eUYee/ bt1 Vol) �erho proved to me on the basis of satisfactory evidence to be t raw se name is subs ribed to the within instrument and acknowledge5,�x1e that' executed the same irt�Wer authorized capacity(ies), and that by h 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 J!N LI commission 1941377 Notary Public , California a sOrange County SM Comm. Expires Jun 16, 2015 CITY OF NEWPORT BEACH City Council Staff Report July 22, 2014 Agenda Item No. 6. 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: Parking Lot Lease Agreement with Harbor Day School, and Amendment to Deed Restrictions to Allow the Construction and Operation of Both the Parking Lot and a New City Maintenance Yard Building Located at the Big Canyon Reservoir Site, 3300 Pacific View Drive ABSTRACT: Harbor Day School requests to lease 0.69 acres of City property at the Big Canyon Reservoir site, to construct and operate a parking lot for student pick-up and drop-off, and additional off-street parking for special events. An amendment to the grant deed restrictions for Big Canyon Reservoir is needed to allow for construction of the school parking lot and a future City maintenance yard building. RECOMMENDATION: Approve and authorize the City Manager and City Clerk to a) Execute the Amendment to Indenture Covenants and Restrictions and Quitclaim of Road Easement (Staff Report Attachment CC 4) amending the deed restriction at the Big Canyon Reservoir site; and b) Execute a twenty-five (25) year lease agreement with an annual rent of $11,440 per year, as adjusted annually by the Consumer Price Index (CPI), and authorize the City Manager or his designee to enter into the agreement (Staff Report Attachment CC 1) with Harbor Day School. FUNDING REQUIREMENTS: The revenue for the parking lot would be deposited to a new General Fund account (Fund 2910). 1]6.10111*lN]:F Background Harbor Day School (HDS), located at 3344 Pacific View Drive, has requested to lease a 0.69 -acre portion of undeveloped land at the front of the Big Canyon Reservoir (BCR) property, just inside the entrance (Attachment CC 2). The school proposes to construct and operate a parking and queuing lot for student drop-off and pick-up to reduce the traffic and congestion impacts on Pacific View Drive and the surrounding streets. On April 3, 2014, the Planning Commission approved a conditional use permit (Attachment CC 3) allowing the school to make improvements to their existing parking lot and improve portions of the BCR. Subject to City Council approval of the proposed lease agreement, HDS will obtain the required building permits prior to constructing the new parking lot. On May 15, 2014, the Zoning Administrator approved a minor use permit (Attachment CC 7) allowing the City to construct a new 9,000 square -foot building for vehicle, parts, and supplies storage at the BCR site (Attachment CC 8). Should the City Council approve the proposed grant deed amendment, the City will then be able to obtain the required building permits for constructing the new building. Proposed Amendment to Indenture Covenants and Restrictions and Quitclaim of Road Easement The City acquired the BCR property from the Irvine Company via an Indenture agreement (Attachment CC 6) dated December 18, 1957. Pursuant to the terms of acquisition, any use of the property not necessary to the storage and transmission of water is prohibited as a deed restriction. City staff negotiated an amendment to the deed restrictions which allows HDS to construct and operate the parking lot and the City to construct a new maintenance yard building (Attachment CC 4). The proposed amendment also allows for the City to enter into a lease agreement with HDS for use of a portion of the BCR site for the parking area. The proposed amendment stipulates that should HDS cease to operate as a school, approval of the amended deed restriction shall also terminate. Therefore, staff did not conduct an open bid process for the property because staff believes that the following findings, as required by City Council Policy F-7, Income Property (Attachment CC 5), can be made: 1. Redevelopment of the property would require excessive time, resources and costs which would outweigh other financial benefits. Redevelopment of the property is prohibited by agreements between the City of Newport Beach and the Irvine Company. 2. 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. The amendment approved by the Irvine Company stipulates that the school is the only user that may lease a portion of the premises for a parking and drop-off area. Pursuant to Section B of City Council Policy F-7, Income Property, the City sought the assistance of an appraiser to determine the fair market value rent for the property. Rent, under the terms of the proposed agreement, would be $11,440 per year ($953 per month), and will adjust annually upon the first day of each lease year by the Consumer Price Index (CPI). The appraisal of market conditions confirmed the proposed rental rates are consistent with fair market value. Summary of Proposed Lease Agreement with HDS The proposed terms of the Lease Agreement with HDS are summarized below: 1. The term of the agreement will be for twenty-five years with one (1) twenty-five year extension option, unless terminated as provided by the agreement. 2. Rent shall be set at $11,440 per year, with payments made in twelve equal monthly installments of $953. Rent shall commence upon delivery of the premises to the school, and will adjust annually upon the Rent Commencement Date based on the change in the Consumer Price Index (CPI) during the initial term of the lease, and the option term if extended. 3. Hours of Operation shall be limited to Monday through Friday starting no earlier than one hour before regular school hours, or 6:00 a.m., and no later than one hour after regular school hours, or 6:00 p.m. Tenant may operate the parking lot for special events, that fall outside of normal school hours, no more than ten times per year. No overnight parking is allowed on the premises, and the entrance and exit to the parking lot must be secured each night. 4. City and the tenant will share a driveway entrance to the reservoir site and the leased premises. Tenant is prohibited from obstructing or impacting City's access to the reservoir. 5. Tenant is responsible for construction of all parking lot improvements to the lease premises, including walls, gates, and fences necessary to maintain a secure perimeter to the reservoir site. Tenant is responsible for maintenance and repair of the lease premises. 6. Insurance and Indemnity provisions consistent with current standards, all other lease terms are consistent with the City's standard terms. The Lease Agreement and Amendment documents have been reviewed by the City Attorney's office and have been approved as to form. ENVIRONMENTAL REVIEW: The recommended actions are not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The Planning Commission found the construction of the parking lot to be categorically exempt under Sections 15311 — Class 11 (Accessory Structures) and 15314 - Class 14 (Minor Additions to Schools), of the State CEQA (California Environmental Quality Act) Guidelines. The Zoning Administrator found the maintenance building project to be categorically exempt pursuant to Title 14 of the California Code of Regulations (Section 15303, Article 19 of Chapter 3) — Class 3 (New Construction or Conversion of Small Structures), of the State CEQA (California Environmental Quality Act) Guidelines. 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). There are no noticing requirements for this particular agenda item as it relates to approval of a lease agreement and amendment to existing deed restrictions. Though, noticing was conducted for the Planning Commission hearing for Harbor Day School's Conditional Use Permit for to increase school enrollment and improvments for the new parking lot at the Big Canyon Reservoir site. Noticing was also conducted for the Zoning Administror hearing for the proposed Big Canyon Reservoir maintenance building project. The noticing consisted of a mailer to all property owners within 300 feet of the boundaries of the school property and Big Canyon Reservoir site, and published in the Daily Pilot. The noticing included the residential properties to the north and west of Big Canyon Reservoir. ATTACHMENTS: Description Attachment CC 1 - Lease Agreement Attachment CC 2 - Parking Lot Location Maps Attachment CC 3 - Planning Commission Resolution No. 1940 Attachment CC 4 - Amendment Attachment CC 5 - City Council Policy F-7. Income Property Attachment CC 6 - Indenture Attachment CC 7 - Zoning Administrator Resolution No. ZA2014-016 Attachment CC 8 - New Facility Location Map ATTACHMENT CC1 LEASE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND HARBOR DAY SCHOOL This Lease Agreement ("Agreement") is made and entered into as of the 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(13), 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 Agreement. 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 Chance 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 Adjustments. Rent may be adjusted on the 15` anniversary of the Commencement Date and then on the 151 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 (26th) 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 (12) months nor later than nine (9) months prior to the expiration of the twenty-fifth (25th) 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 wvvw.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 overnight 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 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 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 (iii) 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 ("CEQK) 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 11 (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 Assignment. 