HomeMy WebLinkAboutC-3574 - Construction of Improvements (Use Permit 2001-022)0 0
CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
LaVonne M. Harkless, MMC
October 27, 2004
Mr. Kevin Weeda
Cannery Lofts, L.P.
429 West 30th Street
Newport Beach, CA 92663
Subject: Construction for Improvements - Use Permit No. 2001 -002 (C -3574)
Dear Mr. Weeda:
On October 26, 2004, the City Council of Newport Beach accepted the work of
the subject project and authorized the City Clerk to release the $600,000 faithful
performance bond.
The Surety for the contract is Western Surety Company, and the bond number is
190603380. Enclosed are the Use Permit Labor & Materials Bond and the Use
Permit Faithful Performance Bond.
Sincerely,
(:� "rio-", �
LaVonne M. Harkless, MMC
City Clerk
cc: Public Works Department
Fong Tse, P.E.
encls.
3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915
Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.ca.us
0
E
CITY OF NEWPORT BEACH
USF PERMIT LABOR AND MATF.RTALS ROND
Bond NO. 190603380
Premium: Included In
Performance Bond
WHEREAS, the City Council of the City of Newport Beach, County of Orange, State
of California, and Cannery Lofts, LP I hereinafter designated as
"Principal," are about to or have entered into an agreement pursuant to the
Conditions of Approval to Use Permit
No. 2001 -022 whereby Principal agrees to install and complete certain
designated public improvements, which said agreement, dated August 1 , 200L, and
identified as Agreement for Construction of Improvements (Use Permit No 2001 -072 ),
is hereby referred to and made a part hereof (the "Agreement ,,); and
WHEREAS, under the terms of the Agreement, Principal is required, before
entering upon the performance of the work, to file a good and sufficient payment bond
with the City of Newport Beach to secure and guarantee payment to any contractors,
subcontractors and persons furnishing labor, materials and equipment for the
performance of the Agreement.
NOW, THEREFORE, we the Principal and Western Surety Company as surety
whose place of business is 101 South Phillips Ave. Sioux Falls SD 57117
a corporation organized and doing business under and by virtue of the laws of the
State of South Dakota , and duly licensed by the State of California for the
purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings
required or authorized by the laws of the State of California, are held firmly bound
unto the City of Newport Beach and all contractors, subcontractors, laborers,
materialmen, and othe� er ns em 1 yed in the performance of the Agreement in the
penal sum of Six 11unQrC8 Moullarrs�($600.00J).for equipment and materials furnished
or labor thereon o any cind, or for amounts due under the Unemployment Insurance Act
with respect to such work or labor, that Surety will pay the same in an amount not
exceeding the amount hereinbefore set forth, and also if suit is brought upon this
bond, will pay, in addition to the face amount thereof, costs and reasonable expenses
and fees, including reasonable attorney's fees incurred by City in successfully
enforcing such obligation, to be awarded and fixed by the court, and to be taxed as
costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the
benefit of any and all persons, companies, and corporations entitled to file claims
under Title is (commencing with Section 3082) of Part 4 of Division 3 of the Civil
Code, so as to give a right of action to them or their assigns in any suit brought
upon this bond.
Should the condition of this bond be fully performed, then this obligation
shall become null and void; otherwise, it shall be and remain in full force and
effect.
The Surety hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms o� the Agreement or the specifications
accompanying the same shall in any manner affect its obligations on this bond, and it
does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and
Surety above named on August 15th Zoo 2.
Cannery Lofts, LP
Approved as to Sufficiency: By
Principal
70 A
as to Form:
City Attorney
AGT \t -LW
10/8/92
By
Princi a
Surety
Weste n_ Surety_Gompany
BY \
Tea Adamson Attorney -In -Fact
10,estern Surety CoApany
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN-FACT
Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation
having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby
make, constitute and appoint
Ted Adamson, Richard L Wells, Suzanne Adams, Individually
of Brea, CA, its true and lawful Attomey(s) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds,
undertakings and other obligatory instruments of similar nature
- In Unlimited Amounts -
and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said
Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by
the shareholders of the corporation.
In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Executive Vice President and its corporate seal
to be hereto affixed on this 30th day of January, 2002.
State of South Dakota 1
ss
Jt
County of Minnehaha
On this 30th day of January, 2002, before me personally came Stephen T. Pate, to me known, who, being by me duly sworn, did depose and say: that
he resides in the City of Sioux Falls, State of South Dakota; that he is the Executive Vice President of WESTERN SURETY COMPANY described in and
which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was
so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
My commission expires I MOHR {
WESTERN SURETY COMPANY
Erie
+oQ
ip Yn 6 a
tgii
_,°r,,,,4 ^tit
L
CAV.3-
s��x
SOUTH DAKOTA
Stephen T. Pate, Executive Vice President
State of South Dakota 1
ss
Jt
County of Minnehaha
On this 30th day of January, 2002, before me personally came Stephen T. Pate, to me known, who, being by me duly sworn, did depose and say: that
he resides in the City of Sioux Falls, State of South Dakota; that he is the Executive Vice President of WESTERN SURETY COMPANY described in and
which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was
so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
My commission expires I MOHR {
J.
; '
October 22, 2005 NOTARY PUBLIC ^
i SEAL SEAL
SOUTH DAKOTA
{ Mr Commission Expires 10. 222006
�.M1awMewv.up,4444M4 \sM�hti}
J. Mohr, Notary Public
CERTIFICATE
I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in
force, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force.
In testimony whereof I have hereunto subscribed
my name and affixed the seal of the said corporation this 15th day of August
2002
WESTERN
SURETY COMPANY
�`Q�aaoA4j °i°�g
�W:44 A a•
t x
�tN JDNi4
L. Nelson, Assistant Secretary
Form F42E0 -04 -01
•
State of California
a County of Orange
On
8/15/02
RT
before me, Cynthia A. Wheeler, Notary Public
Name and TMe of OlBOer (e.g., •Jana Doe, Notary Public')
personally appeared Ted Adamson
Name(:) of Signers)
CYNTHIAA. WHEELER
Commission t 1215694 i
y Notary Public - Califomis
Orange County
my C;pmm. Expires Apr 11, 2W13
KI personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he /she/they executed
the same in his /her /their authorized
capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Race Nalary Seal Abwe Signature of Notary Public
OPTIONAL.
