PARKING AGREEMENT
This PARKING AGREEMENT (the “Agreement”) is dated for reference purposes as of the ____ day of ___________, 2025, and is being entered into by and between the CITY OF SAN CLEMENTE, a California municipal corporation (“City”), and the CHABAD JEWISH CENTER OF SAN CLEMENTE, a California nonprofit corporation with its principle place of business at 168 Avenida De La Paz, San Clemente, California 92672 (“Chabad Jewish Facility”) (with City and Chabad Jewish Facility hereinafter being individually referred to individually as a “Party” and collectively as the “Parties”).
R E C I T A L S:
Chabad Jewish Facility is the tenant of that certain real property commonly known as 1306 North El Camino Real, in the City of San Clemente, County of Orange, California (the “Property”). Chabad Jewish Facility operations include use of the Property as a religious facility (“Facility”). Pursuant to applicable provisions of the San Clemente Municipal Code, Chabad Jewish Facility must have a total of seventeen (17) off-street parking spaces to operate the Facility on the Property with the proposed floor plan and seating count of 68 persons. The Property currently provides seven (7) onsite spaces and no offsite spaces, resulting in a deficiency of ten (10) off-street parking spaces.
On June 5, 2024, the Planning Commission approved an Amendment to Development Permit (AM DP) 20-399 and Minor Conditional Use Permit (MCUP) 22-430, via adoption of Resolution PC 24-014 for a major remodel to the first and second floor and a 1,479 square foot addition to the second floor, which is inclusive of the conversion of the six garage parking spaces, to bring the total building square footage to 6,650 square feet with a 68-seat sanctuary. This approval was conditioned upon the Parties entering into a nonexclusive lease agreement for ten (10) off-street parking spaces at the San Clemente public parking lot at the Bonito Canyon Park at 1304 Calle Valle, in the City of San Clemente, County of Orange, California 92672 (the “Bonito Parking Lot”) to satisfy the off-street parking requirement in accordance with Section 17.64.120 of City’s Municipal Code.
The City owns fee title to the Bonito Parking Lot. The Bonito Parking Lot is located within 150 feet of the Property and has a sufficient number of excess parking spaces to serve the needs of the Chabad Jewish Facility without impairing the primary use of the parking lot for recreational purposes at Bonito Canyon Park.
The Parties desire to enter into this Agreement for the purpose of providing Chabad Jewish Facility with a non-exclusive license for the use of ten (10) parking spaces in the Bonito Parking Lot to satisfy the off-street parking requirements set forth in the San Clemente Municipal Code and in order for Chabad Jewish Facility to expand the structure and operations of the Facility on the Property, all in accordance with and subject to the terms and conditions set forth in this Agreement.
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C O V E N A N T S
Based upon the foregoing Recitals, which are incorporated into this Agreement by this reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both Parties, the City and Chabad Jewish Facility hereby agree as follows:
Grant of License. During the Term (as defined and described in Sections 2 and 3 below) of this Agreement, the City hereby grants to Chabad Jewish Facility and its members and invitees of the Facility a revocable, non-exclusive license (“License”) to utilize up to ten (10) vehicular parking spaces (the “Parking Spaces”) in the portion of the Bonito Parking Lot depicted in Exhibit “A”, which is attached hereto and incorporated herein fully by this reference, which license shall include a right of vehicular and pedestrian ingress and egress between the Parking Spaces and the adjacent public streets and rights-of-way. Said license shall be limited to 9 a.m. until noon on Saturdays. The Chabad Jewish Facility shall separately apply for Special Event or Activity permit(s) for nonstandard activities that increase use of the Facility or generate additional parking demand, or if the Parking Spaces are needed outside the foregoing licensed hours.
Term. Subject to Section 3 of this Agreement, the initial term of the License shall commence upon the approval of the final building permit related to the expansion of the Facility (the “Commencement Date”) and shall continue thereafter for an initial term of five (5) years. Subject to Section 3 of this Agreement, Chabad Jewish Facility shall have the right to extend the initial term of the License for one (1) successive term of five (5) years. The option shall be deemed to have been exercised (and the term of the License so extended) unless Chabad Jewish Facility delivers a written notice to City at least thirty (30) days prior to the end of the then-current term of its intent to not extend the License. The initial term of the License as extended pursuant to such options (and subject to Section 3) is referred to herein as the “Term.” Termination. Notwithstanding Section 2, the Term of the License and this Agreement automatically shall terminate if Chabad Jewish Facility (or successor) does not maintain in effect a valid conditional use permit or other legally required permit or permits to operate the Facility or if Chabad Jewish Facility discontinues operation of the Facility for a period of six (6) consecutive months. In addition, and notwithstanding Section 2, this Agreement and the License may be terminated as follows: (i) Chabad Jewish Facility may terminate the License sixty (60) days after it delivers written notice to City of its intent to terminate, provided that Chabad Jewish Facility is terminating operation of the Facility as well; (ii) the City Council of City has the right by a majority vote of its membership that is eligible and qualified to vote on the issue to terminate the License and this Agreement upon a determination by the City Council that it desires to devote the Parking Spaces to a different public use; and (iii) either Party may terminate the License and this Agreement and any and all rights or obligations that exist hereunder if a court of law finds that the License or this Agreement is not valid and enforceable. The Parties agree that in the event the License and this Agreement are terminated pursuant to this Section 3, neither Party shall have any further rights or liabilities to the other with respect to the period of time after the effective date of the termination.
