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HomeMy WebLinkAboutC-3603 - Agreement & Bonds for Parcel Map No. NP2002-154 for 3100 & 3150 West Coast HighwayCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 March 28, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY FROM: Public Works Department Fong Tse, P.E. 949 - 644 -3311 or ftse @city.newport- beach.ca.us SUBJECT: RELEASE OF BOND FOR STERLING BMW ON AVO ROADWAY EXTENSION IMPROVEMENTS DEVELOPER: STERLING BMW — NEWPORT BEACH RECOMMENDATION: 1. Accept the public improvements constructed in conjunction with Parcel Map No. 2002 -154. 2. Authorize the City Clerk to release Faithful Performance Bond No. 9307867 in the amount of $15,000 for the Avon Street roadway extension public improvements. 3. Authorize a budget amendment in the amount of $15,000 from the unappropriated Transportation and Circulation fund (260 -3605) to Account 7261- C5100697 to pay for the City's share of the Avon Street roadway extension work. DISCUSSION: As conditioned by Parcel Map No. 2002 -154, Sterling BMW — Newport Beach (Sterling) was required to construct a westerly extension of Avon Street for approximately eighty (80) feet to provide an internal vehicular connection through the site between West Coast Highway and Avon Street. Because of the benefits to traffic circulation in the immediate vicinity, the City agreed to reimburse Sterling fifty - percent (50 %) of the construction costs up to an amount not to exceed $15,000. The roadway extension work, which included asphalt paving, curbs and gutters, and a retaining wall above and behind the new northerly curb, has been completed and inspected as satisfactory for acceptance. Sterling paid $49,018.31 for these improvements. Sterling has requested release of its performance bond for the work and reimbursement for the City's share of the construction costs. The completed improvements will be maintained by the City. RELEASE OF BOND FOR STERLIN&W ON AVON STREET ROADWAY EXTENSION &OVEMENTS March 28, 2006 Page 2 Environmental Review: Provisions of CEQA are not applicable. Attachment: Budget Amendment Submitted by: ephen G. Bad Public Works Director 2 jity of Newport Beacib BUDGET AMENDMENT 2005 -06 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 06BA -052 AMOUNT: $as,000.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appropriations to pay for the City's share of the Avon Street roadway extension work. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Amount Fund Account Description Debit Credit 260 3605 Trans & Circulation Fund - Fund Balance $15,000.00 ` REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Division Number 7261 Account Number C5100697 Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: Signed: Description Description Transportation and Circulation Avon Street Extension Financial Approval: Administr tive Services Director Administrative App oval: City Manager City Council Approval: City Clerk $15,000.00 3 - -) d—�6 Date ,zz vC Date Date 0 March 29, 2006 Sterling Motors, LTD 3100 West Coast Hwy. Newport Beach, CA 92663 0 CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK laVonne M. Harkless, MMC Subject: Construction of Improvements; Parcel Map No. 2002 -154 (C -3603) To Whom it May Concern: On March 28, 2006, the City Council of Newport Beach accepted the public improvements constructed in conjunction with the subject project and authorized the City Clerk to release the Faithful Performance Bond. The Surety for the contract is Federated Mutual Insurance Company, and the bond number is 9307867. Enclosed is the Faithful Performance Bond. Sincerely, LaVonne M. Harkless, MMC City Clerk cc: Public Works Department Fong Tse, P.E., Civil Engineer 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 Ir CITY OF NEWPORT BEACH BOND #9307867 WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of California, and I;terl i ng Motors, LTD , hereinafter designated as "Principal," are about to or have entered into an agreement pursuant to the State of California Subdivision Map Act and the Newport Beach Municipal Code whereby Principal agrees to install and complete certain designated public improvements which said agreement, dated January 17 , 2003 , and identified as Agreement for Construction of Improvements (ResubdivisionfTract No. P.M. 2002 -154 ), 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, FEDERATED MUTUAL NOW, THEREFORE, We the Principal and INSURANCE COMPANY , as surety whose place of business is MN , a corporation organized and doing business under and by virtue of the laws of the State of MINNESOTA 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 Fifteen Thousand Dollars ($15,000), 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, her 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 therefor, 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 judgement 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 FEBRUARY 4 .200i Approved as to 6ffi cy: u Af s Director Appppvg8 as to Form: