HomeMy WebLinkAbout06 - Harbor Day School Parking Lot Lease AgreementCITY 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.
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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
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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
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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
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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.
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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
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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.
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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
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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.
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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:
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(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.
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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.
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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
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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
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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
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obligation within ten (10) calendar days after receipt of written notice by Tenant to City
specifying the nature of such default. City shall also be in default if it commences
performance within ten (10) calendar days but fails to diligently complete performance.
In the event of City's default, Tenant may:
(a) Upon thirty (30) calendar days written notice to City, cure any such
default, and City shall reimburse Tenant the amount of all reasonable costs and
expenses incurred by Tenant in curing the default; or
(b) Terminate this Agreement if City's default materially interferes with
Tenant's use of the Premises for its intended purpose and City fails to cure such default
within thirty (30) calendar days after a second written demand by Tenant.
18. EVENT OF BANKRUPTCY
18.1 If this Agreement is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Sections 101 et seq., or any similar or
successor statute ( "Bankruptcy Code "), any and all monies or other consideration
payable or otherwise to be delivered in connection with such assignment shall be paid
or delivered to City, shall be and remain the exclusive property of City and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other consideration constituting City's property
under this Section not paid or delivered to City shall be held in trust for the benefit of
City and be promptly paid or delivered to City.
18.2 Any person or entity to which this Agreement is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to have
assumed all of the obligations arising under this Agreement on and after the date of
such assignment, including the obligation to operate the Parking Lot.
19. NOTICES
Any notice, demand, request, consent, approval or communication that either
party desires or is required to give shall be in writing and shall be deemed given three
(3) calendar days after deposit into the United States registered mail, postage prepaid,
by registered or certified mail, return receipt requested, or one (1) business day after
deposit with a reputable overnight courier for overnight delivery. Unless notice of a
different address has been given in accordance with this Section, all notices shall be
addressed as follows:
If to City, to: City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
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If to Tenant, to: 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.
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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.
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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.
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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
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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
EXHIBIT "B"
Premises' Depiction & Description
Harbor Day School Page B -1
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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
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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
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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 litre it
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 Not'a 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 nameK)isilare
subscribed to the within instrument and acknowledged to me that ie she /they executed the
same in his 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 -
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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
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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 in the 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 3 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 herainaftar,
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 -
l`
NCommencing at the intersection of said Blocks
92, 93, 96 and 97; thence N. 49 °25'31" W., 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 Water 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. 45 019159" E., 76.12 feet;
thence leaving said right -of -way line, S. 55 019'42" 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" W.,
805.00 feet; thence N. 18 059126" W., 1097.02 feet to the
said easterly rilPt- of -wsy line; thence along said
easterly right -of -way line, N. 50 025'59" E., 315.46 feet
to the true point of beginning.
Olt 1 he baeia of hearings used in the above deserip-
1 tion is the T said southeasterly line of the Metropolitan
Water District Right -of -Way which bears N. 50 025159" 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 way of recor
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 lass 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
asslgro shall muss the Sams to be maintained and operated
1
for the purposes he ib
sa "naovs provided, and for no other
r
Or use or purpoa.
B. Perpetual eaaements 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 hersinabove
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°miseeflaneous maps, 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 Harivenue; as said marine Avenue is described In a
deed ra Zr eo dad in Book 830, page 217, Official Re eorde 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, 12 022102" 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 -
p 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 18 020100 ", an
are distance of 388.77 feet to the and of the curve;
thence tangent to said last- mentioned'eurve, N. 34 003'57"
y? /
i
eea4143 rtu398
N
E., 717.23 feet to the beginning of a tangent Curve cat -
i 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 feet 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 feet; thence south -
. sterly along said last - mentioned curve through ■ dentral
angle of 56 058'10 ", 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 - mentioned 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 33 020115 ", an are distance of 349.11 feet to the
end of the curve; thence tangent to said last- mentioned
curve, S. 84 007'36" 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. 50 025'59" E.; thence N. 50°25159" E., parallel
with and 15 feet distant, roe seared 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
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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 R, which bears
N. 18 °59'26" W. Excluding that strip of land within said
MacArthur Boulevard right -of -way.
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.
50 025'59" E., said rigght -o ay line being roc rded as
bearing 17. 49 041110" B. .. r&' .I!