Though the information below is not required by law, d may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Number of Pages:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
Top of Numb here
❑ Corporate Officer — Tdle(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
LOGuardian ee
or Conservator
r:
Representing:
0 1997 NaSptal Notary Associalim • 9350 Do Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Pd. No. 5907 Reeder Cell Toll -Five 1- 800 - 8766827
•
CITY OF NEWPORT BEACH
USE PERMIT FAITHFUL PERFORMANCE BOND
Bond No. 190603380
Premium: $12,000.00
WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of
California, and Cannery Lofts, LP hereinafter designated as "Principal," are
about to or have entered into an agreement pursuant to the Newport Beach Municipal Code
whereby Principal agrees to install and complete certain designated public improvements as
required by conditions of approval to Use Permit No.2001 -02.z which said agreement, dated
August l 200 and identified as Agreement for Construction of Improvements (Use
Permit No. 2001 -022 is hereby referred to and made a part hereof (the "Agreement "); and
WHEREAS, Principal is required under the terms of the Agreement to furnish a bond for
the faithful performance of the Agreement,
NOW, THEREFORE, we the Principal and Western Surety Company as surety, whose
place of business is 101 South Phillips Ave, Sioux Fal s,S Bo74T1 Gion organized and
doing business under and by virtue of the laws of the State of South Dakota , and
duly licensed by the State of California for the purpose of making, guaranteeing, or
becoming sole surety upon bonds or undertakings required or authorized by the laws of the
State of California, are held firmly bound unto the City of Newport Beach and all
contractors, subcontractors, laborers, materialmen, and other persons employed in the
performance of the Agreement in the penal sum of
Dollars ($ 600,000.00), lawful money of the United States, for the payment of which sum
well and truly to be made, we bind ourselves, our heirs, successors, executors, and
administrators, jointly and severally, firmly be these presents.
The condition of this obligation is that if the above bound Principal, his, her or
its heirs, executors, administrators, successors, or assigns, shall in all things stand to
and abide by, and well and truly keep and perform the covenants, conditions and provisions
in the Agreement and any alteration thereof made as therein provided, on his or their part,
to be kept and performed at the time and in the manner therein specified, and in all
respects according to their true intent and meaning, and shall indemnify and save harmless
City, its officers, agents, and employees, as therein stipulated, then this obligation
shall become null and void; otherwise, it shall be and remain in full force and effect.
As part of the obligation secured hereby and in addition to the face amount specified
therefore, there shall be included costs and reasonable expenses and fees, included
reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all
to be taxed as costs and included in any judgments rendered.
The Surety and Principal further agree in the event the work and improvements are not
completed with the time allowed by the said agreement or any extensions thereof as may be
granted by the City, the City may, at its option, and in addition to any other remedies
available by law, complete or arrange for completion of the work and improvements, and all
costs and expenses therefor shall become a debt due and owing said City, as set forth in
the Agreement.
The Surety hereby stipulates and agrees that no change, extension of time, alteration
or addition to the terms of the Agreement or to the work to be performed thereunder or the
specifications accompanying the same shall in anywise affect its obligations on this bond
and it does hereby waive notice of any change, extension of time, alteration or addition to
the terms of the Agreement, or to the work, or to the specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and
Surety above named on August 15th . 2002 .
Appr v d as to Form:
City Attorney
AG \UP- PEF.BND; 9/25/92
Cannery Lofts, LP
BY /n
P incipal
Y
Principal
Western Surety Company
Surety. ?.--,
Bye.' ✓..-� � /�< -�1�-
Ted Adamson Attorney —In -Tact
` bstern Surety Coda )any
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN-FACT
Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation
having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby
make, constitute and appoint
Ted Adamson, Richard L Wells, Suzanne Adams, Individually
of Brea, CA, its true and lawful Attomey(s) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds,
undertakings and other obligatory instruments of similar nature
- In Unlimited Amounts -
and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said
Attorney, pursuant to the authority hereby giver, are hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by
the shareholders of the corporation.
In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Executive Vice President and its corporate seal
to be hereto affixed on this 30th day of January, 2002.
.• WESTERN SURETY COMPANY
H oAµ - -'Stephen T. Pate, Executive Vice President
State of South Dakota 1
ss
)j
County of Minnehaha
On this 30th day of January, 2002, before me personally came Stephen T. Pate, to me known, who, being by me duly sworn, did depose and say: that
he resides in the City of Sioux Falls, State of South Dakota; that he is the Executive Vice President of WESTERN SURETY COMPANY described in and
which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was
so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
My commission expires erK.arr�v. """""'•" +
E J. MOBR
NOTARY PUBLIC S }
(
October 22, 2005 . t
i SEAL SOUTH DAKOTA Fat'{
E My Commission Expben 1022 -2005 }
� VMMSM✓w14X44V�•�v44Yrhe
J. Mohr, Notary Public
CERTIFICATE
I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in
force, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed
my time and affixed the seal of the said corporation this 15th day of AUSUSt 2002
fed"' « WESTERN SURETY COMPANY
E -
•;e�`SM ItP� 3 CY
L. Nelson, Assistant Secretary
Form F4280 -04 -01
• •
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of Orange
On 8/15/02 before me, Cynthia A. Wheeler, Notary Public
Date Name and Title of Olgcer (e.g.. 'Jam Doe, Notary Public')
personally appeared Ted Adamson
Name(s) of Sigrens)
J CYNTHIA A. WHEEL ER
commission i 1215594 z
y Notary Public • Califomia >
Z Orange County
my comet. EXPIros Apr 11, 200.3
KJ personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is /are
subscribed to the within instrument and
acknowledged to me that he /she /they executed
the same in his /her /their authorized
capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above 2 Signature of Notary Public
OPTIONAL
Though the information below is not required by law, d may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer—Title(s):
O Partner - 01imited ❑General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
RIGHT THUMBPRINT
OF SIGNER
0 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 Prod. No. 5907 Reorder: Call Tail -Free 1A00 -876 -6827
•
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 8
October 26, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY
FROM: Public Works Department
Fong Tse, P.E.
949 - 644 -3324
ftse@city.newport-beach.ca.us
CC ". 'H04
SUBJECT: RELEASE OF SURETY FOR IMPROVEMENTS CONSTRUCTED FOR
TRACT NO. 16292 (CANNERY LOFTS) — USE PERMIT NO. 2001 -022
DEVELOPER: CANNERY LOFTS, LP
RECOMMENDATIONS:
1. Accept the improvements constructed under Use Permit No. 2001 -022.
2. Authorize the City Clerk to release the $600,000.00 faithful performance bond
retained by the City as a guarantee for completing the public improvements along
the Villa Way, LaFayette Ave, and 30' Street frontages and the Rhine Channel.