YJI � i City Attorney F:\Users\PBMDHoffstadt\AG\SUBD-PER.BND STERLING MOTORS, LTD ATTORNEY -IN -FACT • CITY OF NEWPORT BEACH BOND #9307867 • St1RDIVISION I A R OR AND MATFRIAI S R(7ND WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of California, and Sterling MA rs.LTD hereinafter designated as "Principal," are about to or have entered into an agreement pursuant to the State of California Subdivision Map Act and the Newport Beach Municipal Code whereby Principal agrees to install and complete certain designated public improvements which said agreement, dated January 17 2003 and identified as Agreement for Construction of Improvements (Resubdivision/Tract No.P.M. 2002 -154 ), is hereby referred to and made a part hereof (the "Agreement "); and WHEREAS, under the terms of said 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. FEDERATED MUTUAL NOW, THEREFORE, We the Principal and INSURANCE as surety whose place of business is MINNESOTA , a corporation organized and doing business under and by virtue of the laws of the State of MINNESOTA 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 aforesaid Agreement in the penal sum of Dollars ($15,000 ) for equipment and materials furnished or labor thereon of any kind, 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 terns of 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, named on . 2003 . FEBRUARY 4 Approved as to S D en Pubf Director Appr e s to Form: City Attorney this instrument has been duly executed by the Principal and Surety above F:\ Users \PBw\DHoffstadt\AG \SUBD -L &M. B N D By STERLING MOTORS, LTD rinci I Prinbiaal FEDERATED MUTUAL W COMPANY Sur • i POWER OF ATTORNEY KNOW 1? L 'YEN BY THESE PRE SE` TS: Taar F_DEI -= 21v=IUA_L LNSURANCE COMPANY, a corporation dn!v cry ri -ed and - =isrins under the laws of the State of Minnesota, and having its orincipal ozac_ in the City or Owatonna Stare of bliunescra. does hereby consdnne and anpoinn LARRY H PIERCE of the City of OWATONNA &= of MINNESOTA its true and lawful anornev for the following purposes: To sign its rime as suety to, and to e __ure, ai-rr the seal, aclmowiedge and deliver any and all surety bonds and perames not zscm ding: ONE HUNDRED THOUSAND DOLLARS ($100,000) EACH STERLING MOTORS, LTD NEWPORT BEACH, CA Tae zs__ xcn of suca bends or unde mkinri in pursuant= of these presents shall be binding upon to Company as if rev bad be--a e"— arrd and ac mewieQri by the tt=lar.v cde: cd onczrn of the Company. Tais ?cwer of Aacraev unto. by F-tderumd Mutual Insimm= Company shall rer mare when the di=ce_ c_.es to be; 1) Empioved by Fede.-=ed lyfuma-i Insrr..nc: Comranv or Emnioyea by Feseatei &Itmrat Livm=c= .Company in a job for wbica such Power of Attorney is renuircd_ IN SLTIYtSS WFiEREOF, the said F=ERATrD MLiUAL COMP -ANY has n„sed this in=mrar to be sirmed and its rarerare soil to be „_ a:d by its E= = =rive Vice Pr=ide= and Assistaur Sc=ccartitisthe 22ND day of JUNE 2000 F=E:L4Z =J b TiIP.I. INSURANCE C OMPANI' BY JJ��j��ffrr-- (SEEA r) E :=.hive V-1= Presi�dent� —��j and BYS Assistant STATE OF MINNESOTA COUNiC OF ST�r.�T.E On this 22ND day of JUNE 2000 personally appeared before me, the unde;sizted uorary public, Sarah L Buxton and David W Ramsey to me personally known, who, Baca being duly s?/ern by me, did say thar they are mspecavely the Exeattive Vict President and Assistant Se -tear of the FEDERATED MUTUA -L INSURANCE COMPANY and that the seal atnsed to this instrument is rhe-corporate seal of said Corporation and that this inr c.= was sioued and sealed of behalf of said Corporation by authority of its Board of Directors azd said Sarah L Buxton and David W Ramsey acimowledge said instrument to be the free act and deed of said corporaton. jyj KE!1Y J. HAGEN 2T5 � N1 LONNLS910X EXP11iE$ I- 31.iDJJ ;SLAIN-) , � \ i ACKNOWLEDGMENT OF CORPORATE SURETY STATE OF MINNESOTA COUNTY OF STEELE On this 4TH day of FEBRUARY 2003 before me, a Notary Public within and for said County, personally appeared LARRY H PIERCE , who being first duly sworn, says that he /she is the attorney -in -fact of Federated Mutual Insurance Company Surety herein, a Corporation duly organized and existing under laws of the State of Minnesota, and executed the foregoing instrument for and in its behalf, by authority of its Board of Directors; that the seal affixed to the foregoing instrument is the corporate seal of said corporation; and further acknowledged said instrument and the execution thereof to be the voluntary act and deed of said corporation. ' USA ROUSHAR NOyNty pUUrV MSMA MY CpWbStpN E%PIi1E8 t3t•P005 • (NOTARIAL SEAL) BF -21 Ed. 11 -88 /1 k NOT A PUBLIC, STEELE COUNTY MY COMMISSION EXPIRES JANUARY 31, 2005 C -,3,- 0-3 0 AGREEMENT pr FOR CONSTRUCTION OF IMPROVEMENTS PARCEL MAP NO. 2002-154 THIS AGREEMENT, made and entered into this 17th day of January 2003, by and between Sterling Motors LTD, a California Corporation, hereinafter referred to as BUYER, whose address is 3100 West Coast Highway, Newport Beach, California; Robins