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 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 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 Harbor Day School Page 17 If to Tenant, to: Harbor Day School Attn: Headmaster 3443 Pacific View Drive Newport Beach, CA 92660 20. SURRENDER OF PREMISES 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 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 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. 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 follows] Harbor Day School Page 22 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates written below. APPROVED AS TO FORM: THE CITY A' 13 By: Aaron C. City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk S OFFICE Cf.r CITY the City of Newport Beach, a California municipal corporation Date: By: David Kiff City Manager TENANT Harbor Day School, a California non-profit corporation Date: By: Geoffrey W. Von Der Ahe President, Board of Trustees Date: Dr. Daniel R. Greenwood Head of School [End of Signatures] Harbor Day School Page 23 EXHIBIT "A" Property Depiction Harbor Day School Page A-1 hk N j a :1 Ji � ...rr. weY L9� .LIL7a� I� kS I I ld IJU �4y �� G Y i �6ns 7 I�al �7fl 1"1 i 4 y o. ,I l 1 l ..� aIcJRrPLAN HARBOR u B K F-..,,.,. 3"3 PACFlC VIEW DRIVE �-.e.� wir•m owa mw+ac wwtt cwrr+wl. Harbor Day School Page B-2 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 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 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 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 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. Reoorting 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. 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 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 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 _, 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 , 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] 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: THE CITY A Date: 4 By: Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk EY'S OFFICE CITY the City of Newport Beach, a California municipal corporation Date: By: David Kiff City Manager TENANT Harbor Day School, a California non-profit corporation Date: By: Geoffrey W. Von Der Ahe President, Board of Trustees Bv: Dr. Daniel R. Greenwood Head of School 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 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 ATTACHMENT CC2 +tir: \7 tc � / Bayview Apartme s Homes Newport Beach GIS ,r p�'rogr Feet ° m 0 417 833 G �" C�<IFOP��' Reservoir lorial Park Mortuary Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagieaerial.com Newport Beach GIS G,r p�'rogr o m a C�<IFOP��' Big Canyon Reservoir 0 100 200 Feet Lease Premises Harbor Day School* Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagieaerial.com e n PLAN B KF a p HARBORRBOR DAY SCHOOL u..P }nn} PACIFIC NEW DRIVE NFWp(f BCM d1NIGE CdMil CKRORMI I j 113111 SSrII 11111 111111 11111 - --------------------- rrrrrr 13x11 , -- ----------- rrrrrr rrrrrri a i 11111 'i = � • �� .11x111 11111 I r3rl 13111 X11111 1111 ;1x111 11111 ;11111 � 11111 ,11113 ----------------- 1 111 1 '- - - - - - - - - - - - - - - - - - - / 9 rrrrrr rrrrrr 8 •�AeA, . ;°,,,°; � _=AAA`. eae gg . 31.1 gAA= e A1=1 ��111 �9Ae= �r°111°1 � •_11.11 � AAB� .� A !/ N l� QUEUING PHASING PLAN a HARBOR DAY SCHOOL 111 3443 PACIFIC VIEW DRIVE BKF-...... NEMCRI BCI.01 fAnACF COJMIY CIAE'ON.. lam' Se i .1� •, ATTACHMENT CC3 RESOLUTION NO. 1940 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2013-024 FOR HARBOR DAY SCHOOL LOCATED AT 3443 PACIFIC VIEW DRIVE (PA2013-212) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Harbor Day School (HDS), with respect to property located at 3300 and 3443 Pacific View Drive, requesting approval of a Use Permit. 2. The applicant proposes to increase the school enrollment by 72 students, from 408 to 480; make improvements to the school's existing parking lot; and improve a portion of the Big Canyon Reservoir located at 3300 Pacific View Drive for use as an off-site parking lot for traffic queuing and special event parking. There is no increase in building square footage proposed and the additional students will be accommodated within the existing facility. 3. The school property is located within the PI (Private Institutions) Zoning District with a floor area ratio (FAR) of 0.35 and the General Plan Land Use Element category is PI (Private Institutions). 4. The proposed off-site parking lot at the Big Canyon Reservoir is located within the PF (Public Facilities) Zoning District and the General Plan Land Use Element category is PF (Public Facilities). 5. The subject properties are not located within the coastal zone. 6. A public hearing was held on April 3, 2014, in the Council Chambers 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 Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. The project is categorically exempt under Sections 15311 — Class 11 (Accessory Structures) and 15314 - Class 14 (Minor Additions to Schools), of the State CEQA (California Environmental Quality Act) Guidelines. a. Class 11 consists of construction, or replacement of minor structures accessory to commercial, industrial, or institutional facilities, including small parking lots. The proposed off-site parking lot and improvements made to the school's existing parking lot have been appropriately considered under this CEQA Class Exemption. Planning Commission Resolution No. 1940 Paqe 2 of 10 b. Class 14 consists of minor additions to schools within existing school grounds where the addition does not increase original student capacity by more than 25% or ten classrooms, whichever is less. The proposed increase in student enrollment would qualify for this CEQA Exemption as HDS is requesting a cumulative increase of 22% in student enrollment and no additional classrooms. SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.52.020.F of the Newport Beach Municipal Code, the following findings and facts in support of the findings for a use permit 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 HDS property has the General Plan Land Use designation of PI (Private Institutions) which allows privately -owned facilities that serve the public, including places for religious assembly, private schools, health care, cultural institutions, museums, yacht clubs, congregate homes, and comparable facilities. The HDS property has an FAR of 0.35. The proposed use permit amendment is consistent with the General Plan Land Use designation in that the proposed project will not change the development limit as it does not include new construction or introducing a new use to the subject property. 2. The proposed off-site parking lot to be developed on the City's property has the General Plan Land Use designation of PF (Public Facilities) which is intended to provide public facilities, including public schools, cultural institutions, government facilities, community centers, public hospitals and public facilities. The proposed off- site parking lot is consistent with the General Plan Land Use designation in that it is an ancillary use to the existing City's reservoir. 3. The proposed improvements to the school's parking lot and the off-site parking are ancillary and in support of the existing private school. There is no impact to the existing use of the subject property or the City's Reservoir site as a result of the proposed increase in the school enrollment. 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. 10-15-2013 Planning Commission Resolution No. 1940 Paae 3 of 10 Facts in Support of Finding: 1. The HDS property is zoned PI (Private Institutions) with an FAR of 0.35 which allows private schools with the approval of a use permit. HDS is a private school with classes from kindergarten to 8th grade and was established in 1971 by Use Permit No. 1546, which has been amended several times throughout the years in order to accommodate the operation and physical expansion of the facility. Most recently, the 1999 Amendment served to accommodate the development of a new gymnasium and contains a condition limiting the number of enrolled students to 408, which HDS is now seeking to increase. 2. The proposed off-site parking area is owned by the City and is located on part of the Big Canyon Reservoir property and zoned PF (Public Facility), which allows public facilities. The proposed off-site parking lot is an ancillary use to the City's reservoir; however, a Use Permit is required for HDS's use of the City property, pursuant to City Zoning Code Section 20.40.100 (Off -Site Parking). 3. According to the applicant, the existing school facility has the physical classroom capacity to absorb the proposed increase of 72 students. The Zoning Code does not provide a parking requirement for school uses, but requires the parking requirement to be established through the use permit procedure. The previous amendments to Use Permit No. 1546 have required parking based on the number of full-time employees serving the school, since the facility serves only non -driving age students, from kindergarten to 8th grade. The existing school's parking lot currently has 36 parking spaces and a condition of approval reflects this number. The faculty parking demand will not be increased or there would be additional parking required for the increased number of non -driving age students. 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 proposed improvements to the existing school's parking lot and the addition of the off-site parking lot to be used for traffic queuing and special event parking would result in an improvement to the existing daily pick-up and drop -up activities associated with the school and would improve rather than cause additional undue traffic impacts to the local street system. 2. The proposed design and improvements to the school's parking lot and off-street parking lot have been reviewed and approved by the Public Works and Municipal Operations Departments to ensure that they would be functional and compatible with the existing uses in the vicinity. 