DISCUSSION:
On October 8, 2002, the City Council approved the Agreement for Construction of
Improvements required by Use Permit No. 2001 -022 (Permit). The Agreement required
the construction of street, sewer, storm drain, water, lighting, and landscaping public
improvements throughout the development site. Accordingly, Cannery Lofts, LP
submitted a faithful performance bond in the amount of $600,000.00, to guarantee the
completion of said work.
The completed public improvements have been inspected and are satisfactory for
acceptance. Cannery Lofts, LP has requested in writing that the $600,000.00 bond
retained by the City be released (see attached letter). Staff has reviewed and concurs
with said release request.
Environmental Review:
Provisions of CEQA are not applicable.
Submitted by:
Stephen . Badum
Public Works Director
Attachments: Exhibit and Letter from Cannery Lofts, LP
I
d •
II IH,
Hal
L
IBM
m p*mzli
gh
LU
tz
Lo
cannery lofts
October 11, 2004
•
Mr. Fong Tse, P.E.
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658
Re: Street Improvement Bond #190603380
Dear Fong:
IS
VIA FACSIMILE (949) 644-3318
This letter is in regards to releasing the street improvement bond for Cannery Lofts,
L.P. On July 5, 2004, we turned the portion of 30th Street our development occupies back
over to the City of Newport Beach.
General Services has taken over the maintenance on the street end (Mini Park), along
with the street trees and storm drain clarifier. We delivered two street drain grates and four
extra bollards to Frank Martin, our public works inspector, to be turned over to General
Services. We would like July 5, 2004 to begin the three year period to ascertain the cost of
maintenance of improvements annually placed on the public right of way. The maintenance
period will be twenty years total.
We anticipate maintenance for the twenty year period to total $21,000.00 to
$24,000.00 and estimate that approximately $75,000,00 of our $100,000.00 cash payment
delivered to the City in early October 2003 will be returned to us.
Please send a letter acknowledging the release of the bond so that we may forward
that to our bonding company, as our bond expired in August.
Sincerely,
CANNERY LOFTS, L.P..,
l/ V.
KevirrWeeda.. -
KW /ap ...... .
Cc. Bob Burnham, City Attorney
Steve Badum; Public Works
ph:949- 673- LOFT(5638) fx:949-673=1202 WWw.canneryloftS.Cam 429 West 30th St. Newport Beach, CA 92663
1 'd L81!'oN 8011 8L9 866 _IN3WdOl3A30 IMF WUBI�II 6001 'll'i�0
0 C- IM�
AGREEMENT
FOR
CONSTRUCTION OF IMPROVEMENTS
(USE PERMIT NO. 2001 -022)
THIS AGREEMENT, made and entered into this A"24 day of OGTOSr =e , 2002 ,
by and between Cannery Lofts, LP, whose business address is 429 30th Street, Newport
Beach, hereinafter referred to as " PERMITTEE" and the CITY OF NEWPORT BEACH, a
municipal corporation, organized and existing under and by virtue of its Charter and the
Constitution and the laws of the State of California, hereinafter referred to as "CITY ";
WITNESSETH:
WHEREAS, PERMITTEE has applied for a use permit for the use and /or development
of land within the City of Newport Beach to be known as Use Permit No. 2001 -022 (hereinafter
the "Use Permit ") pursuant to provisions of the CITY's ordinances and regulations; and
WHEREAS, Use Permit has been approved, subject to certain requirements and
conditions of approval, which are incorporated into this Agreement by reference ( "Conditions
of Approval "); and
WHEREAS, in consideration of approval of the Use Permit by the CITY and in
compliance with the conditions of approval, PERMITTEE desires to enter into this Agreement,
whereby PERMITTEE promises to install and complete, at PERMITTEE'S own expense,
street and other public improvement work required by CITY in connection with the proposed
development, (the "Improvements ") which Improvements, without limitation by enumeration
consists of:
Street improvements along the Villa Way, Lafayette Avenue, and 30"' Street frontages,
and along the Rhine Channel.
The above description of items is understood to be only a general description of the
Improvements, and not a binding description. PERMITTEE has secured this Agreement by
improvement security required by City Ordinance; and
WHEREAS, complete plans for the construction, installation and completion of the
Improvements shall be prepared by PERMITTEE and approved by the City Engineer, (the
"Improvement Plans "). All references in this Agreement to the Improvement Plans shall
include reference to any specifications for the Improvements as approved by the City
Engineer; and
WHEREAS, PERMITTEE recognizes that by approval of the Use Permit CITY has
conferred substantial rights upon PERMITTEE. As a result, CITY will be damaged to the
extent of the cost of installation of the Improvements by PERMITTEE's failure to perform its
obligations under this Agreement, including, but not limited to, PERMITTEE's obligation to
1
0 0
commence construction of the Improvements by the time established in this Agreement. CITY
shall be entitled to all remedies available to it pursuant to this Agreement and law; and
NOW, THEREFORE, in consideration of their mutual promises, the Parties hereto
agree as follows:
PERMITTEE agrees to comply with all requirements of the Conditions of Approval.
PERMITTEE agrees to complete all Improvements in accordance with Improvement
Plans approved by the City Engineer, including all improvements required by the
Municipal Code which were not specifically waived by the Planning Commission or
City Council approving the Use Permit, plus any additional improvements required by
the Planning Commission or City Council as a condition of approving the Use Permit.
PERMITTEE shall acquire and dedicate, or pay the cost of acquisition by CITY, of all
rights -of -way, easements and other interests in real property for construction or
installation of the public improvements, free and clear of all liens and encumbrances.
The PERMITTEE's obligations with regard to acquisition by CITY of offsite rights -of-
way, easements and other interests in real property shall be subject to a separate
agreement between PERMITTEE and CITY. PERMITTEE shall also be responsible
for obtaining any public or private drainage easements or authorization to
accommodate the development.
3. PERMITTEE agrees to complete the Improvements within a period of 18 months from
the date hereof, unless the time is extended by the CITY upon written application of
the PERMITTEE. It is understood that by providing security for this Agreement, the
surety consents in advance to any extension of time as may be given by the CITY to
the PERMITTEE and waives notices of such extension. The making of an application
for an extension of time by the PERMITTEE shall, upon the granting of the application
by the CITY, constitute a waiver by the PERMITTEE and by the surety of all defenses
of laches, estoppels, statutes of limitations, and other limitations of action in any action
or proceeding filed by the CITY within the period of four (4) years immediately
following the date to which the time of performance was extended.