Properties, a California Limited Partnership, hereinafter referred to as SUBDIVIDER, whose address is 2060 Harbor Boulevard, Costa Mesa, California 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, SUBDIVIDER proposes to subdivide land within the City of Newport Beach to be known Parcel Map No. 2002 -154, (hereinafter the "Subdivision ") pursuant to provisions of the Subdivision Map Act of the State of California and the CITY's ordinances and regulations relating to the filing, approval and recordation of subdivision maps, collectively referred to in this Agreement as the "Subdivision Laws'; and WHEREAS, Subdivision has been approved, subject to the Subdivision Laws and to certain requirements and conditions of approval, which are incorporated into this Agreement by reference ( "Conditions of Approval "); and WHEREAS, SUBDIVIDER and BUYER have entered into an agreement wherein BUYER will purchase certain real property more commonly known as 3100 & 3150 West Coast Highway, Newport Beach, California from SUBDIVIDER who will cause the entire parcel to be subdivided into two approximately equal parcels for the benefit of BUYER, and in accordance with the agreement, SUBDIVIDER assigns to BUYER the obligation to construct public improvements required as conditions of approval. WHEREAS, in consideration of approval of the Subdivision by the CITY, SUBDIVIDER and BUYER desire to enter into this Agreement, whereby BUYER promises to install and complete, at BUYER's own expense, street and other public improvement work required by the conditions of approval in connection with the proposed subdivision, (the "Improvements ") which Improvements, without limitation by enumeration consists of. Curb and gutter, street pavement, sidewalk, and retaining wall. The above description of items is understood to be only a general description of the Improvements, and not a binding description. WHEREAS, City, SUBDIVIDER and BUYER understand and agree that construction of the Improvements shall not commence until after BUYER purchases from SUBDIVIDER all of the Subdivision. DATED: QI -17-03 Ag C.., m f WHEREAS, coplete plans for the construction, instaftion and completion of the Improvements shall be prepared by BUYER 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, SUBDIVIDER recognizes that by approval of the map for the Subdivision, CITY has conferred substantial rights upon SUBDIVIDER and BUYER, including the right to sell, lease, or finance lots within the Subdivision, and has taken the final act necessary to subdivide the property within the Subdivision. As a result, CITY will be damaged to the extent of the cost of installation of the Improvements by BUYER's failure to perform its obligations under this Agreement, including, but not limited to, BUYER'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. It is specifically recognized that the determination of whether a reversion to acreage or recision of the Subdivision constitutes an adequate remedy for default by the BUYER shall be within the sole discretion of the CITY-. and WHEREAS, the provisions of Section 19.16.160 of the Newport Beach Municipal Code provide for an Agreement containing certain provisions as hereinafter set out. NOW THEREFORE, in consideration of their mutual promises, the Parties hereto agree as follows: I. SUBDIVIDER and BUYER agree to comply with all requirements of the Conditions of Approval and with the provisions of the Subdivision Laws. 1 BUYER 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 subdivision, plus any additional improvements required by the Planning Commission or City Council as a condition of approving the subdivision. BUYER agrees to commence the Improvements within a period of thirty six (36) months from the date hereof, and complete same in a normal time frame, unless delayed or restricted by any regulatory authority or other conditions beyond Buyers control, or unless the time is extended by the CITY upon written application of the BUYER. The making of an application for an extension of time by the BUYER shall, upon the granting of the application by the CITY, constitute a waiver by the BUYER of all defenses of laches, estoppel, 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. 3. The Improvements shall be completed to the satisfaction of the City Engineer of CITY, and BUYER 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 Public Works Director. DAl D:01 -17U3 2 Ag ..W.Mf 4. If BUYO shall fail to complete the Improvemos 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 BUYER in accordance with Section 19.16.170 of the Newport Beach Municipal Code or call upon the surety for BUYER 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. BUYER shall also be responsible for the Improvements and the cost thereof. 5. 