10-15-2013 Planning Commission Resolution No. 1940 Page 4 of 10 3. The proposed off-site parking lot does not abut sensitive uses and is designed to accommodate additional vehicles attributable to the increased enrollment as well as alleviate existing congestion on Pacific View Drive experienced under current operations. 4. The existing contractor yard located at 3300 Pacific View Drive will be relocated to the east of the existing site, at the end of Pacific View Drive. A new security wall, gate, and drive approach will be installed. Tree and landscape replacement and installation of necessary utilities, and storm water runoff and treatment facilities are also included in this project. No conflict is anticipated between the existing school parking lot and the proposed use of the reservoir property for traffic queuing and parking purposes. 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. HDS is a private school that was established in 1971 by Use Permit No. 1546. Since that time, several amendments were made to accommodate the operation and physical expansion of the facility. The proposed improvements to the existing school's parking lot and the off-site parking lot have been reviewed by the Fire and Municipal Operations Department to ensure adequate access for public and emergency vehicles. Access to the City's reservoir will be maintained and accessible to City staff at all times. Additionally, the City Traffic Engineer has reviewed and is supportive of the proposed traffic queuing arrangement of the off-site parking lot and 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 increased vehicle movements. In accordance with Section 20.40.100.6 of the Newport Beach Municipal Code, the following findings and facts in support of the findings for a use permit for an off-site parking lot are set forth: Finding: A. The parking facility is located within a convenient distance to the use it is intended to serve. Facts in Support of Finding: 1. The proposed off-site parking lot is located on the north side of Pacific View Drive, immediately across from the school campus, and conveniently accessible to the school. The proposed design and improvements to the off-street parking lot have been reviewed and approved by the Public Works and Municipal Operations Departments to 10-15-2013 Planning Commission Resolution No. 1940 Paae 5 of 10 ensure that they would be functional and readily accessible for the queuing of vehicles during the drop-off and pick-up times and parking for special events. Finding: B. On -street parking is not being counted towards meeting parking requirements. Facts in Support of Finding: 1. On -street parking along Pacific View Drive is not being counted towards meeting parking requirements for the existing school and the school's parking lot currently has 36 parking spaces as required by Use Permit No. 1546 and its previous amendments. Finding: C. Use of the parking facility will not create undue traffic hazards or impacts in the surrounding area. Facts in Support of Finding: 1. The off-site parking lot will be used as a vehicle queuing area in order to facilitate the afternoon traffic flow, which tends to be the most intense, and to accommodate the proposed increase in enrollment. The new queuing arrangement consists of four -lane vehicle stacking with staff members stationed at strategic locations to direct vehicles to enter into the school's parking lot in a three -lane configuration for student pick-up. This arrangement will eliminate vehicles queuing on Pacific View Drive and thereby will not create undue traffic hazards or impacts in the immediate area. The City Traffic Engineer has reviewed and is supportive of the proposed traffic queuing arrangement on the off-site parking lot. Finding: D. The parking facility will be permanently available, marked, and maintained for the use it is intended to serve. Facts in Support of Finding: 1. HDS is negotiating with the City for the use of a portion of Big Canyon Reservoir for traffic queuing and special event parking. The 30,100—square-foot area proposed by HDS for lease will be designed to accommodate up to 68 vehicles for queuing and 60 spaces for special event parking. HDS will be responsible for all costs associated with the improvements made to the City's property. HDS will also responsible for the maintenance and upkeep of the off-site parking lot. 10-15-2013 Planning Commission Resolution No. 1940 Paae 6 of 10 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves UP2013-024, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This resolution supersedes Use Permit No. 1546 and its amendments, which upon vesting of the rights authorized by Use Permit No. 2013-024, shall become null and void. 3. This action shall become final and effective 14 days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 (Planning and Zoning), of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 3rd DAY OF APRIL, 2014. AYES: AMERI, BROWN, LAWLER, MYERS, KRAMER, TUCKER, AND HILLGREN NOES: NONE ABSTAIN: NONE ABSENT: NONE 10-15-2013 Planning Commission Resolution No. 1940 Page 7 of 10 EXHIBIT "A" CONDITIONS OF APPROVAL PLANNING 1. The development shall be in substantial conformance with the approved site plan, stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. Harbor Day School 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. 4. This Use Permit may be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 5. 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. 6. 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. 7. 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. 8. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 9. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise -generating construction activities to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise -generating construction activities are not allowed on Sundays or Holidays. 10. 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 10-15-2013 Planning Commission Resolution No. 1940 Page 8 of 10 attract large crowds or any other activities as specified in the Newport Beach Municipal Code to require such permits. 11. 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 Harbor Day School application including, but not limited to, Use Permit No. 2013-024. 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. 12. Prior to the issuance of building permit, the lease between HDS and the City for the improvement and use of the off-site parking lot shall be recorded. 13. The number of students enrolled at the school shall not exceed 480 students at any time. 14. One parking space for each full-time faculty member (36 spaces) shall be provided on- site. 15. An adequate number of bicycle storage racks shall be provided at the school facility. 16. Special events including, but not limited to, theatrical presentations and athletic events which involve the attendance of parents and visitors shall be permitted to occur simultaneously in the auditorium and the gymnasium but only within the occupancy of the existing multipurpose room as determined by the Fire Department. 17. The existing gymnasium building shall be limited to a maximum overall height of 41 feet 6 inches. 18. Harbor Day School shall be responsible for the control of noise generated by the subject facility. The use of outside loudspeakers, paging system or 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. 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 to 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. 10-15-2013 Planning Commission Resolution No. 1940 Page 9 of 10 19. No outdoor loudspeaker or paging system shall be permitted in conjunction with the gymnasium operation. 20. All outdoor storage and trash areas shall be screened from view from Pacific View Drive and adjoining properties. 21. The use of the off-site parking lot shall be consistent with the terms and conditions stated herein and included in the lease agreement. 22. Prior to the issuance of a building permit, the applicant shall submit a landscape and irrigation plan prepared by a licensed landscape architect for the off-site parking lot. These plans shall incorporate drought tolerant plantings and water efficient irrigation practices, and the plans shall be approved by the Municipal Operations Department and Planning Division. 23. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. Building Division Conditions 24. Prior to issuance of grading permits, the applicant shall prepare and submit a Water Quality Management Plan (WQMP) for the proposed project, subject to the approval of the Building Division and Code and Water Quality Enforcement Division. The WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur. 25. A list of "good housekeeping" practices will be incorporated into the long-term post - construction operation of the site to minimize the likelihood that pollutants will be used, stored or spilled on the site that could impair water quality. These may include frequent parking area vacuum truck sweeping, removal of wastes or spills, limited use of harmful fertilizers or pesticides, and the diversion of storm water away from potential sources of pollution (e.g. trash receptacles and parking structures). The Stage 2 WQMP shall list and describe all structural and non-structural BMPs. In addition, the WQMP must also identify the entity responsible for the long-term inspection, maintenance, and funding for all structural (and if applicable Treatment Control) BMPs. 7171i.�4R.Ti! K.7ii litreit 26. The driveway to the new queuing area shall be a minimum of 24 feet wide and shall align with the centerline of Marguerite Avenue. Modifications to the gated entry (i.e. gate, drive aisle and wall) to the Big Canyon Reservoir Yard may be required upon further review by the Municipal Operations Department and Public Works Department. 10-15-2013 Planning Commission Resolution No. 1940 Paqe 10 of 10 27. The off-site parking lot driveway located at Marguerite Avenue and Pacific View Drive shall be modified to comply with ADA requirements to ensure that an ADA pathway is provided. 