4. The Improvements shall be completed to the satisfaction of the City Engineer of CITY,
and PERMITTEE shall pay the costs of inspection of the work in accordance with the
established schedule of charges for inspection heretofore adopted and on file in the
office of the City Engineer.
5. If PERMITTEE shall fail to complete the Improvements within the period set out
above, or fails to reimburse the CITY for the cost of inspection, CITY may resort to
any security deposited by PERMITTEE or call upon the surety for PERMITTEE to pay
for the Improvements or to supply the money for the completion of the Improvements
in accordance with this Agreement and the provisions of the Newport Beach Municipal
Code. PERMITTEE shall also be responsible for the Improvements and the cost
thereof.
6. It is further understood and agreed that upon default of any obligation hereunder, and
at any time any such default, the CITY may make written demand upon the
PERMITTEE or surety or both to immediately remedy the default or complete the
0 0
work. If the remedial activities or completion of work are not commenced within seven
(7) days after such demand is made and are not thereafter diligently prosecuted to
completion and fully completed within thirty (30) days after the making of such
demand (or such other time as may be contained in said demand), the CITY may then
complete or arrange for completion of all remaining work or conduct such remedial
activity as in the sole judgment of the CITY may be required, all at the full expense
and obligation of the PERMITTEE and PERMITTEE's surety and all without the
necessity of giving any further notice to the PERMITTEE or surety before the CITY
performs or arranges for performance of any remaining work to complete the
Improvements, and whether the PERMITTEE or surety have constructed any of the
required Improvements at the time. In the event the CITY elects to complete or
arrange for completion of remaining work and improvements the City Engineer, upon
such election, may require all work by the PERMITTEE or surety to cease in order to
permit adequate coordination by the CITY for completing any remaining work and
improvements not yet completed.
7. PERMITTEE shall at all times guarantee PERMITTEE's performance of this
agreement by furnishing to CITY security in the amount of six hundred thousand
dollars ($600,000) to guarantee the performance of this Agreement. The
PERMITTEE shall provide security in the amount of six hundred thousand dollars
($600,000) to guarantee payment to any contractors, subcontractors, and persons
furnishing labor, materials and equipment to them for the performance of the work
herein described. Said security shall be in the form of
(Bond Nos. /Certificate of Deposit No's. ).
8. The PERMITTEE promises and agrees to maintain all of the Improvements to be
constructed under this Agreement in a state of good repair, until all of the work and
Improvements are completed and accepted by or on behalf of the CITY and until the
security for the performance of this Agreement is released. Maintenance of the
Improvements shall include, but shall not be limited to, repair of pavement, curbs,
gutters, sidewalks, parkways, sewers, and removal of debris from sewers and storm
drains; and shall also include, but not be limited to by this enumeration, sweeping,
repairing and maintaining in good and safe condition all streets and street
improvements. Upon failure of the PERMITTEE to property maintain the
Improvements, the CITY may do all necessary work required by this paragraph, the
cost thereof being chargeable to the PERMITTEE and his surety under this
Agreement.
9. The securities required by this Agreement shall be released as follows:
a. Security given for faithful performance of any act, obligation, work or
agreement shall be released upon the final completion and acceptance of
the act or work.
b. Security given to secure payment to the contractors, his or her
subcontractors and to persons furnishing labor, materials or equipment
shall, six months after the completion and acceptance of the work, be
reduced to an amount equal to the total claimed by all claimants for whom
liens have been filed and of which notice has been given to the legislative
body, plus an amount reasonably determined by the City Engineer to be
required to assure the performance of any other obligations secured by the
3
0
Security. The balance of the security shall be released upon the
settlement of all claims and obligations for which the security was given.
10. Neither PERMITTEE nor any of PERMITTEE's agents or contractors are or shall be
considered to be agents of the CITY in connection with the performance of
PERMITTEE's obligations under this Agreement.
11. Indemnity /Hold Harmless. CITY or any officer or employee thereof shall not be liable
for any injury to persons or property occasioned by reason of the acts or omissions of
PERMITTEE, its agents or employees in the performance of this Agreement.
PERMITTEE further agrees to protect, defend, indemnify and hold harmless CITY, its
officials and employees from any and all claims, demands, causes of action, liability or
loss of any sort, because of, or arising out of, the negligent or intentional acts or
omissions of PERMITTEE, its agents or employees in the performance of this
Agreement, including all claims, demands, causes of action, liability, or loss because
of, or arising out of, in whole or in part, the design or construction of the Improvements.
This indemnification and agreement to hold harmless shall extend to injuries to
persons and damages or taking of property resulting from the design or construction of
said development, and the public improvements as provided herein, and in addition, to
adjacent property owners as a consequence of the diversion of waters from the design
or construction of public drainage systems, streets and other public improvements.
Acceptance by the CITY of the Improvements shall not constitute an assumption by
the CITY of any responsibility for any damage or taking covered by this paragraph.
12. CITY shall not be responsible for the design or construction of the development or the
Improvements pursuant to the approved improvement plans or map, regardless of any
negligent action or inaction taken by the CITY in approving the plans or map, unless
the particular improvement design was specifically required by CITY over written
objection by PERMITTEE submitted to the City Engineer before approval of the
particular improvement design, which objection indicated that the particular
improvement design was dangerous or defective and suggested an alternative safe
and feasible design. After acceptance of the Improvements, the PERMITTEE shall
remain obligated to eliminate any defect in design or dangerous condition caused by
the design or construction defect, however PERMITTEE shall not be responsible for
routine maintenance. It is the intent of this section that PERMITTEE shall be
responsible for all liability for design and construction of the Improvements installed or
work done pursuant to this Agreement and that CITY shall not be liable for any
negligence, nonfeasance, misfeasance and malfeasance in approving, reviewing,
checking, or correcting any plans or specifications or in approving, reviewing or
inspecting any work or construction. The improvement security shall not be required to
cover the provisions of this paragraph.
13. If the PERMITTEE and the surety fail to install all or any part of the Improvements
required by this Agreement within the time set forth herein, or fail to comply with any
other obligation contained herein, they shall be jointly and severally liable to the CITY
for any administrative expenses and attorney's fees and costs incurred in obtaining
compliance with this Agreement and any such expenses and fees incurred in
processing any action for damages or for any other remedies permitted by law.
11
IN WITNESS WHEREOF, PERMITTEE has executed this Agreement and the CITY
OF NEWPORT BEACH has caused its corporate name and seal to be affixed by its Mayor
and City Clerk thereunto duly authorized as of the day and year first above written.