Parcel 2: A strip of lan 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 alon 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 lines 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
the southerly right -of -way line of said Coast Highway,
which bears S. 77 037'58" E. and so as to terminate at the
said line which bears N. 67 027118" 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.
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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 record id In Book 1, page 06 or Miscella-
rivous Maps, Records of sald'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
last emntioned centerline, a distance of 266.18 feet from
the beginning of a tangent curve of said boulevard, said
curve being concave to the southeasterl�v and having a
radius of 2000 feet; thence S. 38.04'26' E., at right
■ngles to said last - mentioned 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
to the northeasterly 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. 71 004'01" 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
end of 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 75 019'42" 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. 14 040118" 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 en points of intersection and so as to terminato at
cf the southeasterly right- of -waz line of sold MacArthur
Houlees'd' which burs 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" a$ 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
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oa4143 tAcA02
N
Z+ said City, in any of whiff agents 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 herainebove 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 —
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soA143 rat403
xI.
a
In consideration of and in exchange for the
gA.
conveyances hersinabove 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 hersinabove 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.
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am4143 rw404
C. All water taken by IRVINE as hersinabove
provided shall be used by IRVINE and /or water "Sara or
coneunere 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.
III.
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 NEWPORT 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 -
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,:.., - /6.[•5'.2 : -�.:. _ .:, .:
eocc4143 mct405
the City Co"011 of said City,
APPROVED AS TO FORN
City Attomey o s y
of Newport Beach
- 11 -
THE IRVINE COMPANY,
e corporation
By / °i sG ✓/g s...0
as an
CITY OP NEWPORT
BEACH
/
By
ayor
Attest:
y erc
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4143 r 4tra
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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- NSt *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 sea]%
otq ryl cub Public in an or- said
County and State
M, ri 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,,�� Y" and before me, the under-
signed, a Notary Public in 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 y c n an or as
County and State
w, l:emmi,iron tivin, OWba 141W
12 -
6
LS. -
NOTAf1Y POIi11C in and fortbe
'.nunlc of flrnngc, �trte of Calif.
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CERTIFICATE OF ACCEPTANCB
This is to certify that the interest in real 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, D HILL
Nayor
p�
4
Y
O'
-,
�em41C 1k14kW8 FMMMION No, 4716a
N 21� A RE.9OLOTICN OF TUB COC80IL @ TIM OM Or N WCM
v 3II BRACH AMOMING THE MMUM10N OF AN DND➢Rtn
W
:o
BMW= THE IRV= OWOANr AND TIM Orry or Nornn
a NfACH IX ACOONDtNCN N1TH TBN AORXD mm
6i: nRU 3, 1957 BNixant THAT aaoasr AND tM CIlT:
v�l
8 II wmm", on Apr" 3. 1957, the D "M compass and the My
91 Newport fts" entered a Contra*% in faion am frets CaWM ogee
10 convey a reservoir aite, Casemate for water trantuessim Ilms
11 appurtaaant works and easements for roabye to the city at
12 arport 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• nog
I: awarding the initW contract for the construction of the I"Wvoirl
17 L:
18' VNUZAH, 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 go"sgu% of April 3, 19571
21 NON, TUXRXPM..� IT ZUMVXD that an soon u the omtreot
22 or the construction of the reservoir is awarded. the nw w god City
23 ark be authorised and directed to esg*nte the indenture Coaenr-
24 tly with the Irving Caapanyl
i
25 1 ER IT YUNfm MMVED %het the Ngyor is authawlpd and
26 directed to accept the iMmntWO *n behalf of the City and to anoute
27 jPnd attach a certificate of acceptance go that the Indenture may be
28 �eCorded in the County Recorder's otftas.
29
30 �( This 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
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19
20
21
22
23
9:
2411 OWNFAM AT fAWAW OF
251
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26 DEC S 0 1957
IiAT.. MIN■. A�Tp--
(1p%:'�...M
2711 Nr•. G/�IiT�N1A
28I'
29 FREE
30I�
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32
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AAW: COUNCILMEN klildrr . . .......... ... . ..... ..... . .........
Dated thi&. 18th December........_. 57
I ............ . ... Jet go . ........... . .......... lqt�
ca=,= lad, lowle a
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STATE OF CALWON"
OOUKtY OF ORARN
OTY OF Nr*vm KACN
I. ........ nMPry BNE.g.m4 K...... .............. ................. 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 a ti-9 PISS *W WC " 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
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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
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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
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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
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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.
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