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 BUYER 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 with 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 BUYER and BUYER's surety and all without the necessity of giving any further notice to the BUYER's or surety before the CITY performs or arranges for performance of any remaining work to complete the Improvements, and whether the BUYER 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 BUYER or surety to cease in order to permit adequate coordination by the CITY for completing any remaining work and improvements not yet completed. 6. BUYER shall at all times guarantee BUYER's performance of this Agreement by furnishing to CITY security in the amount of Fifteen Thousand ($15,000) Dollars to guarantee the performance of this Agreement. The BUYER shall provide security in the amount of Fifteen Thousand ($15,000) Dollars 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 Bonds. 7. The BUYER 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 pavements, 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 BUYER to properly maintain, the CITY may do all necessary work required by this paragraph, the cost DATED: 01.1) -03 3 AgaCDnIfl. �f thereof9ing chargeable to the BUYER anthis surety under this Agreement. 8. 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 Security. The balance of the security shall be released upon the settlement of all claims and obligations for which the security was given. 9. Neither SUBDIVIDER or BUYER nor any of SUBDIVIDER's or BUYER's agents or contractors are or shall be considered to be agents of the CITY in connection with the performance of SUBDIVIDER's or BUYER's obligations under this Agreement. 10. BUYER guarantees and warranties the Improvements for a period of one year following completion and acceptance of the Improvements, against any defective work or labor done to construct the Improvements or defective materials furnished. 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 BUYER, its agents or employees in the performance of this Agreement. BUYER 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 BUYER, 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 subdivision, 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 subdivision or the Improvements pursuant to the approved Improvement Plans or map, regardless of any negligent action or inaction taken by the DA- D:01 -17U3 Q AVe on dmWf CITY Approving the plans or map, unless th0articular improvement design was specifically required by CITY over written objection by BUYER 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 BUYER shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect, however BUYER shall not be responsible for routine maintenance. It is the intent of this section that BUYER 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 BUYER 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, SUBDIVIDER and BUYER have 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. ATTEST: City Clerk APPR VED AS TO FORM: City Attorney DATED. 01-17-03 AgrmC..U. of CITY OF NEWPORT h municipal corpg+iitic M SUBDIVIDER Robins Properties, a Calif o Limited P nership By: L Theo ore Ro ins, Jr., eneral Partner BUYER Sterling NTo Ors LTD, a CaJifo � Coiporatio� By: �z� —� �� 1�z� �- ✓C_ 5 Wayne inor, President W 0 a LL to In 2 W W 0 Q a D W in 0 a 0 a a II it tl ti la II it it li CI 11 I1 IJ 1� 11 1:1 Il li N z °z! a s a a >. n o � a O1- D� O £d Wtl&'C:vo 2©02 VT 'NoN /lCd I55 6P6 'ON 3NOHd 'ONI VN ;d3EHIvN3 'B'N'O : Wei "INDEMNITY AGREEMENT" This Indemnity Agreement ( "Agreement ") is made and entered on this 17th day of January 2003, by and between Sterling Motors Ltd., a California Corporation, hereinafter referred to as "Sterling ", and Robins Properties, a Limited Partnership, hereinafter referred to as "Robins". 1. The City of Newport Beach has requested that Robins and Sterling sign an "Agreement for Construction of Improvements Parcel Map 2002 -154" ( "Construction Agreement ") as a condition for the approval of Parcel Map 2002 -154. A copy of the Construction Agreement is attached hereto as Exhibit "A ". 2. Sterling agrees to protect, defend, indemnify and hold harmless Robins, its partners, personal representatives, agents, attorneys, employees, successors and assigns from any and all claims, demands, causes of action, liability or loss of any sort because of, or arising out of any failure by Sterling to perform its obligations as set forth in the Construction Agreement. 3. This Agreement shall be binding upon and inure to the benefit of the respective heirs, successors, assigns, and personal representatives of the Parties. 4. This Agreement constitutes the entire agreement between the Parties concerning indemnity as related to Parcel Map 2002 -154. 5. This Agreement shall not be amended or modified except in a writing signed by each of the Parties affected by such amendment or modification. 6. If any action at law or equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which it may be entitled. 