CITY OF NEWPORT BEACH,
a municipal corporation
City Clerk
APP AS TO FORM:
City Attorney
FIUSERS\PBIMPArciniega \USE PERMITS \UP - CANNERY LOFTS.doc
By:
Mayor
PERMITTEE
By: !i
Cannery Lofts LP
By Skyridge LLC
General Partner
Kevin Weeda
• 03 )
f
C -35 ")q
October S, 2002
CITY COUNCIL AGENDA
ITEM NO 10
TO: MAYOR AND MEMBERS OF THE CITY COUNCIL
Gl, f u ii liiii[
FROM: PUBLIC WORKS DEPARTMENT
SUBJECT: APPROVAL OF SUBDIVISION AGREEMENT FOR
DEVELOPMENT
LOCATION: 30T" STREET BETWEEN VILLA WAY AND LAFAYETTE AVENUE (CANNERY
VILLAGE AREA)
DEVELOPER: CANNERY LOFTS, LP
f3�K�7�lu�l ��17�i rL�7►i
Approve an Agreement guaranteeing completion of the public improvements required with Use
Permit No. 2001 -022, and authorize the Mayor and the City Clerk to execute the Agreement.
DISCUSSION:
The Cannery Lofts Development is located on 30'" Street between Villa Way and Lafayette
Avenue along with four lots on Lafayette Avenue in the Cannery Village area. The conditions of
approval required the construction of street improvements along the 30'h Street, Lafayette, and
Villa Way frontages as well as a walkway along the Rhine Channel.
The developer desires to obtain a building permit prior to completion of the public
improvements. In order to guarantee completion of the public improvements, the developer has
executed an appropriate Agreement and provided the accompanying security in the form of
bonds.
The Agreement establishes the developer's obligation to complete the public improvement
construction. The faithful performance surety and the labor and materials surety are in the
amount of $600,000 each, which is the estimated cost of the improvements. The developer has
deposited a check in the amount of $29,500 with the City to cover the cost of inspection fees
and plan checking.
An exhibit is attacWd for reference.
Badum
Patrick Arciniega
Junior Engineer
Attachments: Agreement
Exhibit
e
N
��� IFyM1
. 0 19�E6�
A J
1!I 1!I n wt
Isis
MIS
Ing 11
4�wvs..._a...:.m:,a:naewsDY .`rr::ev,mN.alumdlt>a�vAS1
� s
lobw
•J�
..Illl
J •
••
I � N.■ e
e 7 1
D 1 � 4141D /�
1!I IJ .v b" e
el Blo
✓
........ ✓
L;"p
Inv
uU .
... �,. . ,m, .
. + ,
' O
Oil
-� •.. IIIII
1µi =��C�"Il 1111';?• 1
111- -
Elm
✓�
-, -Ju. _
_ .. t
0 0
AGREEMENT
FOR
CONSTRUCTION OF IMPROVEMENTS
(USE PERMIT NO. 2001 -022)
THIS AGREEMENT, made and entered into this day of '200
by and between Cannery Lofts; LP, whose business address is 429 30" Street, Newport
Beach, and if an individual, whose residence address is
. hereinafter referred to as " PERMITTEE" and the CITY
OF NEWPORT BEACH, a municipal corporation, organized and existing under and by virtue
of its Charter and the Constitution and the laws of the State of California, hereinafter referred
to as "CITY";
WITNESSETH:
WHEREAS, PERMITTEE has applied for a use permit for the use and /or development
of land within the City of Newport Beach to be known as Use Permit No. 2001 -022 (hereinafter
the "Use Permit ") pursuant to provisions of the CITY's ordinances and regulations; and
WHEREAS, Use Permit has been approved, subject to certain requirements and
conditions of approval, which are incorporated into this Agreement by reference ( "Conditions
of Approval "); and
WHEREAS, in consideration of approval of the Use Permit by the CITY and in
compliance with the conditions of approval, PERMITTEE desires to enter into this Agreement,
whereby PERMITTEE promises to install and complete, at PERMITTEE'S own expense,
street and other public improvement work required by CITY in connection with the proposed
development, (the "Improvements ") which Improvements, without limitation by enumeration
consists of:
Street improvements along the Villa Way, Lafayette Avenue, and 30't, Street frontages,
and along the Rhine Channel.
The above description of items is understood to be only a general description of the
Improvements, and not a binding description. PERMITTEE has secured this Agreement by
improvement security required by City Ordinance; and
WHEREAS, complete plans for the construction, installation and completion of the
Improvements shall be prepared by PERMITTEE and approved by the City Engineer, (the
"Improvement Plans "). All references in this Agreement to the Improvement Plans shall
include reference to any specifications for the Improvements as approved by the City
Engineer; and
WHEREAS, PERMITTEE recognizes that by approval of the Use Pen-nit CITY has
conferred substantial rights upon PERMITTEE. As a result, CITY will be damaged to the
extent of the cost of installation of the Improvements by PERMITTEE's failure to perform its
0
P
obligations under this Agreement, including, but not limited to, PERMITTEE's obligation to
commence construction of the Improvements by the time established in this Agreement. CITY
shall be entitled to all remedies available to it pursuant to this Agreement and law; and
NOW, THEREFORE, in consideration of their mutual promises, the Parties hereto
agree as follows: —
1. -: PERMITTEE agrees to comply with all requirements of the Conditions of Approval.
2. PERMITTEE agrees to complete all Improvements in accordance. with Improvement
Plans approved by the City Engineer, including all improvements requited by the
Municipal Code which were not specifically waived by the Planning Commission or
City Council approving the Use Permit, plus any additional improvements required by
the Planning Commission or City Council as a condition of approving the Use Permit.
PERMITTEE shall acquire and dedicate, or pay the cost of acquisition by CITY, of all
rights -of -way, easements and other interests in real property for construction or
installation of the public improvements, free and clear of all liens and encumbrances.
The PERMITTEE's obligations with regard to acquisition by CITY of offsite rights -of-
way, easements and other interests in real property shall be subject to a separate
agreement between PERMITTEE and CITY. PERMITTEE shall also be responsible
for obtaining any public or private drainage easements or authorization to
accommodate the development.
3. PERMITTEE agrees to complete the Improvements within a period of 18 months from
the date hereof, unless the time is extended by the CITY upon written application of
the PERMITTEE. It is understood that by providing security for this Agreement, the
surety consents in advance to any extension of time as may be given by the CITY to
the PERMITTEE and waives notices of such extension. The making of an application
for an extension of time by the PERMITTEE shall, upon the granting of the application
by the CITY, constitute a waiver by the PERMITTEE and by the surety of all defenses
of laches, estoppels, statutes of limitations, and other limitations of action in any action
or proceeding filed by the CITY within the period of four (4) years immediately
following the date to which the time of performance was extended.