License Payment. Chabad Jewish Facility shall remit to the City an initial license fee of One Thousand Dollars ($1,000.00) per year, with the first payment due within thirty (30) days of the Commencement Date (“License Payment”). On each successive anniversary date of the Commencement Date, the License Payment shall be increased in accordance with the percentage increase in the Consumer Price Index, All Items, published by the United States Department of Labor for the smallest geographical area within which the City of San Clemente is located (the “CPI Index”) (or such index is discontinued, such substitute index as is most closely comparable thereto), and with said percentage increase being based upon the percentage increase in the CPI Index between the date that is fifteen (15) months prior to the applicable License Payment adjustment date and the CPI Index on the date that is three (3) months prior to the applicable License Payment adjustment. The first License Payment shall be paid in advance on the Commencement Date (as to the first License Payment), and each License Payment thereafter shall be paid on each anniversary of the Commencement Date. Payments shall be made in U.S. dollars. Checks or money orders shall be made out to the “City of San Clemente.” If any License Payment or any other sum due the City is not received by City within ten (10) days after the date it is due, Chabad Jewish Facility shall be deemed delinquent in its License Payment and a late charge of one and one-half percent (1.5%) of the delinquent amount, plus the sum of Fifty Dollars ($50.00), shall become immediately due and payable to City. An additional charge of one and one-half percent (1.5%) of such delinquent License Payment (excluding late charges) shall be added for each additional calendar month (or portion thereof) that the delinquent sum remains unpaid. The Parties hereby acknowledge and agree that such late charges do not represent and shall not be deemed to be an interest payment, but that such late charges represent a fair and reasonable estimate of the costs and expenses that City will incur by reason of Chabad Jewish Facility’s late payment. City’s acceptance of any delinquent License Payment or late charge shall in no way constitute a waiver of Chabad Jewish Facility’s default with respect to such overdue and delinquent payment, or in any way impair, prevent, or restrict City from exercising any of its rights or remedies set forth in this Agreement or otherwise provided at law.
Acceptability of the Parking Spaces. The Parking Spaces have been determined to conform to current City of San Clemente standards for parking spaces, and Chabad Jewish Facility accepts them “AS IS” and agrees to maintain the Parking Spaces in a manner that meets City standards.
Non-Exclusive Use of the Parking Spaces. The Parking Spaces will continue to be available to the public for purposes related to the primary use of the Bonito Canyon Park. Chabad Jewish Facility shall have no right to post signage on or near the Parking Spaces indicating that the Parking Spaces are for the exclusive use of Chabad Jewish Facility members or to otherwise restrict use of the Parking Spaces by other members of the public.
City’s Reservations. City reserves physical and legal control over the Parking Spaces. As part of that control, the City reserves the right to temporarily, and at no cost to the City, take the Parking Spaces out of service for any purpose, including maintenance, repair, or re-striping. City also reserves the right to designate any or all of the Parking Spaces as handicapped spaces. Additionally, City reserves the right to change the configuration of the Parking Spaces and the drive aisles providing access to the Parking Spaces at City’s sole and absolute discretion; provided, however, if City takes an action during the Term of this Agreement that results in the permanent reduction in the number of Parking Spaces to a number less than 22, City shall be required to act reasonably to amend the area subject to the License to include an additional number of Parking Spaces sufficient to replace the number of Parking Spaces removed from the area subject to the License as of the date this Agreement is being executed. In addition, City reserves the right to require that Chabad Jewish Facility require its employees to utilize the Parking Spaces during the hours that the License is in effect in order to provide a greater number of convenient visitor and student parking spaces on the Property.
Maintenance. Chabad Jewish Facility, at its sole cost and expense, shall maintain the Parking Spaces in a safe and clean condition, and shall be responsible for any damage committed to the Parking Spaces by Chabad Jewish Facility members and invitees. Such maintenance shall include removing all trash and debris from the Parking Spaces, and cleaning any spilled liquids or other substances from the Parking Spaces. Chabad Jewish Facility shall be responsible for all repairs to the Parking Spaces, including asphalt sealing and restriping, reasonably determined to be necessary by City.