7. The Parties agree to execute and any and all additional documents reasonably necessary to complete and document this transaction. STERLING MOTORS, LTD., a Cal' is Corporation (Signature) By: l,y" -<. V"I .., (Pant Name) Its: r�rr5,d, T (Print Title) DAT11) 01 -1103 4 niryA� ROBINS PROPERTIES, a California Limited Partnership &001 W iVt,V (Signature) By: Theodore Robins, Jr. (Print Name) Its: General Partner (Print Title) 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT OFD C -3�Do3 Agenda Item No. 6 March 11, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY FROM: Public Works Department Gail P. Pickart, P.E. 949 - 644 -3311 red monston @city. newport- beach.ca. us COUNCIL BY THE CrrY OOUNC L CrrYOF NEWPORT BEACH SUBJECT: APPROVAL OF AGREEMENT AND BONDS FOR PARCEL MAP NO. NP2002 -014 — 3100 AND 3150 WEST COAST HIGHWAY RECOMMENDATION: Approve an Agreement and accompanying security (Bonds) guaranteeing completion of public improvements on Avon Street required as a condition of approval of Parcel Map No. NP2002 -014, and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: On June 5, 2002, the Modifications Committee conditionally approved Parcel Map No. 2002 -014, which covers the properties at 3100 and 3150 West Coast Highway, the closed Auto Bistro food facility and adjacent auto sales building. A condition of approval requires the subdivider to construct an 80 -foot long, half -width westerly extension of Avon Street. The extended street improvements will facilitate vehicular circulation through the property between Avon Street and West Coast Highway. The subdivider, Robins Properties, wishes to record the Parcel Map before completing the required Avon Street extension improvements. An Agreement and accompanying security (a faithful performance bond and for labor and materials payment bond) have been executed by the subdivider to guarantee completion of the required public improvements subsequent to map recordation. The bonds are each in the amount of $15,000, which is the estimated cost of the half -width street improvements. The subdivider agrees to build full -width street improvements and the City will reimburse the subdivider up to a maximum of $15,000 upon satisfactory completion of the other half - width. Staff recommends this reimbursement arrangement because of the benefit to overall traffic circulation in the vicinity by extending Avon Street and because the property on the northerly side of Avon Street consists of a relatively steep slope and the residence above takes access from Cliff Drive. Therefore, it is very unlikely the northerly property SUBJECT: Approval of Agreern d Bonds for Parcel Map No. NP2002 -014 • March 11, 2003 Page 2 owner will ever be in a position to complete half -width street improvements along their frontage. An Exhibit is attached for reference. Funds for the City's share of the improvements are available in the following account: Description Account No. Amount Transportation and Circulation Fund 7261- C5100697 $15,000.00 Environmental Review: This project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) under Class 15 (Minor Land Divisions). Prepared by: Gail P. Pickart, P.E. Project Manager Submitted by: Stephen G. Badum Public Works Director • AGREEMENT • FOR CONSTRUCTION OF IMPROVEMENTS PARCEL MAP NO. 2002-154 THIS AGREEMENT, made and entered into this 17th day of January 2003, by and between Sterling Motors LTD, a California Corporation, hereinafter referred to as BUYER, whose address is 3100 West Coast Highway, Newport Beach, California; Robins Properties, a California Limited Partnership, hereinafter referred to as SUBDIVIDER, whose address is 2060 Harbor Boulevard, Costa Mesa, California 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, SUBDIVIDER proposes to subdivide land within the City of Newport Beach to be known Parcel Map No. 2002 -154, (hereinafter the "Subdivision ") pursuant to provisions of the Subdivision Map Act of the State of California and the CITY's ordinances and regulations relating to the filing, approval and recordation of subdivision maps, collectively referred to in this Agreement as the "Subdivision Laws'; and WHEREAS, Subdivision has been approved, subject to the Subdivision Laws and to certain requirements and conditions of approval, which are incorporated into this Agreement by reference ( "Conditions of Approval "); and WHEREAS, SUBDIVIDER and BUYER have entered into an agreement wherein BUYER will purchase certain real property more commonly known as 3100 & 3150 West Coast Highway, Newport Beach, California from SUBDIVIDER who will cause the entire parcel to be subdivided into two approximately equal parcels for the benefit of BUYER, and in accordance with the agreement, SUBDIVIDER assigns to BUYER the obligation to construct public improvements required as conditions of approval. WHEREAS, in consideration of approval of the Subdivision by the CITY, SUBDIVIDER and BUYER desire to enter into this Agreement, whereby BUYER promises to install and complete, at BUYER's own expense, street and other public improvement work required by the conditions of approval in connection with the proposed subdivision, (the "Improvements ") which Improvements, without limitation by enumeration consists of Curb and gutter, street pavement, sidewalk, and retaining wall. The above description of items is understood to be only a general description of the Improvements, and not a binding description. WHEREAS, City, SUBDIVIDER and BUYER understand and agree that construction of the Improvements shall not commence until after BUYER purchases from SUBDIVIDER all of the Subdivision. DATED. 