28. The damaged driveways along Pacific View Drive adjacent to Harbor Day School shall be reconstructed and modified to comply with ADA pedestrian pathway requirements. 29. Student drop-off and pick-up procedures shall be subject to further review by the City Traffic Engineer. Modifications to these procedures shall be reviewed and approved by the Community Development Director and Traffic Engineer. Also, should problems arise in the future with regard to these procedures, the applicant shall work directly with the City Traffic Engineer to resolve said problems and concerns. 30. School staff shall only be allowed to direct queuing traffic within the off-site parking lot and the schools parking lot. School staff shall not direct traffic within the public right-of- way. 31. The applicant shall be required to modify the internal traffic circulation within the reservoir area as directed by the Municipal Operations Department. 32. The applicant shall effectively and efficiently control queuing of vehicles on-site to ensure that this operation does not impact the Marguerite Avenue and Pacific View Drive right-of-ways. 33. The existing fire hydrant located within the proposed queuing lane at the off-site parking lot shall be relocated to Pacific View Drive at minimum of 5 feet from the new driveway approach, per City Standard STD -500-L. 10-15-2013 ATTACHMENT CC4 RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92658 Attn: City Clerk WITH A CONFORMED COPY TO: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel's Office (Space Above for Recorder's Use) EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE SECTIONS 27383 AND 6103 AMENDMENT TO INDENTURE COVENANTS AND RESTRICTIONS & QUITCLAIM OF ROAD EASEMENT (BIG CANYON RESERVOIR SITE) This Amendment to Indenture Covenants and Restrictions & Quitclaim of Road Easement ("Amendment') is entered into as of (/ , 2013, by and between The Irvine Company LLC, a Delaware limited liability company ("TIC") and the City of Newport Beach, a California municipal corporation and charter city ("City'). TIC and the City are sometimes referred to herein individually as a "Party" and collectively as the "Parties." A. WHEREAS, pursuant to that certain Indenture dated December 18, 1957, and recorded in the Official Records of Orange County, California ("Official Records") on December 20, 1957 as Instrument No. 164527 in Book 4143, Page 395 (the "Indenture"), The Irvine Company, a West Virginia corporation ("Irvine"), conveyed approximately 46.68 acres of land located at 3300 Pacific View Drive, Newport Beach, California (the "Reservoir Site") to the City, together with pipeline easements over two parcels of land described in the Indenture (the "Pipeline Easements") and a road easement for access between MacArthur Boulevard and the Reservoir Site over certain land described in the Indenture (the "Road Easement'). Said Indenture was executed and recorded to fulfill the obligations under that certain Agreement dated April 3, 1957 between Irvine and the City (the "1957 Agreement'). B. WHEREAS, the Indenture required that the City construct a reservoir on the Reservoir Site and contained other covenants and restrictions regarding use of the Reservoir Site (the "Use Restrictions"). The City subsequently constructed the JRC\ 30209.0905\ 453979.3 9/12/2013 - 1 - reservoir (the "Big Canyon Reservoir') on the Reservoir Site for the purpose of impounding and distributing water for municipal purposes. C. WHEREAS, TIC is the successor in interest to Irvine. D. WHEREAS, City and TIC mutually desire to amend the Indenture to revise the Use Restrictions to allow for more effective use of the Reservoir Site and to clarify other rights and obligations of the Parties under the Indenture. AMENDMENT NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Recitals. The foregoing Recitals are true and correct and incorporated into this Amendment by reference. 2. Quitclaim of Road Easement. Effective on the Effective Date, City hereby quitclaims all right, title and interest in and to all portions of the Road Easement located outside of all public road rights-of-way existing as of the date of recordation of this Amendment. The Pipeline Easements described in the Indenture shall remain unchanged and in full force and effect. 3. Change to Use Restrictions for Reservoir Site. The last paragraph of Section I(A) of the Indenture is amended in its entirety to read as follows: That the City shall cause to be constructed in and upon the Reservoir Site a water storage reservoir with a storage capacity of not less than 600 acre feet and appurtenant works and municipal facilities in accordance with the plans therefor as approved by the City, and that after said water storage reservoir and appurtenant works and municipal facilities shall have been so constructed and installed in and upon said property, the City and its successors and assigns shall cause the same to be maintained and operated for the following purposes and for no other use or purpose (the "Permitted Uses"): (a) use, operation, maintenance, repair and replacement of the Big Canyon Reservoir; JRC\ 30209.0405\ 453979.3 9/12/2013 - 2 - (b) use of the portion of the Reservoir Site depicted as the "Maintenance Yard Area" on Exhibit A attached hereto for (i) storage of materials and equipment for municipal purposes, (ii) construction, maintenance and repair of single story building(s) not to exceed a combined total of twelve thousand square feet (12,000') in size for storage, repair and City maintenance purposes, (iii) incidental lighting related to such purposes so long as all lighting is screened to minimize glare to neighboring residents. No equipment or materials stored in the Maintenance Yard Area shall protrude higher than twenty feet (20') above the surface of the ground, and City shall use reasonable best efforts to screen any stored material and equipment from view of neighboring residents at the same ground level as the Maintenance Yard Area; (c) use of the portion of the Reservoir Site depicted as the "School Drop -Off Area" on Exhibit B attached hereto for (i) temporary parking for carpools 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. Overnight parking is strictly prohibited. Notwithstanding the above, the Permitted Use described in subsection (c) above shall terminate and be of no further force and effect at such time as the Harbor Day School ceases to operate as a school facility. Nothing contained herein shall prohibit the City from either (i) entering into a lease, license or similar agreement with Harbor Day School for use of the School Drop -Off Area or (ii) retaining any revenues from any such lease, license or agreement; provided, however, that in no event shall City be entitled to lease, license, sell or enter any other agreement allowing use of any portion of the School Drop -Off Area to any other party. 4. Run With the Land. The Use Restrictions described in Section 3 above and contained elsewhere in the Indenture (collectively, the "Covenants") are declared to be covenants, conditions and restrictions on the Reservoir Site and constitute JRC\ 30209.0405\ 453979.3 9(12(2013 - 3 - covenants running with the land and are binding upon City and each and every owner of all or any portion thereof, all of which are for the purpose of preserving and protecting the value and use of the properties owned by TIC in the vicinity of the Reservoir Site described on Exhibit C attached hereto (the "Benefited Property') for so long as any portion of the Benefited Property is owned by TIC or its affiliates, successors and assigns. Said Covenants shall run in favor of and shall be enforceable by TIC and its affiliates, successors and assigns, and shall be binding upon and enforceable against the City and its successors and assigns. 5. Effective Date. This Amendment shall be deemed effective upon the date of its recordation in the Official Records. 6. No Other Changes. Except as expressly set forth in this Amendment, all other provisions, terms, and covenants set forth in the Indenture shall remain unchanged and in full force and effect. To the extent there is a conflict between this Amendment, the Indenture and/or the 1957 Agreement, the provisions of this Amendment shall prevail. Date: Date: CITY OF NEWPORT BEACH Dave Kiff City Manager ATTEST: Leilani I. Brown City Clerk Date: LO APPROVED AS TO FORM: CITY A RNEY'S OFFICE Aaron C. Harp City Attorney SRC\ 30209.0405\ 453979.3 9/12/2013 - 4 - T IRVINE Y L C Date: /D - 2— / Da iel T. Miller Senior Vice President Date: Sha n .'Monterastelli Assistant Secretary JRC\ 30209.0405\453979.3 9/12/2013 - 5 - STATE OF CALIFORNIA ) )SS. COUNTY OF ORANGE ) On 2 20(3 'before me, C—mN�A'\k3v- 0IX-v"kLA Ake,, a Notary Public in and for said State, personally appeared to I,-, . Yhr I U �- , who proved to me on the basis of satisfactory evidence to be the person(s) whose nameN) is/ara_ subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hed-their authorized capacity0e4 and that by his/her/their signature(. on the instrument the personz§kor the entity upon behalf of which the person 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. - CYNTHIA NIMBLETT AKERS Commission 8 1978351 Nota Public in and for said State Notary Public - California Orange County My Comm. Expires Jun 12, 2018 STATE OF CALIFORNIA SS. COUNTY OF ORANGE On QCtC16-ei I-1 , 2VJ, before me, jo-04' , a Notary Public in and for said State, personally appeared- a-:. xj-y--who proved to me on the basis of satisfactory evidence to be the personkg) whose nam Is re subscribed to the within instrument and acknowledged to me that ie she/they executed the same inhis er/their authorized capacity, and that by his her/their signaturekeB on the instrumen he perso9w, or the entity upon behalf of which the person, Wacted, 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. Notary Public i and for said State ------------------- (SEAL) JONI GROSSMAN Commission N 1942247 Notary Public - California Orange County ". M Comm. Expires Jun 26, 201 IRC\ 30209.0405\ 453979.3 9/12/2013 - 6 - 0 AORT HrL�S a � P v MIGJ�� SAN Big Canyon Reservoir PA Cr FfC VX7 O,q Reservoir Site Boundary ® Maintenance Yard Area Harbor Day P School W ti W J pSAN JOAQUZN HILLS RD N Q Exhibit A Depiction of Maintenance Yard Area z� Ao 0 R E ?T HILLS P � 0 Mi��B > SpN Big Canyon Reservoir A Ac1Frc VrE tv OR Reservoir Site Boundary ® School Drop -Off Area 3� Harbor Day P School W ti H W J kSAN JOAQUIN HILLS RD N Q F Exhibit B Depiction of School Drop -Off Area EXHIBIT C DESCRIPTION OF BENEFITED PROPERTY The following real property in the City of Newport Beach, County of Orange, State of California, more specifically described as follows: Harbor View Shopping Center: Parcels 2, 3 and 4 as shown on a Map filed in Book 35, Page 1 of Parcel Maps, in the Office of the County Recorder of Orange County. 