4. The Improvements shall be completed to the satisfaction of the City Engineer of CITY,
and PERMITTEE shall pay the costs of inspection of the work in accordance with the
established schedule of charges for inspection heretofore adopted and on file in the
office of the City Engineer.
5. If PERMITTEE shall fail to complete the Improvements within the period set out
above, or fails to reimburse the CITY for the cost of inspection, CITY may resort to
any security deposited by PERMITTEE or call upon the surety for PERMITTEE to pay
for the Improvements or to supply the money for the completion of the Improvements
in accordance with this Agreement and the provisions of the Newport Beach Municipal
Code. PERMITTEE shall also be responsible for the Improvements and the cost
thereof.. .
6. It is further understood and agreed that upon default of any obligation hereunder, and
at any time any such default, the CITY may make written demand upon the
2
PERMITTEE or surety or both to immediately remedy the default or complete the
work. If the remedial activities or completion of work are not commenced within seven
(7) days after such demand is made and are not thereafter diligently prosecuted to
completion and fully completed within thirty (30) days after the making of such
demand (or such other time as may be contained in said demand), the CITY may then
complete or arrange for. completion of all remaining work or conduct such remedial
activity as in the sole .judgment of.the CITY may be required; all at the full expense
and obligation of the PERMITTEE and.PERMITTEE's sure_ty.and all without the
necessity of giving any further notice to the PERMrFTEE or surety before the CITY
performs or arranges for performance of any remaining work to complete the
Improvements, and whether the PERMITTEE or surety have constructed any of the
required Improvements at the time. In the event the CITY elects to complete or
arrange for completion of remaining work and improvements the City Engineer, upon
such election, may require all work by the PERMITTEE or surety to cease.in order to
permit adequate coordination by the CITY for completing any remaining work and
improvements not yet completed.
7. PERMITTEE shall at all times guarantee PERMITTEE's performance of this
agreement by furnishing to CITY security in the amount of six hundred thousand
dollars ($600,000) to guarantee the performance of this Agreement. The
PERMITTEE shall provide security in the amount of six hundred thousand dollars
($600,000) to guarantee payment to any contractors, subcontractors, and persons
furnishing labor, materials and equipment to them for the performance of the work
herein described. Said security shall be in the form of
(Bond Nos. /Certificate of Deposit No's. ).
8. The PERMITTEE promises and agrees to maintain all of the Improvements to be
constructed under this Agreement in a state of good repair, until all of the work and
Improvements are completed and accepted by or on behalf of the CITY and until the
security for the performance of this Agreement is released. Maintenance of the
Improvements shall include, but shall not be limited to, repair of pavement, curbs,
gutters, sidewalks, parkways, sewers, and removal of debris from sewers and storm
drains; and shall also include, but not be limited to by this enumeration, sweeping,
repairing and maintaining in good and safe condition all streets and street
improvements. Upon failure of the PERMITTEE to properly maintain the
Improvements, the CITY may do all necessary work required by this paragraph, the
cost thereof being chargeable to the PERMITTEE and his surety under this
Agreement.
9. The securities required by this Agreement shall be released as follows:
a. Security given for faithful performance of any act, obligation, work or
agreement shall be released upon the final completion and acceptance of
the act or work.
b. Security given to secure payment to the contractors, his or her
subcontractors and to persons furnishing labor, materials or equipment
shall, six months after the completion and acceptance of the work, be
reduced to an amount equal to the total claimed by all claimants for whom
liens have been filed and of which notice has been given to the legislative
body, plus an amount reasonably determined by the City Engineer to be
3
b
0
required to assure the performance of any other obligations secured by the
Security. The balance of the security shall be released upon the
settlement of all claims and_ obligations for which the security was given.
_ .10. Neither PERMITTEE nor any of_PERMITTEE's agents or contractors are or shall be
considered to be agents of AhP CITY :in connection with the performance of
PERMITTEE's obligations under this Agreement.
11. " . Indemnity /Hold Harmless. CITY or any officer or employee thereof shall not be liable
for any injury to persons or property occasioned by reason of the acts or omissions of
PERMITTEE, its agents. or employees in the performance of this Agreement.
PERMITTEE further agrees to protect, defend, indemnify and hold harmless CITY, its
officials and employees from any and all claims, demands, causes of action, liability or
loss of any sort, because of, or arising out of, the negligent or intentional acts or
omissions of PERMITTEE, its agents or employees in the performance of this
Agreement, including all claims, demands, causes of action, liability, or loss because
of, or arising out of, in whole or in part, the design or construction of the Improvements.
This indemnification and agreement to hold harmless shall extend to injuries to
persons and damages or taking of property resulting from the design or construction of
said development, and the public improvements as provided herein, and in addition, to
adjacent property owners as a consequence of the diversion of waters from the design
or construction of public drainage systems, streets and other public improvements.
Acceptance by the CITY of the Improvements shall not constitute an assumption by
the CITY of any responsibility for any damage or taking covered by this paragraph.
12. CITY shall not be responsible for the design or construction of the development or the
Improvements pursuant to the approved improvement plans or map, regardless of any
negligent action or inaction taken by the CITY in approving the plans or map, unless
the particular improvement design was specifically required by CITY over written
objection by PERMITTEE submitted to the City Engineer before approval of the
particular improvement design, which objection indicated that the particular
improvement design was dangerous or defective and suggested an alternative safe
and feasible design. After acceptance of the Improvements, the PERMITTEE shall
remain obligated to eliminate any defect in design or dangerous condition caused by
the design or construction defect, however PERMITTEE shall not be responsible for
routine maintenance. It is the intent of this section that PERMITTEE shall be
responsible for all liability for design and construction of the Improvements installed or
work done pursuant to this Agreement and that CITY shall not be liable for any
negligence, nonfeasance, misfeasance and malfeasance in approving, reviewing,
checking, or correcting any plans or specifications or in approving, reviewing or
inspecting any work or construction. The improvement security shall not be required to
cover the provisions of this paragraph.
13. If the PERMITTEE and the surety fail to install all or any part of the Improvements
required by this Agreement within the time set forth herein, or fail to comply with any
other obligation contained herein, they shall be jointly and severally liable to the CITY
for any administrative expenses and attorney's fees and costs incurred in obtaining
compliance with this Agreement and any such expenses and fees incurred in
processing any action for damages or for any other remedies permitted by law"
IN WITNESS WHEREOF, PERMITTEE has executed this Agreement and the CITY
OF NEWPORT BEACH has caused its corporate name and seal to be affixed by its Mayor
and City Clerk thereunto duly authorized as of the day and year first above written.