01 -17 -03 AgeeConsdmMf WHEREAS, • plete plans for the construction, installation and completion of the Improvements shall be prepared by BUYER 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, SUBDIVIDER recognizes that by approval of the map for the Subdivision, CITY has conferred substantial rights upon SUBDIVIDER and BUYER, including the right to sell, lease, or finance lots within the Subdivision, and has taken the final act necessary to subdivide the property within the Subdivision. As a result, CITY will be damaged to the extent of the cost of installation of the Improvements by BUYER's failure to perform its obligations under this Agreement, including, but not limited to, BUYER'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. It is specifically recognized that the determination of whether a reversion to acreage or recision of the Subdivision constitutes an adequate remedy for default by the BUYER shall be within the sole discretion of the CITY; and WHEREAS, the provisions of Section 19.16.160 of the Newport Beach Municipal Code provide for an Agreement containing certain provisions as hereinafter set out. NOW THEREFORE, in consideration of their mutual promises, the Parties hereto agree as follows: I. SUBDIVIDER and BUYER agree to comply with all requirements of the Conditions of Approval and with the provisions of the Subdivision Laws. 2. BUYER 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 subdivision, plus any additional improvements required by the Planning Commission or City Council as a condition of approving the subdivision. BUYER agrees to commence the Improvements within a period of thirty six (36) months fibm the date hereof, and complete same in a normal time frame, unless delayed or restricted by any regulatory authority or other conditions beyond Buyers control, or unless the time is extended by the CITY upon written application of the BUYER. The making of an application for an extension of time by the BUYER shall, upon the granting of the application by the CITY, constitute a waiver by the BUYER of all defenses of laches, estoppel, 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. 3. The Improvements shall be completed to the satisfaction of the City Engineer of CITY, and BUYER 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 Public Works Director. DATED: 01 -17 -03 2 ApecCovWnpmf 4. If BUR shall fail to complete the Improve• YE ts 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 BUYER in accordance with Section 19.16.170 of the Newport Beach Municipal Code or call upon the surety for BUYER 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. BUYER shall also be responsible for the Improvements and the cost thereof. 5. 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 BUYER 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 with 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 BUYER and BUYER's surety and all without the necessity of giving any further notice to the BUYER's or surety before the CITY performs or arranges for performance of any remaining work to complete the Improvements, and whether the BUYER 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 BUYER or surety to cease in order to permit adequate coordination by the CITY for completing any remaining work and improvements not yet completed. 6. BUYER shall at all times guarantee BUYER's performance of this Agreement by famishing to CITY security in the amount of Fifteen Thousand ($15,000) Dollars to guarantee the performance of this Agreement. The BUYER shall provide security in the amount of Fifteen Thousand ($15,000) Dollars to guarantee payment to any contractors, subcontractors, and persons famishing labor, materials and equipment to them for the performance of the work herein described. Said security shall be in the form of Bonds. 7. The BUYER 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 pavements, 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 BUYER to properly maintain, the CITY may do all necessary work required by this paragraph, the cost DATED: 01 -1] -03 3 Agm ...Mf thereopleing chargeable to the BUYER q his surety under this Agreement. 8. 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 Security. The balance of the security shall be released upon the settlement of all claims and obligations for which the security was given. 9. Neither SUBDIVIDER or BUYER nor any of SUBDIVIDER's or BUYER's agents or contractors are or shall be considered to be agents of the CITY in connection with the performance of SUBDIVIDER's or BUYER's obligations under this Agreement. 