2: Bavview Apartments: That portion of Block 96 of Irvine's Subdivision as shown on a Map thereof recorded in Book 1, page 88 of Miscellaneous Maps, in the Office of the County Recorder of Orange County, which is shown as Parcel 1 on a Parcel Map recorded in Book 35, Page 2 of Parcel Maps in the Office of the County Recorder of said County. 3. Bayport Apartments: That portion of Block 93 of Irvine's Subdivision as shown on a Map thereof recorded in Book 1, page 88 of Miscellaneous Maps, in the Office of the County Recorder of Orange County, which is shown as Parcel 1 on a Parcel Map recorded in Book 35, Page 1 of Parcel Maps in the Office of the County Recorder of said County. 4. Baywood Apartments: Parcels 1 and 2 as shown on Parcel Map No. 84-705 filed in Book 189, Pages 6 through 16, inclusive, of Parcel Maps, in the Office of the County Recorder of said County. JRC\ 30209.0405\ 453979.3 9/12/2013 ATTACHMENT CC5 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 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 2 100 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 1 0 N v W o ATTACHMENT CC6 iati4193 164527 THIS INDENTURE made and entered into this zf`— day of December, 1957, by and between THE IRVINE COMPAUr, a corporation organized and existing under the laws of the State of West Virginia (hereinafter referred to se "IRVI:v'E"), and the CITY OF NEWPORT BEACH, a municipal tot'= poration organized and existing inthe State of California under and by virtue of a charter duly ratified and sp- proved (hereinafter sometimes referred to as "BF]1 PO� BEACH" or "said City"), W I T N E S S E T H I. For and in consideration of and in exchange for the conveyance of the rights and the performance of the covenants and agreements to be performed by NEWPORT BEACH and its successors and assigns in interest, as hereinafter, set forth in Section II hereof, but without monetary con- sideration, IRVINE hereby grants to NEWPORT BEACH, upon and sub}act to the reaervatlons, covenant.: and restrictions heretnafter set forth, and for the uses and purposes here- inafter designated, the following property, to wit: A. The following described parcel of land, con- taining 46.68 acres, more or lase, (hereinafter sometimes referred to as the "reservoir site"). particularly de- scribed as follows: An irregular parcel of land situated within theC3 County of Orange, State of California and being a portion of Blocks 92, 93, 96 and 97 of the Irvine's Subdivision es per Miscellaneous Map Book No. 1, page 88 of records, Orange County, California, and said irregular parcel of lend being described as follows: - 1 - NCommencing at the intersection of said Blocks 92, 93, 96 and 97; thence N. 49°25'31" Y., along the line wo of intersection of said Blocks 92 and 93, 687.21 feet to a point in the easterly right-of-way line of an easement to the Metropolitan Yater District, as recorded in Book 1211, page 317 of said recorda, mid point being the true point of beginning; then" N. 50°25059" E., 559.18 feet, along said easterly r1gbt-of-way line to an angle point in said easterly right-of-way line; thence along said easterly right-of-way line N. 45019159" E., 76.12 feet; thence leaving said right-of-way line, S. 55019'42" E..- 982.66 feet;, thence S. 6°05'59" W., 1037.47 feet; thence S. 48°21'42' w., 450.69 feet; thence N. 75°19'42" Y., 805.00 feet; thence N. 18059126" W., 1097.02 feet to the said easterly rilPt-of-wsy line; thence along said easterly right-of-way line, N. 50025'59" E., 315.46 feet to the true point of beginning. I 1 he basin of hearings used in the above deserip- 1 tion is theTsaid southeasterly line of the Metropolitan Yater District Right -of -Way which bears N. 50025159" E., said Right -of -Way line being recorded as bearin N. 49°41'10" E, as used by the Metropolitan Water trict of Southern California. SUB.TECT TO easements and rights of!of recon The foregoing conveyance Is made and accepted ' upon and subject to the following covenants and restric- tions running with the reservoir site, and with the water storage and other appurtenant works and facilities to be _ constructed and maintained thereon an hereinafter provided, which covenants and restrictions shall run in favor of and . shall be enforceable by IRVINE and its Successors and . assigns, and $hall be binding upon and enforceable against NEWPORT BEACH and its successors and assigns, to wit: . That said City shall cause to be constructed in . and upon said reservoir site a water storage' reservoir with a storage capacity of not less than 600 acre feet and . appurtenant works and facilities in accordance with the . plans therefor as approved by said City, and that after . said water storage reservoir and appurtenant works and facilities shall have been so constructed and installed in and upon said property, said City and its successors and 2 _ i ien4143 ria397 asslgna shall muss the Sams to be maintained and operated 1 for the purposes heib sa renaoveprovided, and for no other r Or use or purpoa. B. Perpetual etaements in and along the follow- ing described @trips of land for the construction, in- stallation, replacement, repair, maintenance and operation of pipe lines and appurtenant works and facilities for the transmission of water from the reservoir site hereinabove described (hereinafter sometimes referred to as the "pips line easements"), said easements being particularly , described as follows: Parcel 1: A strip of land thirty (30) feet in width, altusted within the County of Ora e, Stpto of California and being a portion of Bloeka ,_.55 and 9 of the Irvine's Subdivision as re- s County , page 88 of'Hiseeflaneous Haps, Records of said County and said strip of land lying fifteen (15) feet on either aide of the following described center- line: Commencing at the intersection of the centerline of Marivenue; as said marine Avenue is described In a deed ra Zreodad in Book 830, page 217, Official Re verde of said County, with the centerline of the Right -of -Way of Coast Highway (U.S. 101), as it now exists 100 feet wide; thence S. 77"37'58" E„ along said centerline,of Coast Highway (said centerline of Coast Highway being recorded as bearing S. 78"33107" E.), a,dlntance of 62.01 feet to the point of beginning; thence N, 12022102" E.,, at right Q axg len to said Coast Highway Cent erl3ne, a diatnnce of A 8.63 feet to the beginning of a non -tangent curve, concave (' to the southeasterly and having a radius of 1185 feet, a "dial line from said curve bearing 5,.72"37'58" E,; thence northeasterly along said last-mentioned curve through a central angle of 17"20'22", an arc distance of 358.62 feet to the and of the Curve; thence tangent to said last-mentioned curve, N. 34042'24" E., 2147.70 feet to the ' beginning of a tangent curve concave to the southeasterly and having a radius of 1185 feet; thence northeasterly along said lent -mentioned curve through a central angle of 17°41133". an are distance of 365.92 feet to the and of the curve; thence tangent to said last-mentioned curve, j N. 52°23'57"'E.. 328.12 feet o the beginning of a tangent { Curve concave to the northwesterly and having a radius i of 1215 feet; thence northeasterly along said last- mentioned curve through a central angle of 18020100", an are distance of 388.77 feet to the and of the curve; thence tangent to said last-mentioned'eurve, N. 34003'57" yI i eea4143 rtu398 N E., 717.23 feet to the beginning of a tangent Curve Oat - cave to the southeasterly and having a radius of 1185 N feet; thence northeasterly along said last-mentioned dune W through a central angle of 9°26143", an are distance of 195.35 feet to the end of the tune; thence tangent to said last-mentioned curve, W. 43030140" S., 501.91 test to a point which is 15 fast, measured at right angles, from the centerline of a proposed 100 -foot right.ot-way for a County road, known as Jamboree Road Worth, at Cowell - Road Department Station 60+10.40; thane S. 46629120" S., at ri ant angles to aforementioned canterline, a distance of 499 67 test to the beginning of a tangent aury concave to the northeasterly and having a radius of 480 teat; thence southeasterly along said last -mentioned -tutus through a central angle of 34°18'06", an are distance of 287.36 fest to the and of the curve; thence tangent to said last-mentioned curve, S. 80°47'26" E., 400.41 feet to the beginning of a tangent curve concave to the south- esterly and having a radius of 1342 fest; thence south- . sterly along said last-mentioned curve through ■ dentral angle of 56058'10", an are distance of 1334.36 feet to the and of the curve; thence tangent to said last-mentioned iurvs, S. 23°49716" E., 349.05 feet to the beginning of a Tangent curve concave to the northeasterly and having a radius of 805 feet; thence southeasterly slonK said last- msntinnsd curve through a central angle of 17 49100", an 'arc distance of 250.32 feet to the end of the curve- Ithance tangent to said last-mentioned curve, S. 41638'16" E., 413.19 -feet to the beginning of a tangent curve con- cave to the southwesterly and having a radius of 1090 feet; thence southeasterly along said last-mentioned curve through a central angle of 26°05'00",.. an are distance of 496.21 feet to the and of the curve; thence tangent to said last-mentioned curve, S. 