Indemnity. Chabad Jewish Facility shall protect, defend (with counsel acceptable to City), indemnify, and hold harmless City and City’s officers, employees, agents, and representatives (collectively, the “City Parties”), and each of them, jointly and severally, against and from any and all claims, demands, causes of action, damages, costs, expenses, losses, and liabilities, at law and in equity, of every kind or nature whatsoever, including attorneys’ fees and expert witness fees, including, without limitation, injury to or death of any person or persons and damage to or destruction of any property, threatened, brought, or instituted, arising out of, or in any manner directly or indirectly connected with the entry upon, or the engagement of any activities on, near or in route to or from the Parking Spaces or the Property by any Chabad Jewish Facility employees or invitees, including, without limitation:
any damage to the Parking Spaces or the Property and any liability to any third party incurred by reason of any acts or omissions, or any commission of any negligent or tortious acts by Chabad Jewish Facility members or invitees in connection with the activities permitted or required by this Agreement; any mechanics’ or materialmens’ liens, claims, demands, actions or suits arising (directly or indirectly) from (i) the performance of the activities permitted or required by this Agreement, or (ii) the activities of Chabad Jewish Facility members or invitees on or relating to the Parking Spaces (including, without limitation, any claims by any such members or invitees); and any costs of removing Chabad Jewish Facility property or the property of any of its employees or invitees from the Parking Spaces or the Property after the last to expire of the Term or the earlier termination of this Agreement.
The foregoing obligations shall not apply to claims, liabilities, or losses arising out of the sole active negligence or willful misconduct of City.
Insurance. Prior to the Commencement Date and during the entire Term, Chabad Jewish Facility shall furnish or cause to be furnished to City, duplicate originals of policies and endorsements, or appropriate certificates thereof, of commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. The City may require Chabad Jewish Facility to increase coverage limits at intervals not more frequent than once every two (2) years during the Term, with the amount of increased coverage determined by City in its reasonable discretion, taking into consideration City’s practice and standards in the industry generally. In addition, all such insurance:
shall be primary insurance and not contributory with any other insurance City or any City official, employee, or agent may have; shall name the City and its officials, employees, and agents as additional insureds and contain no special limitations on the scope of protection afforded to City and City officials, employees, and agents; shall be “date of occurrence” and not “claims made” insurance; shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability; shall provide that the policy shall not be cancelled or not renewed by the insurer or Chabad Jewish Facility unless there is a minimum of thirty (30) days prior written notice to City; shall be endorsed to include a waiver of subrogation rights against City and City’s officials, employees, and agents; shall not require Chabad Jewish Facility to meet a deductible or self-insured retention amount of more than Ten Thousand Dollars ($10,000) unless approved in writing by City in its reasonable discretion; and shall be from a company or companies with a current A.M. Best's rating of no less than A- VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
Notices. All notices, documents, correspondence, and communications concerning this Agreement shall be addressed as set forth in this clause, or as the parties may hereafter designate by written notice, and shall be personally delivered or sent through the United States mail, first class, postage prepaid. Any mailed notice shall be deemed served or delivered forty-eight (48) hours after mailing. Either Party may change the address for notices by giving the other Party at least ten (10) calendar days prior written notice of the new address.
Notwithstanding the above, either party may also provide notices, documents, correspondence, or such other communications to the other by personal delivery or facsimile and, so given, shall be deemed to have been given upon receipt.
To Chabad Jewish Facility: Menachem M Slavin
1306 N. El Camino Real
San Clemente, CA 92672
To City: City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attention: City Clerk
Assignability. The License shall not be assignable except to an authorized successor of Chabad Jewish Facility’s right to operate the Facility on the Property. All assignments require prior approval in writing by the City Manager. Attempted assignments not approved in writing in advance shall automatically terminate this Agreement.
Miscellaneous.
Authority. Each person executing this Agreement on behalf of a Party represents and warrants to the other Party that he or she has the authority to execute this Agreement on behalf of its principal and shall indemnify the other Party should such representation or warranty prove false.
Attorney’s Fees. In the event either Party hereto brings suit to enforce the terms of this Agreement or on account of breach hereof, the Party not prevailing in such suit shall pay all reasonable costs and expenses incurred by the other Party in such suit, including, without limitation, court costs, attorney’s fees, and expert witness fees.
Entire Agreement. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings, and agreements relating thereto.
Amendments. This Agreement may not be modified except by written instrument signed by each of the Parties hereto.
Counterparts/Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. This Agreement may be signed electronically with the same force and effect as original ink signatures.
Litigation Matters. The Superior Court of the State of California in the County of Orange shall have the exclusive jurisdiction of any litigation between the Parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the internal laws of the State of California without regard to conflict of law principles. Chabad Jewish Facility waives any rights under California Code of Civil Procedure section 394.
Time of Essence. Time is of the essence in the performance of this Agreement.
No Property Interest Conveyed. Chabad Jewish Facility acknowledges and agrees that this Agreement grants Chabad Jewish Facility a revocable, non-exclusive license to enter upon and use real property and does not convey a leasehold or any other interest in real property.
IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement to be effective as of the Commencement Date.
Signatures continued on next page
CITY OF SAN CLEMENTE
By:
Andy Hall, City Manager
ATTEST:
By:
Laura Campagnolo, City Clerk
APPROVED AS TO FORM:
By:
Elizabeth A. Mitchell, City Attorney
Chabad Jewish Center of San Clemente
By:
Its:
EXHIBIT “A”
DEPICTION OF THE PARKING SPACES
Ten (10) non-exclusive spaces within the Bonito Canyon Park public parking lot on Saturdays, 9 a.m. to noon -4-
4901-1373-9293 v2
4901-1373-9293 v2
EXHIBIT A