10. BUYER guarantees and warranties the Improvements for a period of one year following completion and acceptance of the Improvements, against any defective work or labor done to construct the Improvements or defective materials furnished. 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 BUYER, its agents or employees in the performance of this Agreement. BUYER 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 o% the negligent or intentional acts or omissions of BUYER, 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 o% 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 subdivision, 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 subdivision or the Improvements pursuant to the approved Improvement Plans or map, regardless of any negligent action or inaction taken by the DATED: 01 -1743 4 Am Onsw pmf CITY in aannroving the plans or man. unless topDarticular improvement design was specifically required by CITY over written objection by BUYER 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 BUYER shall remain obligated to eliminate any defect in design or dangerous condition caused by the design or construction defect, however BUYER shall not be responsible for routine maintenance. It is the intent of this section that BUYER 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 BUYER 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, SUBDIVIDER and BUYER have 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. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney DATED: 01 -17 -03 AVmC.nW. of CITY OF NEWPORT BEACH, A' municipal corporation IC Mayor SUBDIVIDER Robins Properties, a Califiorni Limited PaAnership 1V-41J4M6-1- By: �/ Theo ore Ro ins, Jr., Peneral Partner BUYER Sterling-Mo rs LTD, a Califo Corpora By: 5 Wayne Minor, President W a 0 Q LL ol I r2 W 2 lu 0 m a 0 W 0 a 0 a I 0 0 H rl fl EI N I, p 41 � I, I1 U 11 0 f:, h Il$ I ��1�1. 7FOY t ;: N o z °z� a ku z >; 1 'Z O� o3 po . �o £d WH£t:v9 ZOOZ K 'roN ZLcE 265 61'6: 'ON 3NDHd 'JNI MNTI �Iaa '8'N'0 : WMW z � •'{ its �' �� ' �� £d WH£t:v9 ZOOZ K 'roN ZLcE 265 61'6: 'ON 3NDHd 'JNI MNTI �Iaa '8'N'0 : WMW • 0 "INDEMNITY AGREEMENT" This Indemnity Agreement ( "Agreement ") is made and entered on this 17th day of January 2003, by and between Sterling Motors Ltd., a California Corporation, hereinafter referred to as "Sterling ", and Robins Properties, a Limited Partnership, hereinafter referred to as "Robins ". 1. The City of Newport Beach has requested that Robins and Sterling sign an "Agreement for Construction of Improvements Parcel Map 2002 -154" ( "Construction Agreement ") as a condition for the approval of Parcel Map 2002 -154. A copy of the Construction Agreement is attached hereto as Exhibit "A ". 2. Sterling agrees to protect, defend, indemnify and hold harmless Robins, its partners, personal representatives, agents, attorneys, employees, successors and assigns from any and all claims, demands, causes of action, liability or loss of any sort because of, or arising out of any failure by Sterling to perform its obligations as set forth in the Construction Agreement. 3. This Agreement shall be binding upon and inure to the benefit of the respective heirs, successors, assigns, and personal representatives of the Parties. 4. This Agreement constitutes the entire agreement between the Parties concerning indemnity as related to Parcel Map 2002 -154. 5. This Agreement shall not be amended or modified except in a writing signed by each of the Parties affected by such amendment or modification. 6. If any action at law or equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which it may be entitled. 7. The Parties agree to execute and any and all additional documents reasonably necessary to complete and document this transaction. STERLING MOTORS, LTD., a California Corporation (Signature) By: Svc , m r f (Print Nae) (Print Title) DATM 01 -17 -03 Dann yAp� ROBINS PROPERTIES, a California Limited Partnership V (Signature) By: Theodore Robins. Jr. (Print Name) Its: General Partner (Print Title) 0 • BOND #9307867 CITY OF •O :r •► FAITHFUI PERFORMANCE :•►D WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of California, and Sterling_ Motors. LTD , hereinafter designated as "Principal," are about to or have entered into an agreement pursuant to the State of California Subdivision Map Act and the Newport Beach Municipal Code whereby Principal agrees to install and complete certain designated public improvements which said agreement, dated January 17 , 20o 3 , and identified as Agreement for Construction of Improvements (Resubdivision/Tract No. P 2002 -154 ), 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, FEDERATED MU'T'UAL NOW, THEREFORE, We the Principal and INSURANCE COMPANY , as surety whose place of business is MIN , a corporation organized and doing business, under and by virtue of the laws of the State of MINNESOTA 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 Fifteen Thousand