15°33'16" E., 347.32 feet to the beginning of a tangent curve concave to the north- aaeterly and having a radius of 910 feet; thence south- eeaterly alongg said last-mentioned curve through a central eng le of 35 *14'0' an arc distance of 559.61 feet to the end of the curve; thence tangent to said last-mentioned curve S. 50°47'21" E., 645.79 feet to a point on the northerly sub -tangent of a curve in MacArthur Boulevard, ae it now exists 100 feet wide, said last=mentioned point being S. 51°55'32" W.', 410.57 feet from the beginning of said highway curve having a station of 297+01.93; thence continuing S. 50°47121" E from..said last-mentlonsd point, 184.80 feet to the beginning of a tan Curve concave to the northerly and having a radius of 600 feet; thence 4asterly along said last-mentioned curve through a central angle of 33020115", an are distance of 349.11 feet to the end of the curve; thence tangent to said last-mentioned curve, S. 84007'36" E., 718.10 feet to an angle point which is 15 feet, measured at right angles, from the Metropolitan Water Diatrict 15 -foot Easement, as recorded in Book 1211, page 317, Records of said County, which pe are N. 50025'59" E.; thence N. 50°25159" E., parallel with and 15 feet distant, measured at right angles, from the southeasterly right-of-way line of said Metropolitan 1 Water District Easement, a distance of 760.91 feet to the }most westerly boundary line of a proposed parcel of land -4- ti b ��P� C' 6 sz� w14143 Pw399 for a reservoir site known as Parcel R, which bears N. 18°59126" W. The aide lines of the above described strip of land are to be prolonged or shortened so as to terminate at their points of intersection and so as to terminate at the northerly rigght-of-way line of avid Coast Highway, which bears S. 77°37'58" E. and so as to terminate at the said most westerly boundary line of Parcel It, which bears N. 18°59'26" W. Excluding that strip of land within said MacArthur Boulevard right -of -wap. The basis of bearings used in the above de- scription is the said southeasterly right-of-way line of the Metropolitan Mater Diatri Basement which bears N. 50025'59" E., said rigght-o ay line being roc rded as bearing 17. 49041110" B. .. r&' .I! Parcel 2: A strip of len frty (30) feet in , width, situate within the County of i Orange, State of California and being a portion of Block ( 94 of the Irvine's Subdivision as recorded in Book 1, page 88 of Miscellaneous Maps, and being a portion of Marine Avenue, as said Marine Avenue is described in a deed recorded in Book 830, page 217, Official Records of said County and said strip of land lying fifteen (15) feet on either aide of the following described centerline: j Comnencing at the intersection of the centerline rf of said Marine Avenue with the centerline of the Right -of - Way of Coast Highway (U.S. 101), ae it now exists 100 feet wide; thence S. 77°37'58" E., along said centerline of Coast Highway (said centerline of Coast Highway being re- corded as bearing S. 78033107" E.), a distance of 87.07 feet to the point of beginning; thence S. 12°22'02" W., at right angles to said Coast Highway centerline, a die- ters of 211.08 feet to the beginning of a tangent curve �\ concave to the easterly and having a radius of 380 feet; 1\!j thence southerly elo% said last-mentioned curve through a central angle of 57 42133", an are distance of 382.74 feet to the end of the ourva• thence tangent to said last- ) mentioned curve, S. 450,20131' E., 239.04 feet; thence S. 61°40'54" E., 90.04 feet; th once S. 22°32142" W., 65 feet 1 to a line which bears N. 67°27'18" W. The aide linea of the above described strip of land are to be prolonged or shortened so as to terminate at their points of intersection and 30 as to terminat at thesoutherly right-of-way line of said Coast Highway, which bears S. 77037'58" E. and so as to terminate at the said line which bears N. 67027118" W. . The basis of bearings used in the above descrip- tion is the said centerline of Coast Highway, which bears S. 7jj°37'58" E., said centerline being recorded as bearing S. 78°33'07" E., as used by the California State Highway Department. SUBJECT TO easements and rights of way of record. 5 - v .n A' I' , a a - . loq"U ; ' - ettu43 twVA) Auto C. A perpetual easement Ingress and egress to and from the above described over and along the for road purpos a for reservoir sit herein- followi scribed / ) strip of land (hereinafter some referred to the G 51 "access road easement to -.v. I Y�� A strip of land forty (40) feet in width, situated within the County of Orange, State of California ` and being a portion of Blocks 94 and 96 of t e vine's_ Subdivision as recordid In Book 1, page 06 or Miscella- rivous Maps, Records of eald'County, and said strip of land lying twenty (20) feet on either side of the following described centerline: C oessenoing on the centerline of MacArthur• Boulevard, (as it now exists 100 feet wide) at Highway Station 294+35.95, which is M. 51°55'32^ E. along said I emntIoned centerline, a distance of 266.18 feet from the beginning of a tangent curve of said boulevard, said curve bei concave to the southeasterl�v and having a radius of 2000 feet; thence S. 38.04'26' E., at right ■ngles to said last-m6ntioned centerline, a distance of 50.00 feet to the point of beginning; thence continuing S. 38°04'28" E., 160.00 feet; thence S. 47052'01" E., 1119.79 feet to the beginning of a tangent curve concave tothenortheasterly and having a radius of 400 feet; thence southeasterly along said last-mentioned curve through a central angle of 23°12100", an arc distance of 161.97 feet to the and of the curve; thence tangent to said loot-mentlamed curve, S. 71004'01" E., 605.07 feet to the beginning of a tangent curve concave to the south- westerly and having a radius of 610 feet; thence south- sseterly along said last-mentioned curve through a central angle of 52°OIF'.35", an are distance of 554.43 feet to the endof the curve; thence tangent to said -last-mentioned curve, S. 18.59'26" E., 11S.92 -feet to the beginning oI a tangent curve concave to the northeasterly and having a radius of 378.98 feet; thence southeasterly alongg said last-mentioned curve through a central angle of 56°20'16", an are distance of 372.64 feet to the and of the curve; said last-mentioned and of curve being S. 14°40'18"-W. along a radial line of said last-mentioned curve, a dis- tance of 20.00 feet from the southwesterly corner of a proposed parcel of land for ■ reservoir site, knowntas, F Parcel R; thence tangent to said last-mentioned curve, S. F 75019'42" E., parallel with and 20.00 feet distant, measured at right angles, from the southwesterly boundary I of said Parcel R, a distance of 805.00 feet to a point which is S. 14040118" W. and 20.00 feet distant from the most southerly corner of said Parcel R. m414a ►Aar The aide lines of the above 6escribed strip of land are to ba prolonged or ahorted so as to terminate C at their enpointe of intersection and so as to terminato at cf the southeasterly right-of-waz line of sold MacArthur Houlevs'd' which bear@ N. 51°55'32" S. and so ae {o Q terminete it the said line which bear$ S. U040,18" M. cc throurh the moat southerly corner of said Parcel S./ C The basis of be aringa used in the above descrip- tion to the said centerline of MacArthur Boulevard which bears N. 51°55'32" S. said centerline being recorded as bearing N, 51°0745" ae used by the California Divi- - alon Of Highways. The conveyance of the pipe line easements and th$-access road easement hereinabove described, and each of them, is made and accepted upon and subject to the following reservations by and In favor of IBVIIB and its successors and assigns, to wit: (1) The right to construct, install, replace, maintain, operate and use over, under, across and along each of said easements, roads and street$, and pole lines, pipe lines and other facilities for the transmission of oil, water, sewage, electricity, telephone and other pur- poses not inconsistent with the use Of said easements by laid City, (2) The right to use the surface of said pipe line easements, or any part thereof, for grazing, farming and any other purpose that ahall not prevent or interfere with the use of said easements by said City. (3) The right to the Joint use of said access road easement, or any part thereof, for road purposes. (4) The right At any time to relocate said access road easement, or any part thereof, and to provide and convey to said City, subject to the lama reserva- tions, covenants and restrictions herein provided, another convenient route or routes therefor without expense to 7 A tiJ J -- r oa4143 tAcA02 N Z+ said City, in any of whiff events all rights of said City 0 N i in and to the abandoned portion or portions of said ease - U p ment shall terminate and said City shall, in writing, Fquitclaim all rights in said abandoned portion or portions of said easement to IRVINE. (5) The right to dedicate all or my part of said access road easement or any relocation thereof for public road purposes. The conveyance of said pipe line easements and said access road easement, and each of them, also in made and accepted upon and subject to the following covenants and restrictions which shall run with each of said ease- ments, in favor of and enforceable by IRVINE and its successors and assigns, and binding upon and enforceable against NkNPORT BEACH and its suctessors and assigns, to wit: (a) That the water transmission pipe lines to be constructed and installed in and along said pipe line easements shall be burled at the depth or depths as shown on the written plans therefor heretofore approved by IRVINE and NE'dPORT BEACH and filed in the office of the Director of Public Works of said City. ' (b) That each of said easements shall be used for the purpose hereinabove not forth in paragraphs H and C, respectively, and for no other use or purpose. (c) That the use of said access road easement shall be limited to the authorlted agents of the respective parties hereto and shall not be opened or dedicated to use — ` by the