CITY OF NEWPORT BEACH,.
a municipal corporation
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
By:
Mayor
PERMITTEE
By: m y ' v �
Cannery Lofts LP
By Skyridge LLC
General Partner
Kevin Weeda
FAUSERS \PB\MPAroiniega \USE PERMITS \UP - CANNERY LOFTSADc
A
7
Bond No. 190603380
' • CITY OF NEWPORT BEACH Premium: $12,000.00 •
USE PERMIT FAITHFUL PERFORMANCE BOND .
WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of
California, and Cannery Lofts, LP - hereinafter designated as "Principal, "" are
about to or have entered into an agreement pursuant to the Newport Beach Municipal Code
whereby Principal agrees to install and complete certain designated public improvements as
required by condit'ons of approval to Use Permit No.20"01 -022, which said agreement, dated
A ugust T 200 and "identified as Agreement for Construction of Improvements (Use
Permit No. 2001 -022 is hereby referred to and made a part hereof (the "Agreeement "); and .
WHEREAS,. Principal is required under the terms of the.Agreement to furnish a bond for
the faithful performance of,the Agreement,
NOW, THEREFORE, we the Principal and. Western Surety "Company as surety,, whose"
place of business is 161 South Phillips Ave, Sioux Fallpt�SOo4Z 16ion organized and
doing business under and by virtue of the laws of the State of South Dakota and
duly licensed by the State of California 'for the purpose of making,: guaranteeing, or
becoming sole surety upon bonds or undertakings required or authorized by the laws -of'the
-
State of California, are held firmly bound - -unto the -- City- - -of -- Newport' —Beach -- and' -all : =-
contractors, subcontractors, laborers, materialmen, and other persons employed in the
performance of the Agreement. in the "penal . sum of
Dollars ($ 600,000.00), lawful money of the United States, for the payment of which sum
well and truly to be made, we bind ourselves, our heirs, successors," executors," and
administrators, jointly and severally, firmly be these presents. - - -
The condition of this obligation is that if the above bound Principal, his, her or'
its heirs, executors, administrators, successors, or assigns, shall in all things stand to
and abide by, and well and truly keep and perform the covenants, conditions and provisions -
in the Agreement and any alteration thereof made as'therein provided, on his or their part,
to be kept and performed at the time and in the manner therein specified, and in all
respects according to their true intent and meaning, and shall indemnify, and save harmless
City, its officers, agents, and employees, as therein stipulated, then this obligation
shall become null and void; otherwise, it shall be and remain in full force ".and effect..
As part of the obligation secured hereby and in addition to the face .:
amount. specified
. -!:
therefore, there shall be included costs and reasonable expenses -and fees, included;"''
reasonable attorney's fees, incurred by City in successfully enforcing such obligation; ;all
to be taxed as costs and included in any judgments" rendered.
The Surety and Principal. further agree in the event the work and improvements ar'e bot
completed with the time allowed by the said agreement or any extensions .thereof as maybe
granted by the City, the City may, at its option, and in addition to .any- -other remedies
available by law, complete or arrange for completion of the work and improvements, and all
costs and expenses therefor shall become a debt due and owing said City, - as set forth in -
the Agreement. V
.The Surety hereby stipulates and agrees that no change, extension.of time, alteration "
or addition to the terms of the Agreement or to the work to be performed thereunder or the
specifications accompanying the same shall in anywise affect its obligations on this bond
and it does hereby waive notice of any change,. extension of time, alteration or addition to
the terms of the.Agreement, or to the work, or to the specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and
Surety above named on August 15th 2002 .
Cannery Lofts, LP
Approved as to Sufficiency: By //1 i ` v
P
inc ipal
Mayor By
Principal
Approved as to Form: Western Surety Company
City Attorney Ted Adamson Attorney -In- -t
AG \�- PER_MM; 9/25/92
6. i
Western Surety Company
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN-FACT
Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation
having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby
make, constitute and appoint
Ted Adamson, Richard L Wells, Suzanne Adams, Individually
of Brea, CA, its true and lawful Attomey(s) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds,
undertakings and other dbligatory instruments of similar nature
- In Unlimited Amounts -
and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said
Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by
the shareholders of the corporation.
In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Executive Vice President and its corporate seal
to be hereto affixed on this 30th day of January, 2002.
State of South Dakota 1
County of Mimehaha
3 ss
On this 30th day of January, 2002, before me personally came Stephen T. Pate, to me Imown, who, being by me duly sworn, did depose and say: that
he resides in the City of Sioux Falls, State of South Dakota; that he is the Executive Vice President of WESTERN SURETY COMPANY described in and
which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was
so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his time thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
My commission expires +•'^ "^'"^'"•`�'^'�'�"'• ^�+
r J. MOHR
October 22, 2005 NOTARY PUBLIC �
{ sa LL SOUTH DAKOTA s tf
! Nr Commueinu nzpuca la.T'1.Rae6 f
♦�.- ww.w+.wu.wertwrv...�
J. Mohr, Notary Public
CERTIFICATE
I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney heremabove set forth is still in
force, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed
my name and affixed the seal of the said corporation this 15th day of August 2002
WESTERN SURETY COMPANY
C
_w:44F 4jPir`
CA �Y =-
L. Nelson, Assistant Secretary
Form 174280 -04-01
Ci
WESTERN SURETY COMPANY
?
=n °j4p R .le
T.
1�
Stephen T. Pate, Executive Vice President
State of South Dakota 1
County of Mimehaha
3 ss
On this 30th day of January, 2002, before me personally came Stephen T. Pate, to me Imown, who, being by me duly sworn, did depose and say: that
he resides in the City of Sioux Falls, State of South Dakota; that he is the Executive Vice President of WESTERN SURETY COMPANY described in and
which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was
so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his time thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
My commission expires +•'^ "^'"^'"•`�'^'�'�"'• ^�+
r J. MOHR
October 22, 2005 NOTARY PUBLIC �
{ sa LL SOUTH DAKOTA s tf
! Nr Commueinu nzpuca la.T'1.Rae6 f
♦�.- ww.w+.wu.wertwrv...�
J. Mohr, Notary Public
CERTIFICATE
I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney heremabove set forth is still in
force, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed
my name and affixed the seal of the said corporation this 15th day of August 2002
WESTERN SURETY COMPANY
C
_w:44F 4jPir`
CA �Y =-
L. Nelson, Assistant Secretary
Form 174280 -04-01
Ci
CALIFORNIA ALL - PURPOSE ACKNOWLEDGME
State of California
SS.