Dollars ($15,000), 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, her 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 therefor, 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 judgement 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 FEBRUARY 4 2003 Approved as to vffi ' ey: u s Director Approved as to Form: City Attorney F: \Users \PB W\DHoffstadtWG \SUBD- PER.BND STERLING MOTORS, LTD l ina I Principal FEDERATED MUTUAL IN NY ety �— By LAR IERCE ATTORNEY -IN -FACT 0 CITY OF NEWPORT :D •► I ABOR AND u_ :•►D WHEREAS, the City Council of the City of Newport Beach, County of Orange, State of California, and Sterling MDtOrs.M hereinafter designated as "Principal," are about to or have entered into an agreement pursuant to the State of California Subdivision Map Act and the Newport Beach Municipal Code whereby Principal agrees to install and complete certain designated public improvements which said agreement, dated January 17 2003 and identified as Agreement for Construction of Improvements (Resubdivision/Tract No. P.M. 2002 -154 ), is hereby referred to and made a part hereof (the "Agreement "); and WHEREAS, under the terms of said 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. FEDERATED MUTUAL NOW, THEREFORE, We the Principal and INSURANCE COMPANY as surety whose place of business is MINNESOTA , a corporation organized and doing business under and by virtue of the laws of the State of MINNESOTA 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 aforesaid Agreement in the penal sum of Dollars ($15,000 ) for equipment and materials furnished or labor thereon of any kind, 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 terns of 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 named on . 2003 . FEBRUARY 4 Approved as to S Bien i PubItEWWDirector Approved as to Form: City Attorney this instrument has been duly executed by the Principal and Surety above F:lUserslPB+MDHoffsladtW G \SUED -LBM. BND By STERLING MOTORS, LTD Princip I t Pnnc gal FEDERATED MUTUAL INSU CCMPANY SureLy�:� H P ATTORNEY —IN —FACT 0 POWER OF ATTORNEY R- OF%AIL 2YGN BY7 ESEPRFSL S: • i�T i�-R.A� Y ! uAL INS- R�NiCF COiv . -VY, a corporation duiv cr_zinizd and ezi_=2 tinder 3e law- of the S=c of : rinnesor-, and having its prnc:oai once m the Cir✓ of Owatonna. State Cf Mmnesor does he-bv c=4=e and appoint LARRY H PIERCE of the City of OWATONNA c7t= of MINNESOTA its true and lawtui attorney for ttte foilcwinz pt<_-pcses: To sib*+ im name as surety to, and to e� cus, ate: the set acimowied_ -e and de Liver any and all sar°y bonds and oe^S 171eS not e_...eedinsr - ONE HUNDRED THOUSAND DOLLARS ($100,000) EACH STERLING MOTORS, LTD NEWPORT BEACH, CA of suca bends or unde^�—Lor in eL^ ==CZ or tese heats stall be bindins urca =e Cemaany as `ey bad been and ac=cwie -_ge by to r__ilar :v e_ rEice s of tre CcmcamY. ills ?owe of A oruev ��ted by Fde^ 1i s a1 i.nsur nce Contpuny saa l te_ Hare when he a�iane c= e c be_ i) F=pieved by c__==_: 1-Iur.ai :=-ac= Company cr Ernnieyed by Fe --J=u i �lur al It!- ur.,nc Company m a job for wbica such Power of ✓ A=rncv is ruir- _ LN 7vl=q S A =OF, the said r�RR4I� lILT7e7 II�S�Ra�iC= COMPA- y bas ruse✓ this m be si:ad and = c^tyer= seal to be T*-- by is L;.._,tdve Vice P— . -ideat and A�sissm Se===_^y-±istile 22ND day of JUNE 2000 r�;�a� As. LNSLZ4.?v�ONL�'Ay'Y L.;._�.P3ve V iCe PI'eSla/e3t/�-- and BY z 5 _A._ OF �y LN �:=_`U Ti COTJNFE OF S%-E E On his 22ND day of JUNE 2000 nescnaIly apne=rd before me, the unders=ea' not_-v public Saran L nLs:aon and David W Ramsev to me pe:sonaly known, wbe, each being duly sworn by me, did say that thev are ;se ^veiv the F ;_—.Idve Vice Prsideat and Assi--jnt Se- -3ry of the r Ems? i= l�'1Ui'CA LNSUR-i- z cbb'2A�Y and hat the sell a axed to is ✓smear s the co porste seal of said Ce ?oracian and tat *tis ins- _merit was sizIed and sealed of behalf or said Corporation by authority of its Board of Directors aid said Satrh L 3ux-on and David W Rams--v ackaew•ied_se said ins=meat to be the nee act and deed of said C�r'iJGty -7CC. KELLY J. HAGEN. NOTA P BLC.LINNEJOTA yT - '�AUt�N EkPIFTcS I.11 2005 • A ACKNOWLEDGMENT OF CORPORATE SURETY STATE OF MINNESOTA COUNTY OF STEELE On this 4TH day of FEBRUARY 2003 before me, a Notary Public within and for said County, personally appeared LARRY H PIERCE who being first duly sworn, says that he /she is the attorney -in -fact of Federated Mutual Insurance Company Surety herein, a Corporation duly organized and existing under laws of the State of Minnesota, and executed the foregoing instrument for and in its behalf, by authority of its Board of Directors; that the seal affixed to the foregoing instrument is the corporate seal of said corporation; and further acknowledged said instrument and the execution thereof to be the voluntary act and deed of said corporation. • • LISA ROUSHAR Is NOTARY PUBLC AMESMA My COMMISSION EXPIRES 131.20 • (NOTARIAL SEAL) BF -21 Ed. 11 -88 NOT A PUBLIC, STEELE COUNTY MY COMMISSION EXPIRES JANUARY 31, 2005