general public except by and with the written con- sent of IRVINE. —e— r soA143 rat403 xI. a In consideration of and in exchange for the gA. conveyances hereinabove set forth in Section I hereof, NUM? BEACH hereby grants to IRVINE and its successors and assigns in interest, the right at all times to take water from any of the pipe lines used for the transmission of water from the reservoir hereinabove referred to in Section I, at the same rates and subject to the same rules and regulations as may be established from time to time by NEWPORT BEACH for its water consumers within its city limits, and the right to transport the water so taken to and to "a the Same on the lands of IRVINE, or any part thereof, lying within the present boundaries of Coastal Municipal '.later District but outside of the present 1 boundaries of the cities of Newport Beach and Costa Mesa and Laguna Beach County Water District, subject, however, to the provisions of paragraph C of this Section II. B. NEWPORT BEACH further agrees to install and thereafter maintain outlets in said water pipe lines for F the delivery of water to IRVINE as hereinabove provided, i j at such points thereon as shall be designated by IRVINE and as Mall be approved by NEWPORT BEACH and to install and thereafter maintain at each of said points of delivery a meter for measuring the quantity of water taken by IRVINE therefrom, and IRVINE agrees to pay to said City the cost of installing said outlets and meters, and IRVINE, at its expense, and without any expense to said City, will install and maintain the pipe line for the transportation of the water taken by IRVINE from each of said points of i delivery. M. U am4143 rw404 C. All water taken by IRVINE as hereinabove provided shall be used by IRVINE and/or water "Sara or consunere on any, part of the lands of IRVINE hereinabove designs ted in paragraph A of this Section II, and not elsewhere; provided, that if and when any portion of said lands is annexed to any municipality or to Laguna Batch County water District and water for such annexed land is available thereto by or through any of said public agencies, the rights of IRVINE to use water taken as afore- said on such annexed land shall terminate; and provided further, that if and when all of the lands of IRVINE here- inabove designated shall be so annexed and water shall be available thereto as aforesaid, all rights of IRVINE to take water as provided herein Shall terminate. The foregoing indenture is made and executed pursuant to and for the purpose of carrying into effect the written agreement dated April 3, 1957, between IRVINE and NLWPORT BEACH and approved by the qualified voters of said City. IN WITNESS VEBREOP, IRVINE has caused this in- denture to be executed by its officers thereunto duly authorized by resolution of its Board of Directors, and `) NEWPORT BEACH has caused this indenture to be executed by rr its officers thereunto duly authorized by resolution of E, i I (1 10 - ,:.., -/6.[•5'.2 : -�.:. _ .:, .: eocc4143 mct405 the City Co"011 of said City, THE IRVINE COMPANY, e corporation By /°i sG✓/g s...0 as an CITY CP NEWPORT BEACH By ayor Attest: y erc APPROVED AS TO FORN City Attomey o s y of Newport Beach 4143 r 4tra a r STATE OF CALIFORNIA ) r� COOM7 OF ORANOR ) ae On December ul , 1957, before me, the under- aigmd, a Notary Public In and for said County and State, personally appeared MYFORD IRVINE, known to me to be the Maiden, and 6MA!1'PL4lf,' known to me�ioT>e the'dN r..�•a-Net*5..7 Secretary of the Corporation that executed the within r4 instrument and (mown to me to be the persona who executed f4 the within instrument on behalf of the Corporation therein named, and acknowledged to me that such Corporation exe- cuted the within instrument pursuant to its By -Laws or a resolution of its Board of Directors. WITNESS my hand and official mea]% otqryl cubPublic in an or- said County and State M, Ci 40 6µn on,M, n. Iwt NOIAf1T PUBLIC in and fw the --omit p of STATE OF CALIFORNIA ) ) ee COUNTY OF ORANGE ) On December 11,,�� , 1957, before me, the under- signed, a Notary Public and for said County and State, personally appeared DORA 0. HILL, known to me to be the Mayor, and MAROERY SCHROODER, known to me to be the City Clerk of the City of Newport Beach that executed the within instrument, and known to me to be the persons who executed the within Instrument on behalf of said City of Newport Beach, and acknowledged to me that said City executed the within instrument pursuant to its charter and a resolution of the City Council of said City. WITNESS my hand and official se of YC c n an or as County and State w, l:emmi,iron tivin, OWba 141W NOTAf1Y POIi11C in and fortbe '.nunlc of flrnngc, �trte of Calif. 12 - 6 LS. - tU141" =407, CERTIFICATE OF ACCEPTANCB This is to certify that the interest in nal property conveyed by the indenture dated December .s . 1957, from the Irvine Company, a Nast Virginia corporation, to the City of Newport Beach, a political corporation, Is hereby accepted by order of the Council of the City of Newport Beach, on December 9, 1957, and the grant" Consents to the recordation thereof by its duly authoritsd officer. BY, DHILL DOHA 0. Nayor �em41C 1k14kW8 FMMMION No, 4716a N 21� A RE.9OLCTICN Or THS COC80IL @ TNS OM Or N WCM c. SII BRACH AMOMING THE MMUMIOU OF AN DND➢Rt n W :o BMW= THE IRV= OWOANT AND TIM Orry or Nornn a NfACH Ip ACOONDtNos N1TH TBN AORXD mm 6i: nRu 3, 1957 BNixant THAT aaoasf AND tM CIlT: vel 8 II wmm", on Apr" 3. 1957, the D "M compass and the My 91 Newport fts" entered a Contra*% in faion aha freta CaWM rife 10 convey a reservoir aite, Casemate for water ttantilessi p Ilms 11 appurtaaant works and easements for roabye to the city at 12 awport Beach; and 13 I NMM", the wa3ified enter* voting at a muniOlpal else - 10 1400 approved that agrewaat dated Apr" 3, 19571 god WIMR M,;dn Rntheranoe of that agreement tte City S• now I: awarding the initiat contract for the construction of the I"Wvoirl 17 L: 18' VNUZAS• the D+riaf C0lpagy ha* prepared and submitted an e 19 Fndenture abiah will convoy tam land dad waauauts to the City in 20 ordmoe with the eQamea% of April 3, 19571 21 NOW, TUXRXPM..� IT ZUMVXD that an soon u the omtreot 22 or the construction of the reservoir is awarded. the nww god City 23 ark be authorised amd directed to esg*nte the indenture Coaenr- 24 try with the Irving Caatrinyl i 25 1 ER IT YUNfm MMVED %het the NRyor is autharlpd and 26 directed to accept the iMmntWO on behalf of the City and to anoute 11 27 jPnd attach a certificate of acceptance go that the Indenture may be 28 �aCorded in the County Recorder's otftas. 29 30�( Thio resolution was adopted at a regular meeting of the 31 ii CaMoll of Newport Beach on the 9 c4 day of paoambar. 1957 32by the following votes i II it J f_S Y NE20P61I01 , ✓/� i 0b IRE CIA 06 Y6NbOW 1 I p4xun w.a�n nu ne7p9 i T - --- — eocc4143 roc M w 1 AM, QCOIOILIEOfy(�AI,•+ I Sr IIIsa BSB, QdUfOSiJ®1_A-<M r AGSM 6d71 nMW 1e 19 20 21 22 23 2411 OWNFAM AT fAWAW OF 251 I ou,4143 recE395�� t 26DEC S 0 1957 IiAT.. MIN■. A�Tp--(1p%:'�...M 2711 Nr•. G/�IiT�N1A 28I' 29 FREE 30I� fl, I 32 jl „ 2• 1 4 r M AAW: COUNCILMEN klildrr . . .......... ... . ..... ..... . ......... Dated thi&. 18th December........_. 57 I ............ . ... Jet go. ........... . .......... lqt� ca=,= lad, lowle a 'o w4143 F-ACE410 rr s. STATE OF CALWON" OOUKtY OF ORARN OTY OF Nr*vm KACN I. ........ nMPry BNE.g.m4K..................................... cdy Ciatial as Cored New km& CoMomis. do WW" cw* " flis I .. ...... 3Al.q!Rtl9.B ........ Nw- ...4716 ......... ..... .......... ..... — doly ted -vAodr Ww" passed. and sploomed br A@ City Cartel of Go COY of Nvew %&A Cal4asia. 0 a NOW eastag of "W Car CA -No hem do as ft9AW Krati-9 PIKS *WWC " 11110 .... Of .......... by *a eals; AYH: COUNCILMEN .............. H.ar.t MacKly., -S..t.o.dd.a.r.d ...... .... ....................... I ............ • None NMS: COUNCILMEN ........... ...................... ... . .... .... . .... .. ................ ...... AAW: COUNCILMEN klildrr . . .......... ... . ..... ..... . ......... Dated thi&. 18th December........_. 57 I ............ . ... Jet go. ........... . .......... lqt� ca=,= lad, lowle a 'o ATTACHMENT CC7 RESOLUTION NO. ZA2014-016 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH APPROVING MINOR USE PERMIT NO. UP2014-006 FOR A STORAGE BUILDING LOCATED AT 3300 PACIFIC VIEW DRIVE (PA2014-031) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by the City of Newport Beach, with respect to property located at 3300 Pacific View Drive, and legally described as Block 92 and portions of Blocks 93, 96, and 97 of Irvine Subdivision Tract, requesting approval of a minor use permit. The applicant proposes a single -story storage building at the westerly side of the Big Canyon Reservoir property. The proposed building footprint will cover 9,000 square feet of land area. Half of the building will be enclosed (approximately 4,500 square feet) and used as vehicle storage bays. The remaining half would be unenclosed, but covered, and used for the storage of parts and supplies. Other improvements proposed as part of the project include new landscaping, asphalt paving, and lighting. 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 May 15, 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 15303, Article 19 of Chapter 3, Guidelines for Implementation of the California Environmental Quality Act) under Class 3 (New Construction or Conversion of Small Structures). 