County of Orange
On 8/15/02 before me, Cynthia A. Wheeler, Notary Public
Date Name and Title of Officer (e.g. 'Jane Doe, Nobry Public')
personally appeared Ted Adamson
Names) of Signers)
CyN'RiIAA WHEELER
Commission t 1215894
y Notary Public - California
Orange County
jpprt1,2W
® personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is /are
subscribed to the within instrument and
acknowledged to me that he /she /they executed
the same in his /her /their authorized
capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS'my hand and official seal.
Plea Notary Seal Above —� x Signature of Ncrary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer— Title(s):
A
Partner — ❑ Limited ❑ General
Attorney in Fad
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
RIGHTTHU"111 T,
OFSIGNER
C 1997 National Notary Assodaiion • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 Prod. No. 5907 Reorder Call Tull -Free 1- 800.8766827
to
Bond NO. 190603380
CITY OF NEWPORT BEACH Premium: Included Is
USE PERMIT LABOR AND MATERIALS BOND Performance Bond
WHEREAS, the City Council of the City of Newport Beach, County of Orange, State
of California, and Cannery Lofts, LP . , hereinafter designated as
"Principal," are about to or have entered into an agreement pursuant to the
Conditions of Approval to Use Permit
No. 2001 -022 whereby Principal agrees to install and complete certain
designated public improvements,.which said agreement, dated August 1 , 2001-, and
identified as Agreement for Construction of Improvements (Use Permit No2001 -027 ),
is hereby referred to and made a part hereof (the "Agreement "); and.
WHEREAS, under the terms of the Agreement, Principal is required, before
entering upon the performance of the work, to file a good and sufficient payment bond
with the City of Newport Beach to secure and guarantee payment to any contractors,
subcontractors and persons furnishing labor, materials and equipment for the
performance of the Agreement.
NOW, THEREFORE, we the Principal and Western Surety Company as surety
whose place of business is 101 South'Phillips Ave. Sioux Falls SD 57117
a corporation organized and doing business under and by virtue of the laws of the
State of South Dakota , and duly licensed by the State of California for the
purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings
required or authorized by the laws of the State of California, are held firmly bound
unto the City of Newport Beach and all contractors, subcontractors, laborers,
materialmen, S n rithlQrEOrsons e cl�yed in the performance of the Agreement in the
penal sum of lII�oul ars ($600.00p .for equipment and materials furnished
or labor thereon ONF any cind, or for amounts due under the Unemployment Insurance Act
with respect to such work or labor, that Surety will pay the same in an amount not
exceeding the amount hereinbefore set forth, and also if suit is brought upon this
bond, will pay, in addition to the face amount thereof, costs and reasonable expenses
and fees, including reasonable attorney's fees incurred by City in successfully
enforcing such obligation, to be awarded and fixed by the court, and to be taxed as
costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the
benefit of any and all persons, companies, and corporations entitled to file claims
under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil
code, so as to give a right of action to them or their assigns in any suit brought
upon this bond.
Should the condition of this bond be fully, performed, then this obligation
shall become null and void; otherwise, it shall be and remain in full force and
effect.
The Surety hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms o`f the Agreement or the specifications
accompanying the same shall in any manner affect its obligations on this bond, and it
does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and
Surety above named on August 15th 200 2.
Cannery Lofts, LP,
Approved as to Sufficiency: By
Principal
Mayor By
Principal
Approved as to Form:
Surety
West Sur4 mnY
City Attorney Te A amson Attorney -In -Fact
AOT \U -L8 10/8/92
)J/estern Surety CoMpany
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT
Know AB Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation
having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein arced hereby
make, constitute and appoint
Ted Adamson, Richard L Wells, Suzanne Adams, Individually
of Brea, CA, its true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds,
undertakings and other obligatory instruments of similar nature
- In Unlimited Amounts -
and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said
Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, win dicattil, by
the shareholders of the corporation.
In Witness Whereof WESTERN SURETY COMPANY has caused these presents to be signed by its Executive Vice President and its corporate seal
to be hereto affixed on this 30tb day of January, 2002.
�d naTue WESTERN I;SURETY COMPANY
Stephen T. Pate, Executive Vice President
State of South Dakota 1
JI
County of Mimehaha ss
On this 30th day of January, 2002, before me personally came Stephen T. Pam, to me known, who, being by me duly sworn, did depose and say: that
he resides in the City of Sioux Falls, State of South Dakota; that he is the Executive Vice President of WESTERN SURETY COMPANY described in and
which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was
so affixed pursuant to authority given by the Board of Directors of said corporation and that he sued his name thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
My commission expires r•'w'K`�'^�`"�•�"'^'�'"^`��
J. MOBR f
October 22, 2005 ,NOTARY PUBLIC L J
iaEAL SOUTH DAKOTA S�e i
1 Mr 0*.m siav EVu.10- 22.2005 )
J. Mobr, Notary Public
CERTIFICATE
L L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in
farce, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed
my name and affixed the seal of the said corporation this 15th day of August 2002
WESTERN SURETY COMPANY
s `w� it ,I
{ ii`.
w�atiSE AV P£
�rN oaae'
% L. Nelson, Assistant Secretary
Form F4280 -04-01
12 '
w w
ALL - PURPOSE ACKNOWLEDGMENT
State of California
} ss.
County of Orange J
on 8/15/02 before me, Cynthia A. Wheeler, Notary Public
Date Name end Me of Officer (e.g- 'Jam Dee. Notary Pudic)
personally appeared Ted Adamson
Nen*s) of signer(s)
CyNTH{AA WHEELER
Commission # 1215694
0MyComm. Notary Public - Califomia Orange County
Expires Apr 11, 20D3
® personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is /are
subscribed to the within instrument and
acknowledged to me that he /she/they executed
the same in , his /her/their authorized
capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS mmyyfJ hand
/ / /and ooff�iciiaallfseal.
Plxe Notary Seal ADOVC '� /�F°a�� Sgnalme of NNary Pubic
"
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other..
Signer Is Representing:
Number of Pages:
RIGHT7HUMBPRINT
OFSIGNER
0 1997 NaSwW Notary Assodetion • 9350 De sob Ave., P.O. Box 2402 • ChabwoM. CA 91313.2602 Plod. No. 5907 Reorder. Call TolkFm 1- 5049766927