2. The Class 3 exemption consists of construction and location of limited numbers of new, small facilities or structures including but not limited to accessory structures such as garages, carports, patios, swimming pools, and fences. The proposal is to construct a single -story storage building that is accessory to existing facilities for the purpose of storing vehicles and supplies. In addition, the project site is located in an urbanized area, not adjacent to an environmentally sensitive area, and does not involve the use or storage of hazardous substances. Zoning Administrator Resolution No. ZA2014-016 Page 2 of 8 SECTION 3. REQUIRED FINDINGS In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) 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: A-1. The General Plan designates the site as Public Facilities (PF) which is in intended to provide for areas appropriate for public facilities, including community centers, cultural institutions, government facilities, libraries, public hospitals, public utilities, and public schools. A-2. The site is principally used as a reservoir and maintenance yard for the City's Municipal Operations Department field crew. The City -owned government facility supplies water to residents of Newport Beach. A-3. The addition of a new storage building does not change the principal use of the property as a government facility, which is consistent with the General Plan. A-4. The subject property is not part of a specific plan area. 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: B-1. The proposed storage building will be accessory and secondary to existing facilities on-site which includes an office. Zoning Code Section 20.26.020 conditionally permits accessory structures in the PF Zoning District subject to the approval of a minor use permit. B-2. The proposed storage building is approximately 22 feet high, which is less than the 32 -foot flat roof height limit applicable to the property, and complies with all other provisions of the Zoning Code and Municipal Code. B-3. All lighting mounted to the exterior of the building will be full cutoff fixtures for the purpose of directing light downward to reduce offsite visibility and glare, consistent with Zoning Code Section 20.30.070 (Outdoor Lighting). Zoning Administrator Resolution No. ZA2014-016 Paqe 3 of 8 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: C-1. The proposed storage building will be located approximately 150 feet from the nearest property line, is one-story in height, will have a footprint similar to other existing buildings on the site, and will operate consistent with existing facilities. C-2. The proposed storage building will be used for vehicle and supply storage. There will be no hazardous materials or substances stored in the building. The design of the building with an opening on one side will be buffered and screened from nearby residential properties by new landscaping. C-3. Operation within the storage building will typically occur during normal business hours (7:30 a.m. to 5:30 p.m.) which is compatible with neighboring residential and religious facility uses. C-4. As conditioned, the site shall not be excessively illuminated, and should the illumination create an unacceptable negative impact on surrounding land uses or environmental resources, the Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. C-5. Pole mounted lighting adjacent to paved roadways will only be illuminated when necessary for emergency purposes. 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: D-1. The subject property has operated as a reservoir since construction in 1958. D-2. A mobile home, single-family residence, and two detached garages previously occupied the location of the proposed storage building. The project site demonstrated that it was physically suitable to accommodate the previous use that was of similar size and footprint and provided sleeping, sanitation, and food preparation facilities. The proposed storage building will provide one accessible restroom and be used only for storage; therefore, the existing design of the site should be able to adequately accommodate the use. Zoning Administrator Resolution No. ZA2014-016 Paae 4 of 8 D-3. The storage building will be used to store existing equipment and supplies currently scattered throughout the Big Canyon Reservoir property and the level of workers visiting the site is not anticipated to change. D-4. The Public Works Department, Building Division, and Fire Department have reviewed the project proposal and provided conditions of approval so as to maintain adequate access, public services, and utilities to the existing development. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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. Facts in Support of Finding: E-1. The proposed storage building is intended to be accessory to existing facilities on the site. E-2. The proposed location of the storage building is in an area and location that was previously developed with structures, and is approximately 150 feet from the nearest neighbor which provides ample distance so as to not endanger persons residing or working in the neighborhood. E-3. There will be no hazardous materials or substances stored in the building which might otherwise constitute a hazard to the health or general welfare of persons residing or working in the neighborhood. E-4. Landscaping proposed along the westerly and southwesterly side of the property will protect and buffer neighboring residents so as to not jeopardize the orderly and harmonious growth of the surrounding neighborhood. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No. UP2014-006, 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 14 days after the adoption of this Resolution 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. Zoning Administrator Resolution No. ZA2014-016 Page 5 of 8 PASSED, APPROVED AND ADOPTED THIS 15t" DAY OF MAY, 2014. LIM Zoning Administrator Resolution No. ZA2014-016 Paqe 6 of 8 EXHIBIT "A" CONDITIONS OF APPROVAL 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval (Except as modified by applicable conditions of approval.) 2. 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. 3. This Minor Use Permit may be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 4. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Minor Use Permit or the processing of a new Minor Use Permit. 5. 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. 6. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City - adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. 7. Prior to issuance of grading permits, the applicant shall prepare and submit a Water Quality Management Plan (WQMP), geotechnical report, and a drainage and hydrology report for the proposed project, subject to the approval of the Building Division. The WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur. 8. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape plan. Prior to issuance of building permits, the landscape plan shall be revised to include additional landscaping to screen the storage building from the Canyon Crest Complex property. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. Zoning Administrator Resolution No. ZA2014-016 Paqe 7 of 8 9. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Director of Community Development, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 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 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. Construction of the structure shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise -generating construction activities are not allowed on Sundays or Holidays. 12. 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 Minor Use Permit. 13. Fire apparatus access roads pursuant to Newport Beach Guideline C.01 and C.02 shall be provided for every building. The fire apparatus access road shall extend to within 150 feet of all portions of the building and all portions of the exterior walls of the first story of the building as measured by an approved route around the exterior of the building. 14. A fire apparatus access road shall be provided for the structure and the roadway shall have an unobstructed width of not less than 20 feet in width. The road shall be all weather and be able to support 72,000 pounds. 15. Dead end fire apparatus access roads in excess of 200 feet in length shall be provided with an approved cul-de-sac for turning around fire apparatus without backing up. 16. Vehicle access gates or barriers installed across fire apparatus access roads shall be in accordance with the Newport Beach Fire Department Guidelines and Standards C.01. The minimum width of any gate or opening necessary or required as a point of Between the hours of TOOAM and 10:OOPM Between the hours of 10:OOPM and TOOAM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 5OdBA Commercial Property N/A 65dBA N/A 60dBA 11. Construction of the structure shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise -generating construction activities are not allowed on Sundays or Holidays. 12. 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 Minor Use Permit. 13. Fire apparatus access roads pursuant to Newport Beach Guideline C.01 and C.02 shall be provided for every building. The fire apparatus access road shall extend to within 150 feet of all portions of the building and all portions of the exterior walls of the first story of the building as measured by an approved route around the exterior of the building. 14. A fire apparatus access road shall be provided for the structure and the roadway shall have an unobstructed width of not less than 20 feet in width. The road shall be all weather and be able to support 72,000 pounds. 15. Dead end fire apparatus access roads in excess of 200 feet in length shall be provided with an approved cul-de-sac for turning around fire apparatus without backing up. 16. Vehicle access gates or barriers installed across fire apparatus access roads shall be in accordance with the Newport Beach Fire Department Guidelines and Standards C.01. The minimum width of any gate or opening necessary or required as a point of Zoning Administrator Resolution No. ZA2014-016 Page 8 of 8 access shall be not less than 14 feet unobstructed width. This minimum width may be increased depending on the length of the approach. 17. An address shall be placed immediately adjacent to all doors that allow fire department access. In no case shall the numbers be less than four inches in height with a one-half inch stroke. 18. This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code. 14 tee - RJe -_ iJ s. R •f Joe I